UPDATE: Kurtis Lee of the Denver paper breaks: Perry Haney will withdraw from the CD-6 race, leaving state Rep. Joe Miklosi as the Democratic contender and ending the primary.
Republicans may be kicking themselves over this legal challenge. We thought it was a smart strategic move to go after Haney by Republicans, because publicly attacking him helps the average voter to think that he is the stronger of the two Democrats running for the seat (the other being Rep. Joe Miklosi). Despite Miklosi’s faults, which we’ve documented here, he is absolutely a better candidate than the unknown and underfunded Haney.
But in the end, the GOP’s attacks probably made Haney’s quixotic run more trouble than it was worth.
The Colorado Republican Party filed a complaint with the Federal Election Commission last week, alleging that
CD-3 CD-6 Democratic self-funding candidate Perry Haney spent thousands of dollars on a run for Congress “somewhere in Colorado” before appropriately filing with the FEC. From the letter sent by Colorado GOP chairman Ryan Call:
Perry Haney for Congress is an authorized committee of Perry Haney, a candidate for the House of Representatives in the Colorado 6th Congressional District. Haney filed a Form 2 Statement of Candidacy with the FEC on October 27, 2011, and an amended Form 2 Statement of Candidacy on December 14, 2011. The Committee filed a Form 1 Statement of Organization with the FEC on October 27, 2011, listing the Committee’s name as Perry Haney for Congress Exploratory Committee. An amended Form 1 Statement of Organization was filed on December 14, 2011, changing the name to Perry Haney for Congress…
An individual becomes a candidate and triggers registration and reporting responsibilities under the Act when campaign activity exceeds $5,000 in either contributions or expenditures. 2 USC § 431(2). A candidate must file a Form 2 Statement of Candidacy within 15 days of becoming a candidate. 2 USC § 432(e)(1). Within 10 days after it has been designated by the candidate, the principal campaign committee must register by filing with the FEC. 2 USC § 433(a).
The regulations permit an individual who has not decided to run for office to raise funds to “test the waters” and explore the viability of becoming a candidate. 11 CFR § 100.72, 11 CFR § 100.131. An individual solely engaging in testing the waters activities does not have to register or report as a candidate, even if the individual raises or spends more than $5,000 on these activities. Testing the waters activities include conducting a poll, making telephone calls and traveling, but only if undertaken to determine whether an individual should become a candidate. 11 CFR § 100.72, 11 CFR § 100.131.
However, once an individual engages in campaign activity, if he or she has raised or spent more than $5,000, the individual must register as a candidate with the FEC.
In short, candidates are permitted some wiggle room between beginning the process of “testing the waters” to enter a congressional race and formally doing so. The problem for Haney, as Call and GOP attorneys allege, is that Haney’s promotional efforts as a potential CD-3 candidate over the summer go well beyond merely “testing the waters.” Call says that Haney was possibly in violation upon receipt of more than $5,000 in July of last year, and by the time a “Haney for Congress” video was uploaded to Youtube at the end of last August, very likely so.
We’re withholding judgment on this complaint pending further analysis, as some of the circumstances here are novel–we’re not sure, for example, how the fact that Haney was not yet running for a specific race (or, at the very least, looking at a different race than the one he ultimately chose) might affect the application of the law. We’re not election lawyers.
But we’ll say this: Haney’s lurking on the margins of two congressional races last year, and having filed the proper paperwork for the race he chose months after his “exploratory” period began, is a wide-open target for Republicans on both a messaging and legal harassment level. To whatever extent Haney becomes a serious candidate, he’s going to be hit with the charge of having shopped for a congressional race irrespective of experience or community ties. Haney had better develop good answers to these questions, or he’s going nowhere.