POLITICS
01/16/2015 03:18 pm ET Updated Jan 16, 2015

Jeb Bush's Decision To 'Actively Explore' 2016 Run Allows Him To Avoid Super PAC Rules

WASHINGTON -- When former Florida Gov. Jeb Bush (R) waded into the 2016 presidential race in December, he did so with some awkward wording. He stated that he would "actively explore the possibility of running for President of the United States."

This hedged language on the part of a politician whose father and brother have each served in the White House could represent some hesitation on Bush's part as to whether he wants to run. But, it's also convenient phrasing to provide Bush with a legal loophole permitting him to avoid numerous campaign finance regulations and to raise money and coordinate with his very own personal super PAC -- at least until he officially declares he is done exploring possibilities and commits to a run.

Already, Bush is headed to California to attend multiple high-dollar fundraisers for his super PAC, according to CNN. A Bush spokeswoman would not comment on what the possible candidate is doing to help the super PAC.

The launch of Bush's super PAC -- Right to Rise Super PAC -- marks a new phase in the post-Citizens United world of campaign spending as the fifth anniversary of the Supreme Court decision approaches on Jan. 21.

Where many super PACs and nonprofit groups are deeply entwined with party leadership or particular candidates, no previous unlimited money group had been launched by candidates -- or potential candidates -- themselves as a means to fully evade the campaign finance limits placed on candidates soliciting large contributions and determining immediate or future strategy.

"Jeb Bush took it to a more blatant step," said Fred Wertheimer, president of the campaign finance watchdog group Democracy 21.

The distinction of a candidate's independence from the super PAC is important because it is a main reason used by Justice Anthony Kennedy in the Citizens United decision to argue that independent expenditures cannot lead to corruption or its appearance, the only rationale this court has allowed to uphold limits on campaign money.

"[B]y definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate," Kennedy declared.

Bush's Right to Rise Super PAC is on the extreme edge of evading coordination limits, but it isn't the only one pushing the limits.

The closest example is the Fund for Louisiana's Future, a super PAC supporting Sen. David Vitter's (R-La.) 2015 gubernatorial bid. Vitter has come under scrutiny for appearing at fundraisers for the group while also employing the same fundraising consultants as the super PAC, but he is subject to stricter coordination rules because of his status as an elected senator.

Vitter has taken the additional step of transferring $840,000 from his own Senate campaign account into the super PAC since Louisiana law does not allow him to move federal campaign funds into a state-level campaign committee.

Both Right to Rise and Fund for Louisiana's Future were started by the same election lawyer, Clark Hill's Charles Spies. In 2012, Spies spearheaded the first major presidential candidate super PAC, which was for Mitt Romney, and the lawyer is well-known for innovating within the maze of election laws.

Former Hewlett-Packard CEO Carly Fiorina is another prospective 2016 Republican presidential candidate operating a super PAC. Like Bush, her connection to the Unlocking Potential Project is unencumbered by regulation because of her status as a non-candidate and the fact that she isn't in elected office. Unlike Bush, her super PAC predates any statement she has made on the presidential race.

That's what makes Bush's Right to Rise so significant. It creates an additional institutionalized step to the already-drawn-out pre-campaign season.

The launch of this pre-presidential campaign super PAC provides an explicit way for large, and politically important, donors to make an early statement that will shape the election before it even officially begins. This is a goal for any candidate and will almost certainly be copied by other potential candidates who are not currently in office.

There is also another loophole opened by the pre-presidential super PAC. Current rules place limits on the revolving door between super PACs and campaigns. Any super PAC hiring an employee from a campaign must wait 120 days before advertising on that campaign's behalf. But it does not apply the other way around. This means Bush could use his super PAC to hire a large staff early that's funded with unlimited contributions, and then shift the employees all onto a campaign.

Right to Rise Super PAC is also different from what seemed to be the new norm created by the Ready for Hillary PAC. The pro-Hillary Clinton group was launched by supporters years before the election and joined by many longtime Clinton aides. But, unlike Right to Rise, it was created without the candidate's direct involvement.

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