Why forming an exploratory committee means you’re already running for president

Sen. Elizabeth Warren (D-Mass.) became the first high-profile candidate to say she would explore a run for the Democratic nomination for president on Monday, kicking off what is likely to be a crowded contest among the most diverse group of contenders in political history.

But in the eyes of the federal agency that oversees campaign spending, Warren isn’t exploring at all — she is, legally speaking, already a candidate.

In modern politics, there is no such thing as an exploratory committee. The paperwork Warren filed with the Federal Election Commission (FEC) shows she has created an actual campaign committee.

{mosads}“Tis the season for these bizarre FEC distinctions on campaign committees,” said Michael Toner, a former chairman of the FEC under former President George W. Bush. “You can call a committee an exploratory committee, but legally it is a campaign committee.”

Warren’s filings with the FEC include a formal statement of candidacy, in which she declares herself a candidate for president. 

“Though this is an exploratory committee, for the sake of transparency and full compliance with the law, Senator Warren and her principal campaign committee will abide by all requirements for principal campaign committees and candidates under the Federal Election Campaign Act of 1971, as amended,” Warren’s campaign wrote on her Statement of Candidacy.

Legally speaking, her principle campaign committee, the Elizabeth Warren Presidential Exploratory Committee Inc., is an actual campaign committee that will allow her to raise and spend money under federal election rules, and that will require her to disclose that fundraising to the FEC.

In past election cycles, candidates filed what were known as testing-the-waters committees, organizations that could raise money as a candidate made up his or her mind about whether to run. 

“The FEC allows candidates to test the waters, which is sometimes referred to as exploratory activity, without registering or disclosing those activities,” said Robert Kelner, a campaign finance expert who has served as an attorney for some of the top Republicans in Washington. “The difference between an exploratory committee and a real campaign committee has become a bit of a legal fiction that’s really driven by politics.”

In order to avoid having to file reports with the FEC, those candidates had to steer clear of what campaign lawyers call the “magic words,” statements that implicitly or explicitly lay out that they had made the decision to run.

“You can’t say you’re a candidate, you can’t say here’s why I’m running for president,” Toner said. “A lot of these potential candidates are very artful in what they say. They never state or imply that they’ve made a decision.”

{mossecondads}But after a 2000 law authored by the late Sen. John McCain (R-Ariz.), the appeal of a testing-the-waters campaign was greatly diminished. That law required those committees to disclose their donations and their donors to the Internal Revenue Service, robbing them of any secrecy they might enjoy.

In recent years, only a handful of candidates have bothered with the testing-the-waters phase. 

The late Sen. Fred Thompson (R-Tenn.) set up one of those committees ahead of his 2008 run for president, so that he could keep a contract to appear on television, something he would have had to dissolve had he declared himself an actual candidate. Former House Speaker Newt Gingrich (R) formed his own testing-the-waters committee ahead of his 2012 bid.

But most candidates — including President Trump and Hillary Clinton in 2016, Barack Obama in 2008 and both John McCain in 2008 and Mitt Romney in 2012 — skipped the testing-the-waters phase and went straight to filing a formal campaign committee.

Toner said the breadth and depth of the Democratic field this year means most candidates will follow that route, rather than testing any waters. 

“This race is starting so soon that I think most of these top tier candidates will be in by January,” he said. “There’s going to be such urgency, I think, to get in and start raising money.”

But calling a campaign committee an exploratory committee, even if the FEC sees no legal distinction between the two, brings a separate advantage, one that is more a function of the modern media landscape than anything else.

Warren earned media mentions in every major newspaper and television news program in the country in announcing her committee; she will likely earn another wave of press when she declares she is running.

“Candidates like to have two bites at the apple,” Kelner said. “Later on they do a big announcement that they’ve decided to run and they get another round of publicity about that.”