POLITICS

Jeb Bush, Taking His Time, Tests the Legal Definition of Candidate

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Jeb Bush addressing the news media on Tuesday in Orlando, Fla. Some election experts say he should be subject to rules that declared candidates must follow. Joe Raedle/Getty Images 
WASHINGTON —  Jeb Bush is under growing pressure to acknowledge what seems obvious to some voters and election lawyers: He is running for president.
The lawyers say Mr. Bush, a former Florida governor, is stretching the limits of election law by crisscrossing the country, hiring a political team and raising tens of millions of dollars at fund-raisers, all without declaring — except once, by mistake — that he is a candidate.
Some election experts say Mr. Bush passed the legal threshold to be considered a candidate months ago, even if he has not formally acknowledged it. Federal law makes anyone who raises or spends $5,000 in an effort to become president a candidate and thus subject to fund-raising, spending and disclosure rules. Greater latitude is allowed for those who, like Mr. Bush, say they are merely “testing the waters” for a possible run.
“When you look at the totality of the activities, could a reasonable person conclude anything other than that he is seeking the presidency?” asked Karl J. Sandstrom, a campaign finance lawyer who served on the Federal Election Commission.

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For a candidate to avoid restrictions by simply not declaring his candidacy, he said, “makes a mockery of the law.”
The issue is not one of mere semantics. If Mr. Bush did declare that he was running, it would bring a raft of election restrictions, including a limit of $2,700 on contributions and a ban on “coordinating” with a “super PAC” he has used to raise money.
But much of campaign finance law is a subject of dispute, and defining who is a candidate is no exception.
David M. Mason, a former F.E.C. commissioner, said a 1981 case involving the possible presidential campaign of the former Florida governor Reubin Askew gave politicians wide latitude to take steps to “explore” a run.
“You can’t enforce the law based on what everybody ‘knows,’ because that requires you to be a mind reader,” Mr. Mason said. “The broad impression — ‘oh yeah, he’s campaigning, he’s been in Iowa, he made a speech, then went to New Hampshire’ — is not enough to make him a candidate.”
Mr. Bush, who announced in December that he would “actively explore” a White House bid, has said repeatedly that he has not made a decision. But he has faced rising skepticism in recent weeks.
In an appearance Sunday on CBS’s “Face the Nation,” the host, Bob Schieffer, asked Mr. Bush bluntly whether he was violating the law by not declaring himself a candidate for the White House.
“No, of course not,” Mr. Bush responded, appearing jarred by the question. “I would never do that.”
Mr. Bush said he was “nearing the end of this journey of traveling and listening to people, garnering, trying to get a sense of whether my candidacy would be viable or not.”
He added, “We’re going to completely adhere to the law, for sure.”
Mr. Schieffer sounded incredulous. “Now, you’re not telling me there’s a possibility you may not run?” he asked.
Mr. Bush did not waver. “Look, I hope I — I hope I run, to be honest with you,” he said. “I would like to run. But I haven’t made the decision.”
Last month, he slipped up for a moment, telling reporters in Nevada, “I am running for president in 2016.” He quickly corrected himself, adding, “if I run.”
In his appearance at $25,000-a-head fund-raisers in Washington, New York and elsewhere, Mr. Bush and his advisers are using what are technically considered outside groups — two political action committees, both called Right to Rise — to take in the money, rather than creating an official campaign organization to do it.
Last week, two campaign watchdog groups, Democracy 21 and the Campaign Legal Center, called on the Justice Department to appoint a special counsel to investigate whether Mr. Bush had broken election law by avoiding restrictions on candidates.
The groups called his noncandidacy “a charade” and called on prosecutors to intervene because they said the F.E.C., perpetually gridlocked, was unlikely to do anything.
The groups filed an earlier complaint with the F.E.C. in March charging that Mr. Bush and three other politicians — Martin O’Malley, a Democrat, and Scott Walker and Rick Santorum, both Republicans — were evading campaign finance restrictions by not declaring themselves candidates. (Mr. O’Malley and Mr. Santorum have each declared their candidacy in the past week.)
Both Mr. Walker and Gov. Chris Christie of New Jersey have also been actively campaigning in key states and raising money without declaring whether they will actually run.
But Mr. Bush appears to be outpacing all of his Republican rivals, declared or undeclared, in both the money he has raised and the elaborate political network he has set up. Groups supporting him could raise $100 million by the time they file their first fund-raising figures in July.
“You can say you haven’t decided,” said Trevor Potter, the president of the Campaign Legal Center. “But if you go off and look like a candidate and act like a candidate and amass funds, it doesn’t matter. You are a candidate in the eyes of the law.”
As he travels through Iowa, New Hampshire, Michigan and other crucial states, Mr. Bush has certainly seemed like a candidate. He arrives in a black sport utility vehicle, talks about his vision for the country, shakes hands, answers questions and poses for photographs with voters until aides drag him to his next event.
“I really like campaigning,” Mr. Bush told businessmen in Portsmouth, N.H., last month, before quickly adding, “I’m not a candidate.”
By all accounts, Mr. Bush is enjoying what he calls the “journey” of a possible candidate, but he has made sure in most appearances to throw in the legal caveats.
“Let me be clear,” he said Tuesday at an event in Orlando, Fla. “If I run, if I’m a candidate — and that decision is going to be coming real soon — my intention is to run on my record and my ideas and try to win the presidency.”
Amid the verbal jujitsu, reporters have begun to press Mr. Bush.
In Lansing, Mich., a reporter asked him, “How important is transparency in a presidential candidate?”
Smiling, Mr. Bush asked if it was a trick question. “Where are you going with it?” he asked.
The reporter then ticked off an account of Mr. Bush’s recent visits and fund-raisers before asking, “Are you running for president?”
Chuckling, Mr. Bush said, “Not yet.” He quickly took another question — this one on Senator Rand Paul, a declared Republican candidate.
The wait is making some voters anxious.
As Mr. Bush was leaving a Lincoln Day dinner in Bath Township, Mich., a woman wearing a photograph of him around her neck chased him outside.
“Run, Jeb, run!” she chanted. “Run, Jeb, run! We need you!”
Mr. Bush smiled and waved as he was driven away.