A Pool of Candidates Who Refuse to Swim : The 2016 Presidential Election and the Demise of Testing the Waters

In the 2016 presidential election, many candidates delayed announcing their candidacy until long after anyone who was paying attention realized that they were considering a run for office. In the past, these candidates may have been considered to be “testing the waters,” a special status proscribed by the Federal Election Campaign Act (“FECA”) that still requires full compliance with federal campaign finance laws but allows potential candidates to test the efficacy of a candidacy without having to publicly disclose any campaign contributions or expenditures unless they decide to run. The 2016 election, however, was special. Several eventual candidates took extreme measures to not only avoid candidacy, but also to avoid admitting they were even testing the waters of a candidacy, in order to engage in activities—like coordinating with their super PACs—that would otherwise be prohibited by FECA. This Note contends that a potential candidate cannot avoid being subject to FECA sim- ply by denying they are considering a run for office. First, it gives a brief overview the testing the waters provision and the current state of federal campaign finance law. Then, it examines the pre-candidacy activity of the 2016 presidential candidates. Finally, it proposes a straightforward rule to determine whether such pre-candidacy activity triggers testing the waters status