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

Sen. Elizabeth WarrenElizabeth Ann Warren2020 Democrats barnstorm the country for MLK weekend Kamala Harris picks Baltimore as headquarters for potential 2020 campaign: report Dem voters split on importance of women atop the ticket in 2020 MORE (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.

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“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.”

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But after a 2000 law authored by the late Sen. John McCainJohn Sidney McCainOvernight Defense: Trump unveils new missile defense plan | Dems express alarm | Shutdown hits Day 27 | Trump cancels Pelosi foreign trip | Senators offer bill to prevent NATO withdrawal Bipartisan senators reintroduce bill to prevent Trump from withdrawing from NATO Mark Kelly considering Senate bid as Arizona Dems circle McSally MORE (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 TrumpDonald John TrumpSunday shows preview: Shutdown negotiations continue after White House immigration proposal Rove warns Senate GOP: Don't put only focus on base Ann Coulter blasts Trump shutdown compromise: ‘We voted for Trump and got Jeb!’ MORE and Hillary ClintonHillary Diane Rodham ClintonConservatives pound BuzzFeed, media over Cohen report BuzzFeed story has more to say about media than the president Trump knocks BuzzFeed over Cohen report, points to Russia dossier MORE in 2016, Barack ObamaBarack Hussein ObamaAmericans need an economy that supports more than the 1 percent Pompeo’s retreat into chaos Barack Obama wishes Michelle a happy birthday: 'You’re one of a kind' MORE in 2008 and both John McCain in 2008 and Mitt RomneyWillard (Mitt) Mitt RomneyThe Senate should host the State of the Union Dem leaders avert censure vote against Steve King GOP reasserts NATO support after report on Trump’s wavering MORE 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.”