Candidates Flout Campaign Laws, Face No Consequences

Plus: The Freedom Caucus’s big miss on Ukraine.

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It’s the last week of regular business on Capitol Hill before Congress takes off for the month of August. (Technically, the House is taking six weeks off while the hard-working Senate is leaving for only five.) In this final stretch before our representatives and senators head out on the campaign trail, we’ll be examining two things: how GOP presidential candidates are pushing up against campaign laws and regulations, and the fate of Ukraine support in Congress.

Ron DeSantis marching in a parade with signs for Never Back Down PAC (Photo by Andrew Lichtenstein/Corbis via Getty Images)

It’s illegal for campaigns and super PACs to coordinate strategy, which is why there is a playbook of subtle maneuvers used to communicate such plans in the open. One of these maneuvers involves campaign memos that get “leaked”—that is, handed to a reporter for a national news outlet that will write up every little detail. Two recent examples include:

• An NBC News story titled “Confidential DeSantis campaign memo looks to reassure donors amid stumbles”

• An Axios story titled “Scoop: Nikki Haley campaign memo rips Trump ‘drama’”

The arrangement here is mutually beneficial: The media outlets running these “campaign memos” are willingly functioning as an alternative vehicle for a press release in part because they benefit from being able to say they have a scoop. The campaigns, meanwhile, get to telegraph strategic information to their allies without committing the sin of directly communicating with the people or groups they aren’t supposed to be coordinating with. And because they normally take laws mandating those sorts of boundaries fairly seriously, campaigns make lots of moves that follow the logic of the “leaked” memo-cum-press-release. For instance, they often post high-quality B-roll footage on their campaign’s YouTube page or elsewhere and make it available for free use by anyone who needs it for their own purposes. 

But DeSantis’s campaign has gone beyond the typical playbook when it comes to this kind of maneuvering. His closeness with the super PAC Never Back Down is unparalleled. Never Back Down is canvassing in early battleground states on DeSantis’s behalf, its people have conveniently appeared at events where DeSantis is, and DeSantis even autographed the super PAC’s official bus during its tour around battleground states. (For his part, the governor prefers to travel by private jet.) And when Never Back Down announced a new event last week, they miraculously landed a “special guest”—none other than Florida governor and Republican primary candidate Ron DeSantis. This flouting of campaign laws and regulations typifies the emerging dynamic of the 2024 cycle, and it also demonstrates just how ineffectual those rules are when candidates decide to ignore or fudge them.  

DeSantis certainly isn’t alone in this. Super PACs supporting Donald Trump, Tim Scott, Mike Pence, and more have all capitalized on the massive amounts of money raised to doorknock in battleground states and run ads pushing for their candidacy or attacking their primary opponents. 

One of the reasons this has become such a problem is that the Federal Election Commission is so often short-staffed. It needs a quorum of at least four out of six commissioners in order to do its work, and during most of the 2020 election season there weren’t four because of resignations. The commission has a quorum now, but of the six current commissioners, four are holdovers from past administrations—mostly Trump—whose terms have expired. (One, Ellen Weintraub, has been serving beyond the expiration of her term since mid-2007.) The two commissioners serving unexpired terms include one appointed by Joe Biden and one appointed by Trump. FEC commissioners require Senate confirmation, a fraught process in a chamber as closely divided as it is today. And with three Democrat-appointed commissioners and three Republican-appointed commissioners, the organization has a reputation for deadlock on issues of real importance in its portfolio, like the questionable activities of candidates hanging out a bit too much with their super PACs.

But the bigger problem is that the FEC has become a mostly toothless organization as a result of concerted efforts to weaken it. According to a blog post by former FEC employees posted by the Campaign Legal Center, which advocates for reforms and stricter campaign laws, “Congressional opponents of strong federal campaign finance laws were able to prioritize the recommendation and confirmation of Commissioners ideologically opposed to the FEC’s mission, exploiting the agency’s structure and rendering it ineffective.” If no one is going to stop DeSantis from being a roadie during the Never Back Down bus tour, why would he stop himself?

Gimmicks to get on the debate stage

Wanton disregard for honest campaign practices isn’t limited to higher-profile candidates in the 2024 primary. Bottom-tier presidential candidates are resorting to some interesting gimmicks, too—in their case, to secure the 40,000 individual donations required to make it onto the debate stage.

North Dakota Governor Doug Burgum is giving people $20 gift cards for chipping in as little as a dollar to his campaign. Perry Johnson, the entrepreneur and author, offered $10 gas cards in exchange for $1 donations. Soon after distributing the gas cards, Johnson announced a Big & Rich concert, free for his donors to attend, to celebrate meeting the individual donations threshold. 

These kinds of fundraising ploys can only be done by candidates who already have Scrooge McDuck levels of disposable personal wealth. But are they legal? Like much in the world of campaign finance, it’s not exactly clear. Gift card–based donation drives could result in what some would classify as straw donations—the donor is essentially being paid by the campaign to give to it—but a Mastercard gift card isn’t the same as cash, which could create enough legal wiggle room for the tactic to be a creative, above-board, extremely expensive new way to raise money. It probably depends on whom you ask.

But opinions are all we have right now because of the absence of meaningful enforcement. Crackdowns on either open coordination with super PACs or these questionable fundraising gimmicks would require either clear precedent or action by Congress or the FEC. The former is almost nonexistent and the likelihood of the latter is laughable.

The Freedom Caucus is out of their element with Ukraine opposition

The members of the House Freedom Caucus, which apparently exists to disrupt Congress by making outlandish demands, have drawn another line in the sand for the appropriations process. Their latest demands are Freedom Caucus Bingo Card material—things like spending less money, getting the “wokeness” out of the federal government, and so forth.

One area where Freedom Caucusers are wildly out of step with solid political consensus—and not just with the public, but within their own party—is the issue of supporting Ukraine. 

Most Democrats support continued funding for Ukraine’s effort to fight back against the Russian invasion, and most Republicans do, too. Every relevant committee chairman in the House is on the record supporting the Ukrainians.

Support for the cause goes far beyond Washington: Most Americans continue to have a positive view of U.S. support for Ukraine. In a June poll from Gallup, 62 percent of respondents support the idea of Ukraine reclaiming its territory even if doing so might prolong the conflict; just 36 percent favored ending the conflict as soon as possible, even if that would mean Russia keeping some of the invaded territories. This marked a slight decrease in support for Ukraine from the same poll conducted in August 2022 and January 2023, but it still signals considerable favorability for the status quo on the issue.

Senate Republicans and Democrats joined together last week to defeat conservatives’ amendments to the annual defense bill that would have restricted further Ukraine aid, but Freedom Caucusers remain opposed on the issue going forward. Among their priorities are placing a heavier financial burden on Europe, according to Rep. Chip Roy (R-Texas):

Regardless, these Republicans are not ruling out a government shutdown. Rep. Bob Good (R-Va.) summed up the Freedom Caucus’s view Tuesday morning, telling reporters:

We should not fear a government shutdown. Most of what we do up here is bad anyway. Most of what we do up here hurts the American people. When we do stuff to the American people while promising things for the American people.

Government funding is set to run out September 30, which, given the imminent recess, isn’t as far away as it seems. According to the House calendar, representatives have around fifteen legislative days remaining to avert the next shutdown.

Caption contest: A funnel cloud formed briefly over the U.S. Capitol this morning. I think it portends a government shutdown, but for Bulwark+ members, I’d love to see your best captions in the comments.