Super PAC Scheme

Campaign Finance Watchdogs Call On Justice Department To Investigate Jeb Bush's Super PAC Scheme

Paul Blumenthal

Proponents of campaign finance reform are asking the Department of Justice to appoint an independent special prosecutor to investigate possible violations of campaign finance law by former Florida Gov. Jeb Bush as he seeks the Republican Party's presidential nomination.

The request from Democracy 21 and the Campaign Legal Center, sent to Attorney General Loretta Lynch on Wednesday, alleges that Bush’s creation and operation of the Right to Rise Super PAC are in violation of a section of the Bipartisan Campaign Reform Act of 2002 (more commonly known as McCain-Feingold after its chief Senate sponsors). The provision in question bans an entity created by a candidate or anyone acting on a candidate's behalf from raising or spending money on an election outside of the base contribution limits -- which currently limit contributions to $5,400 per donor.

“[T]here are powerful grounds to believe that both Bush and the Right to Rise Super PAC are violating these prohibitions and, in so doing, that they are engaged in a scheme to allow unlimited contributions to be spent directly on behalf of the Bush campaign and thereby violate the candidate contribution limits enacted to prevent corruption and the appearance of corruption,” the request states.

Bush announced in December that he would “actively explore the possibility of running for President of the United States.” This hedged proclamation was a carefully crafted legal statement indicating that he was not yet a declared candidate and, thus, could evade campaign finance laws. Bush has since run his not-quite campaign out of his super PAC while collecting seven-figure contributions outside the traditional legal structure of contribution limits.

The groups behind the complaint have already filed complaints with the Federal Election Commission, which oversees campaign finance laws. The decision to move the request to the Department of Justice comes after FEC Chair Ann Ravel told The New York Times that the commission will not be able to adequately enforce the laws on the books.

“[T]he Department of Justice has its own separate responsibility to enforce the campaign finance laws against 'knowing and willful' violations,” the complaint states.

Since Bush announced his intent to maybe run for president, the former governor's team has defended his direct involvement in running the Right to Rise super PAC by noting that he is not yet a candidate. This has continued even after Bush accidentally declared, “I’m running for president in 2016,” before walking it back by saying, “if I run.”

Fred Wertheimer, president of Democracy 21, previously explained to The Huffington Post that the law does not leave it up to potential candidates to decide when they are or are not officially in the race.

“Whether he’s a candidate or not does not depend on any formal declaration by him,” Wertheimer said. “As far as we are concerned, he is and has been a candidate for some time. That’s why we filed the complaint and we are looking at further action in relationship with the super PAC that is supporting him and that he was involved in creating.”

This argument is an important starting point for the groups in their call for a Justice Department investigation.

“An individual becomes a 'candidate' if the individual raises 'funds in excess of what could reasonably be expected to be used for exploratory activities or undertakes activities designed to amass campaign funds that would be spent after he or she becomes a candidate,'" the complaint states, quoting from relevant campaign finance law.

The groups argue that an independent special prosecutor should be appointed to investigate the case, since it would be highly sensitive for a Democratic administration to investigate a criminal complaint against a presidential candidate from the opposing party.

“The investigation of a Republican candidate for president by a Justice Department headed by an Attorney General appointed by a Democratic president poses a conflict of interest and an appearance problem. Further, it would be in the public interest to appoint a Special Counsel for this politically sensitive matter in order for the investigation and its conclusions to have credibility with the public,” the complaint reads.

Bush is expected to have raised $100 million for his super PAC by the end of the first reporting period on June 30. The funds will undoubtedly be spent on his presidential campaign, which, as previously noted, he can barely keep from announcing.

The Justice Department has shown a recent willingness to probe this issue. Earlier this year, Tyler Harber became the first person convicted for illegal coordination between a super PAC and a campaign. Harber, who was running Republican Chris Perkins' congressional campaign in Virginia, surreptitiously set up a super PAC to support Perkins while also directing money to himself. He pleaded guilty in February.