Those of you with long memories may recall that in August 2007, blogger Lane Hudson filed a complaint with the Federal Election Commission alleging that Fred Thompson had violated restrictions on "testing the waters" funds for candidates for President. Said Hudson (and I agreed), Thompson was raising large sums of money beyond what would be required to explore a possible candidacy, signed a long term lease on a headquarters for his campaign, and most importantly made a number of public statements making plain that he had decided to run for President and was no longer "exploring" anything, including:
"You're either running or you're not running. I think the steps we've taken are pretty obvious."
"I can't remember exactly the point that I said, 'I'm going to do this, But when I did, the thing that occurred to me: 'I'm going to tell people that I am thinking about it and see what kind of reaction I get to it.'"
"We are going to be getting in if we get in, and of course, we are in the testing the waters phase. We're going to be making a statement shortly that will cure all of that. But yeah, we'll be in traditionally when people get in this race"
[Thompson advisor Mary Matalin:] "He has made up his mind. And one can appreciate that planning the announcement of what's on his mind needs to take place in a deliberative fashion."
The FEC has finally ruled, and by a 4-2 vote (including three Republican Commissioners) the Commission has decided to overrule the recommendations of its permanent staff and find that no violation occurred, believing that his public statements left enough wiggle room to make someone believe he wasn't yet running. No further investigation was required; instead, the FEC has decided to read Thompson's language quite generously. Here's what they said (PDF):
In an article dated June 26, 2007, Senator Thompson is quoted saying to an audience that he is "testing the waters" and "the waters feel pretty warm to me." He added, "You’re either running or not running. I think the steps we’ve taken are pretty obvious." Fred Thompson Defends Record as Lobbyist, ASSOC. PRESS, Jun. 26, 2007. Thus, he explicitly said he was testing the waters. The statement about the steps being "pretty obvious" may have been intentionally ambiguous (was it obvious that he was running or obvious that he was not yet running?), but they do not establish that Senator Thompson had decided to run.
In an August 17, 2007 interview on CNN, Senator Thompson said, "We are going to be getting in if we get in, and of course, we are in the testing the waters phase," adding, "we’re going to be making a statement shortly that will cure all of that. But yeah, we’ll be in traditionally when people get in this race." Interview by John King with Sen. Fred Thompson, CNN NEWS, Aug. 17, 2007, "[W]e’re going to be making a statement shortly" could simply mean that he anticipated making a decision soon. "[W]e’ll be in traditionally when people get in this race" could be read as subject to the preceding qualifiers "if we get in, and of course, we are in the testing the waters phase." In light of Senator Thompson's phrasing, these statements are not sufficient by themselves to find reason to believe a violation occurred.
Finally, we do not find it dispositive that the committee had reportedly signed a long-term lease on a building in Nashville, Tennessee to serve as national headquarters. The mere signing of a long-term lease does not necessarily alter the testing the waters analysis because one could sign a long-term lease for other reasons. For instance, many property owners require a 12-month lease. The length of a lease, by itself, does not demonstrate that an individual has decided to run for office.
As to Thompson's raising of funds well in excess of that which would be reasonably required for exploratory activities (~$3.4M, compared with ~600K spent), the Commissioners were silent.
Let's remember why this matters: first, for Thompson, he was successfully able to delay disclosing who his contributors were for three months, hiding useful information from the public as to his backers. And as for the FEC itself, this makes plain that the three new Republican commissioners may not be interested in enforcing the law at all.
Finally, there's the doctrinal point. If you'll remember back to our discussion of the FEC v. Wisconsin Right to Life case, I sided there with the conservative majority because I didn't like contextual tests as to whether an ad was intended to influence an election because judges had to make those decisions rapidly. Here, on the other hand, over an almost two year process, the Commission bent over backwards not to find that intent despite it being obvious to every political observer on the scene. No one was wondering whether Fred Thompson was going to run for President. He was running, and the Commission has provided a blueprint for future office-seekers to play footsie with the disclosure rules for as long as possible, thwarting the goals of transparency and accountability which Congress intended in enacting these laws.
Under federal law, Hudson has 60 days to decide whether to sue the Federal Election Commission in federal district court to seek a declaration that the Commission's failure to honor its staff's recommendation to act is contrary to law. If successful, such a suit would force the Commission to pursue this further.