Watchdogs see possible violation in Hickenlooper’s New Hampshire ‘joke’

Campaign finance watchdogs believe John Hickenlooper, Colorado’s outgoing governor and a possible 2020 presidential candidate, may have run afoul of Federal Election Commission regulations this week.

They’re also pretty sure there’s no chance the FEC is going to do anything about it.

Hickenlooper is a centrist, business-friendly two-term governor who lately has been acting a lot like someone who’s eyeing the Democratic presidential nomination in 2020. In September he set up what’s called a leadership PAC — a vehicle to fundraise for other candidates, but also to pay for travel expenses — and since then has zipped around the country, from New Hampshire to Florida, to Georgia and Iowa.

The PAC is called Giddy Up, and it’s managed by Brad Komar, who ran Hickenlooper’s 2014 gubernatorial re-election bid.

If and when Hickenlooper officially announces a candidacy for president, he would still be allowed to maintain and fundraise for Giddy Up.

But federal law requires that if a candidate has decided to run for president, he or she also must establish a campaign committee and file a statement of candidacy with the Federal Election Commission (FEC). As for the line between a possible candidate an an actual one, the feds define it as having received contributions or made expenditures in the aggregate in excess of $5,000 for the purpose of a campaign, and having made a public statement that identifies themselves as a candidate.

Hickenlooper appeared to do the latter on Wednesday when, during a chat with a few locals in a New Hampshire restaurant, he said, “I’m going to run for president.”

If that’s true — and he’s not merely considering a run, as he’s repeatedly claimed — it would suggest that he may be skirting the law by campaigning for president without actually declaring himself as such with the FEC.

As can be seen on a video clip shot by New Hampshire radio reporter Adam Sexton, the governor was standing among a few folks at a cafe and country store called Roots in tiny Hookset, N.H., when he told them, “I’m the governor of Colorado and I’m going to run for president.”

“Oh my gosh, really?” one woman responded. Others in the group chimed in to note how “exciting” Hickenlooper’s decision was. “Congratulations,” one man said.

Hickenlooper, apparently realizing his slip-up, leaned in and added, “To be honest, to be honest, I haven’t made the final decision. And if I say I’m absolutely doing it then there are all kinds of legal ramifications.”

“We’ll keep it quiet,” one man assured the governor.

At Roots Cafe/Robie’s Country Store in Hooksett Gov. John Hickenlooper @hickforco says he’s running for President, then kinda walks it back #FITN #nhpolitics #WMUR pic.twitter.com/GuQ7GmU5uN

— Adam Sexton (@AdamSextonWMUR) October 31, 2018

The Colorado Independent contacted Komar by phone Friday asking if the “I’m going to run for president” line was a harmless slip-up or a violation of the law.

“It’s neither,” he said. “It was a joke.”

“It was funny. Folks were laughing,” Komar added.

Thing is, Hickenlooper didn’t appear to be joking in Sexton’s video. And nobody seemed to be laughing at what he said. Rather, they seemed to take him at his word and earnestly congratulate him.

Komar said that before the exchange captured on video, someone had remarked to Hickenlooper that presidential candidates in the past have made visiting Roots a bit of a tradition.

“It was a response to that, and he was joking. It was a joke,” he said. “John Hickenlooper, over his years as mayor (of Denver) and governor has for a long time introduced humor and used humor in politics. It was a joke.”

Brendan Fischer, director of the federal reform program at the Campaign Legal Center, said, “If we had a functioning FEC, this is the type of thing that might trigger an investigation. But we don’t, and that means the bar for triggering an investigation is pretty high.”

The commission has a long history of letting slide much more egregious behavior by federal candidates. For example, Jeb Bush spent the first half of 2015 barnstorming the country and raising more than $100 million for a super PAC. He denied for months that he was doing so for the purpose of a presidential run. Then he ran for president and spent the money the super PAC had raised to support that campaign.

Bush has faced no penalty — nor wrist-slapping — from the FEC, though many complaints have been filed against him.

Many other federal candidates have followed Bush’s blueprint, including 2016 also-rans Scott Walker and Martin O’Malley.

But Hickenlooper, unlike them, does not have a super PAC. If he did, he could raise unlimited funds. He has a leadership PAC, and so he can’t take in more than $5,000 apiece from individual donors.

The PAC has spent about $58,000 to date, according to FEC records, and he’s dropped about half that money on support for candidates around the country, including Georgia’s Stacey Abrams, Florida’s Andrew Gillum and Colorado’s Jason Crow.

He’s spent the other half, roughly, for his own purposes: $18,000 to Denver political consultants, $3,500 to a D.C. law firm, $3,500 to Komar, and $600 to a Littleton web designer.

Said Fisher: “I wouldn’t be surprised if he’s using this leadership PAC now to quietly build his national profile and build relationships, and then in the future, form a super PAC, raise money for it and, after it’s up and running, then he declares his candidacy.”

Federal law says that as soon as a candidate begins “testing the waters” of a federal candidacy — yes, “testing the waters” is the legal term — they must pay for any and all “testing the waters” activities with money raised under federal contribution amount limits and source prohibitions. They must pay for this exploratory activity with funds raised under a $2,700 donation limit, with no corporate or union money — not under the $5,000 leadership leadership PAC limit or under the unlimited donation rules that apply to super PACs.

If Hickenlooper does officially run for president, he’ll have to register a candidate campaign committee and file his statement of candidacy. He’ll also be required to disclose any money he raised or spent to “test the waters.”

Paul S. Ryan, vice president for policy and litigation at the watchdog group Common Cause, said that although Hickenlooper likely will face no trouble from the FEC for his comment in New Hampshire, he’s still executing something of a “charade.”

The common claim from candidates with leadership PACs, Ryan said, is “‘This isn’t to help get me elected. It’s to help other people get elected.’

“But then they use these things to fly themselves repeatedly to Iowa and New Hampshire and South Carolina, laying the foundation for their presidential runs, while saying to the public — often disingenuously, in my view — that it’s not about them and that they’re out on the stump just helping other people get elected.”

Ryan said he finds it disheartening that people vying for the nation’s highest elected office feel so comfortable with gaming the laws, thanks to coaching from lawyers and blind-eye-turning from the FEC.

In Hickenlooper’s case, Ryan said, “the question, of course, is: If you’re just trying to help other people get elected, why are are you going to Iowa and New Hampshire?”

He added: “It’s a bunch of bullshit.”