Pushes boundaries in election

Scott Walker pushes candidate boundaries, from 2012 recall to 2016 presidential election

By Jessie Opoien

Scott Walker is not a candidate for president.

And two months before he defeated Milwaukee Mayor Tom Barrett in a June 2012 recall election, he wasn't a gubernatorial candidate.

At least, that's what his attorney argued in legal filings made public by the Wisconsin Supreme Court on Wednesday.

Just as Walker's decision to push the boundaries on the timing of a presidential announcement has raised eyebrows among campaign finance watchdogs, the argument that he wasn't a candidate until April 9, 2012, for a June 5 election has given some critics pause.

The previously sealed, heavily redacted records come from three cases before the state Supreme Court that will determine whether a stalled John Doe probe into whether Walker's campaign illegally coordinated with conservative groups in 2011 and 2012 can continue.

In one document, Walker campaign attorney Stephen Biskupic argued that Walker wasn't yet a candidate when he worked closely with those groups.

"In the case of the 2012 gubernatorial recall, Governor Walker's 'candidacy' did not begin until April 9, 2012. And prior to that time, Governor Walker and his campaign committee were entitled to raise unlimited campaign funds in connection with opposing the circulation of the recall petitions," Biskupic wrote.

When is a candidate a candidate?: Wisconsin edition

Biskupic's argument is based on state law that says when a recall petition is filed against an elected official, that official becomes a candidate within 10 days of the filing unless the candidate declines or registers candidacy sooner.

"Aaccording to Wisconsin constitutional and statutory provisions, the triggering events for recall candidacy were not initiated until November 15, 2011 (when the Committee to Recall Walker filed the necessary registration with the GAB), and were not completed until April 9, 2012 (10 days after the recall petition was 'filed')," Biskupic wrote.

During regular elections, state law prohibits individuals from donating more than $10,000 to a gubernatorial candidate.

But in the case of a recall election, incumbents can raise unlimited cash with no contribution limits for a period starting with the launch of the petition drive and ending the day the Government Accountability Board authorizes an election.

While the Committee to Recall Walker did launch its petition drive on Nov. 15, 2011, a Walker supporter triggered the period of unlimited fundraising 11 days earlier by registering a recall effort under Close Friends to Recall Walker on Nov. 4, 2011.

Biskupic doesn't mention that in his argument. Jenni Dye, attorney and research director for the liberal group One Wisconsin Now, suggested two explanations for that. Having the recall effort launched by a Republican to trigger unlimited fundraising doesn't jibe with Walker's narrative as a victim of 'Big Labor' and 'big government special interests,' she said.

"It's also another example of how the Walker GOP machine has been willing to twist and bend the real purposes of our laws in whatever way benefits him politically," Dye said.

"From dirty tricks in his college elections on through his taxpayer subsidized campaign for president today, Scott Walker has always played fast and loose with the rules," said Democratic Party of Wisconsin spokeswoman Melissa Baldauff. "It's not surprising that same ethical laxness applied to his recall election."

In another brief, John Doe special prosecutor Francis Schmitz disputed Biskupic's interpretations of the statutes regarding candidacy and campaign finance laws, arguing the interpretation is "clearly not logical."

Dye pointed to a state statute defining candidacy: "'Candidate' means every person for whom it is contemplated or desired that votes be cast at any election held within this state, other than an election for national office, whether or not the person is elected or nominated, and who either tacitly or expressly consents to be so considered," according to the passage.

Walker started running ads referencing the recall in November 2011. His first ad in advance of the recall launched on Nov. 14, 2011, and his first ad mentioning the recall went up on Nov. 21, 2011.

His campaign ran eight TV ads between Nov. 14, 2011 and April 9, 2012, the day Biskupic said he became a candidate.

"Long before April of 2012, Gov. Walker had begun running campaign ads promoting himself and his agenda in an effort to survive the recall," Dye said. "The argument that he wasn't a candidate until April is nonsense and is just another example of Walker's willingness to push the boundaries of the law and common sense in the relentless pursuit of his own political ambitions. His contention in court is not at all supported by his actions, like running television ads paid for by his campaign."

When is a candidate a candidate?: National edition

The 2012 recall election isn't the only race in which Walker has tested the definition of when a candidate is a candidate. He's one of a handful of presidential hopefuls who have, in anticipation of the 2016 election, done just about everything but declare candidacy.

The reason? Until they announce, they can coordinate with super PACs. Once candidacy is announced, that kind of coordination is prohibited.

In January, Walker announced the formation of Our American Revival, a 527 committee that has essentially served as his campaign operation while he travels throughout the country and across the globe, giving speeches in early-vote states like Iowa and New Hampshire.

Walker is allowed to raise unlimited funds for the committee, but cannot use it to back other candidates, and will be required to disclose contributions and expenditures. It's registered through the Internal Revenue Service and not the Federal Election Commission.

Last month, a team of Walker aides launched the Unintimidated super PAC, whose name references his 2013 book, "Unintimidated: A Governor's Story and a Nation's Challenge."

But Walker isn't the only not-quite-candidate with multiple fundraising organizations. Former Florida Gov. Jeb Bush has a super PAC, a leadership PAC and a nonprofit. Ben Carson, Carly Fiorina, former Maryland Gov. Martin O'Malley, Louisiana Gov. Bobby Jindal and Ohio Gov. John Kasich have all launched committees without making announcements.

A recent Politico article referred to 2016 as the year of "SuperPAC 2.0," noting how rapidly campaign finance activity has changed even since 2012, the first presidential election that used super PACs.

Two watchdog groups have filed complaints against a handful of candidates on both sides of the aisle they say are skirting federal laws by acting as candidates -- or at the very least "testing the waters" -- without declaring.

The rules are different for candidates like Walker, Bush and O'Malley than they are for Sens. Marco Rubio and Ted Cruz. Federal officeholders are bound to restrictions that bar them from soliciting donations beyond $5,000.

But for those with looser guidelines, it's a good year to experiment. Ann M. Ravel, chairwoman of the Federal Election Commission, told the New York Times earlier this month that "the likelihood of the laws being enforced is slim."

Ravel said it was "absurd" to think the politicians in question aren't considering White House bids under federal law.

"There is a question about how 'by the letter' these rules should be interpreted for folks who are obviously running for something, if they have not yet announced they are running for president," said Michael Wagner, an assistant professor of journalism and political science at the University of Wisconsin-Madison.

The country has had few elections since the Supreme Court's Citizens United decision, and the rules keep changing, Wagner said, noting that there's not enough history to say when the best time for a candidate to announce might be.

"I think we're seeing experimenting," he said. "Risk-averse politicians like Jeb Bush and Gov. Walker are going to wait as long as possible before they commit. They could certainly just declare, but ... they might be losing an advantage if they declare."

The uncertainty and lack of historical record mean it's hard to predict what the best strategy might be, Wagner said.

Walker, on the heels of a trip to Israel, is set to address the Republican Party of Wisconsin state convention this weekend before traveling to Iowa for a handful of public and private events. He has said he won't announce any decision regarding a presidential run until after the state budget is signed.