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Defying the Odds

Defying the Odds
New book about the 2016 election.

Friday, March 4, 2011

Gingrich Tests the Waters

At The Los Angeles Times, Matea Gold and Tom Hamburger write:
Gingrich's announcement capped several days of confusing and contradictory leaks about his plans. Despite the name of his website, he stopped short of formally opening a federal exploratory committee because of the complications involved in unwinding his business interests, according to aides.

It's not clear exactly what this new phase entails. His bare-bones website -- which features a large photo of him and his wife, Callista, superimposed over an image of people enthusiastically waving American flags -- is soliciting donations and contact information for supporters. The money is being raised in accordance with federal election rules, which would apply if he formally got in the race.

"We'll be back," Gingrich told reporters. "I think you will have more than enough to write about in the near future."

Lawrence Noble, former counsel to the Federal Election Commission, said that the former speaker "appears to be using a provision in the FEC rules that allows someone to collect funds to decide if they want to become a candidate without registering with the FEC." The provision is not used often because there are restrictions on use of these "testing the-waters" accounts: They cannot grow too large; they cannot be used for advertising or other candidate activities, and if the tester becomes a candidate, all disclosure and record-keeping records apply from the very beginning of the effort.

Before deciding to campaign for federal office, an individual may first want to “test the waters”—that is, explore the feasibility of becoming a candidate. For example, the individual may want to travel around the country to determine if there is sufficient support for his or her candidacy. An individual who merely conducts selected testing the waters activities does not have to register or report as a candidate even if the individual raises or spends more than $5,000 on those activities (the dollar threshold that would normally trigger candidate registration). Nevertheless, the individual must comply with the contribution limits and prohibitions. 100.72(a) and 100.131(a); see also Advisory Opinion (AO) 1985-40.

An individual is no longer testing the waters when s/he:

• Makes or authorizes statements referring to him/herself as a candidate;
• Uses general public political advertising to publicize his/her intention to campaign;
• Raises more money than what is reasonably needed to test the waters, or amasses funds to be used after the candidacy is established;
• Conducts activities over a protracted period of time or shortly before the election; or
• Takes action to qualify for the ballot.

Once an individual is no longer testing the waters, funds that were raised or spent to test the waters apply to the $5,000 threshold for qualifying as a candidate. 100.72(a) and 100.131(a). Once that threshold is exceeded, the individual must register with the FEC, and begin to file reports including in the first report all activity that occurred prior to reaching the $5,000 threshold, including any testing the waters activities. To obtain a list of 2012 presidential candidates, visit the 2012 Presidential Statements of Candidacy page.