May 27, 2015

Honorable Loretta E. Lynch
Attorney General
Department of Justice
950 Pennsylvania Avenue NW
Washington DC 20530
Dear Attorney General Lynch:
Democracy 21 and the Campaign Legal Center request that the Department of Justice
exercise its authority to investigate whether Republican presidential candidate and former
Governor Jeb Bush and an individual-candidate Super PAC operating on his behalf, the Right to
Rise Super PAC, are engaged in knowing and willful violations of the federal campaign finance
laws.
We further request that you exercise your statutory authority to appoint an independent
Special Counsel to conduct the investigation on behalf of the Department.
Jeb Bush is a candidate for President. The Right to Rise Super PAC is an entity that has
been established, and is being financed, maintained and controlled, by Bush and his agents. The
Super PAC is also acting on behalf of Bush. As such, it is prohibited from raising or spending
money that does not comply with Federal contribution limits and source prohibitions (i.e., “soft
money”). 52 U.S.C. § 30125(e)(1). Bush is likewise prohibited from raising and spending soft
money through such an entity. Id.
As we explain below, there are powerful grounds to believe that both Bush and the Right
to Rise Super PAC are violating these prohibitions and, in so doing, that they are engaged in a
scheme to allow unlimited contributions to be spent directly on behalf of the Bush campaign and
thereby violate the candidate contribution limits enacted to prevent corruption and the
appearance of corruption.
I.

The Department of Justice has authority to enforce the campaign finance laws and
should do so here.

Although the Federal Election Commission (FEC) has exclusive jurisdiction over civil
enforcement of the campaign finance laws, 52 U.S.C. § 30109(a), the Department of Justice has
its own separate responsibility to enforce the campaign finance laws against “knowing and
willful” violations. 52 U.S.C. § 30109(d); see generally FEDERAL PROSECUTION OF ELECTION
OFFENSES (7th ed. May 2007) (DOJ HANDBOOK).

 2
The DOJ HANDBOOK takes particular note of the fact that Congress increased criminal
penalties for campaign finance violations as part of the Bipartisan Campaign Reform Act of 2002
(BCRA). As the Handbook states, at pp. 198-99:
BCRA significantly enhanced the criminal penalties for knowing and willful
violations of the Federal Election Campaign Act. BCRA did so in response to
identified anti-social consequences, namely, corruption and the appearance of
corruption arising from FECA violations, and their adverse effect on the proper
functioning of American democracy….
In view of the enhanced criminal penalties for FECA crimes and the legislative
history supporting their enactment, it is the Justice Department’s position that all
knowing and willful FECA violations that exceed the applicable jurisdictional
floor specified in the Act’s criminal provision should be considered for federal
prosecution….
In the exercise of this authority, the Department recently undertook a prosecution of
illegal coordination that occurred in the 2012 election between a congressional campaign and a
Super PAC. As the Department announced on February 12, 2015, this was “the first criminal
prosecution in the United States based upon the coordination of campaign contributions between
political committees.” 1
In announcing this prosecution, Justice Department officials stated that the Department
“is fully committed to addressing the threat posed to the integrity of federal primary and general
elections by coordinated campaign contributions, and will aggressively pursue coordination
offenses at every appropriate opportunity.” Id.
Three considerations support an investigation by the Department into the activities at
issue here:
First, these activities concern potential violations of the limits and source prohibitions on
contributions to Federal candidates, provisions that the Department considers to be at the
“heartland” of the campaign finance laws. DOJ HANDBOOK at 151-152. At issue in this matter
is whether Bush and his agents established the Right to Rise Super PAC, and are financing and
maintaining it, as a vehicle operating on behalf of Bush to raise funds that do not comply with
the Federal contribution limits and source prohibitions, in violation of the law. The Handbook
says that “[i]n general, to warrant criminal prosecution, a FECA violation should involve one of
FECA’s substantive, or ‘heartland,’ provisions.” Id. at 151. And it lists the contribution limits at
issue here as the very first of the “heartland” provisions of the law. The Handbook recognizes
that “[l]arge political contributions lead to perceived and actual corruption of public officials.”
Id. at 152.
Second, the scale of the potential violation here is massive and certainly warrants the
attention of the Department. According to published reports, and as explained in greater detail
Office of Public Affairs, Dept. of Justice, “Campaign Manager Pleads Guilty to Coordinated
Campaign Contributions and False Statements,” (Feb. 12, 2015).
1

 3
below, Bush and the Right to Rise Super PAC are raising contributions from individuals in
amounts of as much as a million dollars each, or more. Reportedly, the Super PAC will have
raised an aggregate of $100 million in unlimited contributions by the end of May. Thus, a vast
amount of contributions well in excess of the Federal contribution limits are being raised and
spent by Bush and his agents through the Super PAC. The scale and scope of this scheme
effectively eviscerate the limits on contributions to candidates—limits that are at the “heartland”
of the law.
Third, the FEC is widely recognized today as a dysfunctional enforcement agency that is
repeatedly left paralyzed by a 3 to 3 split among its members, which results in deadlock and
agency inaction on enforcement matters. According to a report recently published in The New
York Times, even the chair of the agency agrees with this assessment:
The leader of the Federal Election Commission, the agency charged with
regulating the way political money is raised and spent, says she has largely given
up hope of reining in abuses in the 2016 presidential campaign, which could
generate a record $10 billion in spending.
“The likelihood of the laws being enforced is slim,” Ann M. Ravel, the
chairwoman, said in an interview. “I never want to give up, but I’m not under any
illusions. People think the F.E.C. is dysfunctional. It’s worse than
dysfunctional.”2
According to another published report, chairwoman Ravel said that the Commission’s
“recent history” on issues relating to coordination “portends slim hope that we will be able to
reach four votes to penalize any major transgressions.”3
In light of the effective collapse of the civil enforcement system as a result of the
paralysis of the FEC, it is essential for the Department to exercise its concurrent jurisdiction to
enforce the criminal provisions of the campaign finance laws. E.g., HANDBOOK at 177
(“Criminal prosecution under FECA can be pursued before civil and administrative remedies are
exhausted.”)
II.

The Department should appoint an independent Special Counsel to conduct this
investigation.

This matter involves potentially serious violations of the campaign finance laws by a
Republican Party presidential candidate and that candidate’s associated individual-candidate
Super PAC. Under these circumstances, we believe that the Department would have a conflict of
interest and the appearance of such in conducting this investigation.

E. Lichtblau, “F.E.C. Can’t Curb 2016 Election Abuse, Commission Chief Says,” The New York
Times (May 2, 2015).
2

F. Schouten, “Bush money machine in high gear even without official campaign,” USA Today
(May 13, 2015).
3

 4
Accordingly, both the public interest and Justice Department regulations require you to
invoke the procedures set forth in 28 C.F.R. § 600.1 et seq. to appoint a Special Counsel from
outside the Department to assume responsibility on behalf of the Department for handling this
matter.
Department regulations provide that the Attorney General “will appoint a Special
Counsel” when you determine that criminal investigation of a matter is “warranted” and:
(a) That investigation or prosecution of that person or matter by a United States
Attorney’s Office or litigating Division of the Department of Justice would
present a conflict of interest for the Department or other extraordinary
circumstances, and
(b) That under the circumstances, it would be in the public interest to appoint an
outside Special Counsel to assume responsibility for the matter.
Id. § 600.1 (emphasis added).
Both conditions are satisfied here. The investigation of a Republican candidate for
president by a Justice Department headed by an Attorney General appointed by a Democratic
president poses a conflict of interest and an appearance problem. Further, it would be in the
public interest to appoint a Special Counsel for this politically sensitive matter in order for the
investigation and its conclusions to have credibility with the public.
By taking this position, we do not impugn the integrity of any official in the Department.
Nor do we believe as a general matter that an Attorney General appointed by the President of one
political party is incapable of investigating candidates or political committees of the opposing
party. But this matter presents extraordinary circumstances because it involves a leading
Republican presidential candidate, because the timing of this activity is at the beginning of the
2016 presidential campaign, and because very large amounts of illegal contributions are
involved.
The regulations require that any Special Counsel appointed by you “shall be a lawyer
with a reputation for integrity and impartial decisionmaking, and with appropriate experience to
ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that
investigative and prosecutorial decisions will be supported by an informed understanding of the
criminal law and Department of Justice policies.” Id. § 600.3. These standards properly
articulate the type of person who should conduct this investigation in order for the investigation
to have the necessary credibility with the public to command widespread respect, and in order for
the investigation to reach a fair and just conclusion.
III.

There are strong grounds to believe that Jeb Bush and the Right to Rise Super PAC
have violated, and continue to violate, the campaign finance laws.

There are strong grounds to believe that Jeb Bush and the individual-candidate Super
PAC supporting his campaign, the Right to Rise Super PAC, have violated 52 U.S.C. § 30125(e),

 5
which prohibits a candidate, and any “entity directly or indirectly established, financed,
maintained or controlled by or acting on behalf of” a candidate, from raising funds that do not
comply with Federal contribution limits and source prohibitions (i.e., “soft money”).
The Right to Rise Super PAC is an entity that Bush, both directly and indirectly through
his agents, has “established” and that is “acting on his behalf” for the purpose of raising and
spending soft money to promote his presidential campaign. Similarly, Bush, both directly and
indirectly through his agents, has “financed,” “maintained” and “controlled” the Right to Rise
Super PAC, which is “acting on his behalf” for the purpose of promoting Bush’s presidential
campaign. Accordingly, there is reason to believe that Bush is violating section 30125(e) by
raising soft money for and through such an entity, and that the Right to Rise Super PAC is
violating section 30125(e) by raising and spending soft money on behalf of Bush.
A. Statement of Facts
1. Bush is a “candidate”
Although to date he has publicly claimed otherwise, Jeb Bush is a “candidate” for the
Republican nomination for President in the 2016 election. He has received contributions or
made expenditures aggregating $5,000 or more for purposes of seeking that nomination. 52
U.S.C. § 30101(2).
The fact of his candidacy is so apparent, and so overt, that Bush himself has found it hard
to maintain what is really the ongoing charade of his purported non-candidacy. According to one
published report:
Jeb Bush finally said what everybody knows – that he’s running for the 2016
Republican presidential nomination. Then he tried to take it back.
“I’m running for president in 2016, and the focus is going to be about how we, if I
run, how do you create high sustained economic growth,” Bush said in a video
posted by NBC News.
The apparent declaration comes as Bush has been dodging the question of
whether he’s a real candidate or is pursuing a strategy of running without saying
so, to allow him to coordinate with his Right to Rise Super PAC and the dark
money Right to Rise Policy Solutions.4
Bush’s proclamations that he is not a candidate are contradicted by the facts and by the
applicable law. In all pertinent respects, Bush has been engaging in activities as an active
candidate at least since January 2015. He has been traveling extensively to early primary states
since January 2015, and has been speaking and organizing in those states. For instance,
according to one published report:
P. Blumenthal, “Jeb Bush Messes Up Charade Of Not Running For President,” The Huffington
Post (May 13, 2015).
4

 6

For months, Bush has been privately wooing top New Hampshire Republicans in
a flurry of phone calls, emails, private meetings, and even hand-scribbled thankyou notes. He has met with top state legislators, local mayors, and, in particular,
dialed up a long list of Mitt Romney's old hands here.
Bush already has three strategists laying the groundwork in the state: Killion; Rob
Varsalone, a former top adviser to Republican Sen. Kelly Ayotte; and Nate Lamb,
a field director for Sen. Scott Brown's failed 2014 campaign. In addition, Ryan
Williams, a former Romney operative who has worked for the New Hampshire
Republican Party, is helping the Bush team through his firm, FP1 Strategies.5
Bush has also been heavily involved in fundraising for the Right to Rise Super PAC,
which is raising funds solely for the purpose of making expenditures to further Bush’s
presidential campaign. An individual becomes a “candidate” if the individual raises “funds in
excess of what could reasonably be expected to be used for exploratory activities or undertakes
activities designed to amass campaign funds that would be spent after he or she becomes a
candidate….” 11 C.F.R. § 100.72(b).
By these standards, Bush is a “candidate.” The fact that he has refrained from formally
announcing his candidacy is not determinative. If Bush is raising and spending money as a
candidate, he is a candidate under the law, whether or not he declares himself to be one.
Further grounds for concluding that Bush is a “candidate” pursuant to 52 U.S.C. §
30101(2) are set forth in a complaint filed with the FEC on March 31, 2015 by the Campaign
Legal Center and Democracy 21. That complaint is attached and incorporated herein by
reference.
Bush has not yet registered an authorized campaign committee. But in January 2015, he
established a PAC that “will serve as a holding area for staff and a policy shop” and that “will
also serve as the focal point of Bush’s political efforts, from commissioning polls and producing
ads to making hires for his digital team.”6 This PAC is named the Right to Rise PAC.7
An almost identically-named Super PAC—the Right to Rise Super PAC—has also been
registered with the Commission.8 That Super PAC is an individual-candidate Super PAC that
has been established and is operating solely to promote Bush’s presidential campaign.
S. Goldmacher, “Jeb Bush looks weak in Iowa. He can’t count on Florida. So he must win
here,” National Journal (May 5, 2015).
5

R. Costa, “Jeb Bush and his allies form leadership PAC and super PAC, both dubbed Right to
Rise,” The Washington Post, (Jan. 6, 2015).
6

7

FEC No. C00571380.

8

FEC No. C00571372.

 7

2.

Bush “established” and through his agents is directly or indirectly
“controlling” the Right to Rise Super PAC

According to one published report, “Jeb Bush is putting in motion an ambitious plan to
develop a super PAC that would be unprecedented in size and scope….”9 Another report states,
“The organization around Bush, a former Florida governor, has created a super PAC.…”10
According to another report, Bush’s advisers “are currently overseeing the operations of both
Bush political committees.”11
Other published reports indicate that Bush and his aides are actively involved in
recruiting high-level staff for the Right to Rise Super PAC. One report notes that “Bush’s team
is considering putting Mike Murphy, one of his top advisers, in charge of the super-PAC,
according to a Republican source familiar with the planning.”12 Another report describes
Murphy as “Bush’s longtime strategist who has been helping the former Florida governor staff
up his political operation and shape his economic opportunity message.”13 Another report states
that Murphy “has played a critical role in getting out Jeb Bush’s message and rolling out his allbut-certain presidential run,” and that Murphy and Bush have “a close relationship.”14 Another
report states that Murphy has “guided Bush through the rocky shallows of early-stage
presidential politics and helped manage Bush’s successful push to lock down most of the
Republican Party’s top donors for the 2016 race….”15 Another report states that Murphy “has
been deeply involved in Bush’s steps, courting donors, selecting staff and developing strategy.”16
According to another report, “While putting Murphy, a veteran of Republican presidential
campaigns, atop the committee would signal a crucial role for the super-PAC, delaying a

9

A. Isenstadt, “Jeb Bush’s $100M May,” Politico (May 8, 2015).

P. Overby, “5 Years After ‘Citizens United,’ Super PACs Continue to Grow,” National Public
Radio (Jan. 13, 2015).
10

P. Rucker and M. Gold, “Top Republican strategists in talks to join Jeb Bush’s super PAC,” The
Washington Post (March 17, 2015).
11

12

M. Bender, “Jeb Bush Promises 2016 Decision in Few Months,” Bloomberg (March 18, 2015).

P. Rucker and M. Gold, “Top Republican strategists in talks to join Jeb Bush’s super PAC,” The
Washington Post (March 17, 2015).
13

M. Haberman, “Bush Adviser May Skip Campaign to Work for ‘Super PAC,’” The New York
Times (Feb. 18, 2015).
14

J. Rutenberg, “The Next Era of Campaign-Finance Craziness Is Already Underway,” The New
York Times (April 21, 2015).
15

T. Beaumont, “Bush preparing to delegate many campaign tasks to super PAC,” Associated Press
(April 21, 2015).
16

 8
decision until summer also would give Bush more time to directly strategize with Murphy over
fundraising, messaging, and other planning.”17
One report states that pollster Neil Newhouse is also under consideration to work for the
Super PAC. According to this article, “Newhouse has a long association with Bush, serving as
his pollster during his Florida gubernatorial campaigns.”18
The Treasurer of the Right to Rise Super PAC is Charles Spies. Spies is also the lawyer
for the Right to Rise Super PAC.19 He is also a lawyer for the Right to Rise leadership PAC and
is described by one published report as a “top Bush strategist.”20 One published report states that
Spies “represents Bush and his Right to Rise Super PAC.”21 As one published report said,
“Bush’s leadership committee and super PAC share the same name, Right to Rise, and were set
up by the same GOP election law attorney, Charlie Spies.”22 According to one report, Spies in
February 2015 sent a cease-and-desist letter on behalf of Bush to a Bush supporter who had
begun airing a television ad in support of the Bush campaign. Another published report
describes Spies as “legal counsel in Bush’s political operation.”23
According to a published report, Mason J. Fink, who formerly served as a fundraiser for
Mitt Romney, “has signed on with Jeb Bush’s team and is expected to oversee national
fundraising for Bush’s super PAC….”24 According to the article, Fink is working with the Right
to Rise leadership PAC but “is expected to transition to the Right to Rise super PAC….” Id.
But, the report makes clear that Bush’s agents are involved in the process of staffing the Super
PAC. According to the report, “A Bush spokeswoman said no final staffing decisions have been
made at the super PAC.” Id.
17

M. Bender, “Jeb Bush Promises 2016 Decision in Few Months,” Bloomberg (March 18, 2015).

P. Rucker and M. Gold, “Top Republican strategists in talks to join Jeb Bush’s super PAC,” The
Washington Post (March 17, 2015).
18

P. Blumenthal, “Jeb Bush’s Decision to ‘Actively Explore’ 2016 Run Allows Him to Avoid
Super PAC Rules,” Huffington Post (Jan. 16, 2015).
19

E. O’Keefe and M. Gold, “Secret, unlimited donations could boost a Jeb Bush run,” The
Washington Post (March 31, 2015).
20

21

E. Flitter, “Jeb Bush lawyer tries to stop radio ads touting Bust campaign,” Reuters (March 18,

2015).
M. Gold, “Why super PACs have moved from sideshow to center stage for presidential
hopefuls,” The Washington Post (March 12, 2015).
22

T. Beaumont, “Bush preparing to delegate many campaign tasks to super PAC,” Associated Press
(April 21, 2015).
23

P. Rucker, “Bush lands Romney finance director to lead super PAC fundraising,” The
Washington Post (March 18, 2015).
24

 9
According to published reports, Bush is designing the strategy for the Super PAC and is
delaying his formal announcement as a candidate in order to maximize his fundraising activities
for the Super PAC. One report states, “Bush is even setting the timing of his official campaign
announcement…around a cross-country fundraising tour [for the Super PAC]. In the final weeks
leading up to the launch strategists have been devising a plan to allow both arms of the
campaign—the official one and the super PAC—to work seamlessly, even as they will be legally
barred from coordinating once he officially becomes a candidate.”25
According to published reports, Bush is planning to “delegat[e] many of the nuts-andbolts tasks of seeking the White House” to the Right to Rise Super PAC.26 According to this
report:
The concept, in development for months as the former Florida governor has raised
tens of millions of dollars for his Right to Rise super PAC, would endow that
organization not just with advertising on Bush’s behalf, but with many of the
duties typically conducted by a campaign….
[A]t its center is the idea of placing Right to Rise in charge of the brunt of the
biggest expense of electing Bush: television advertising and direct mail.
Right to Rise could also break into new areas for an individual-candidate super
PAC, such as data gathering, highly individualized online advertising and running
phone banks. Also on the table is tasking the super PAC with crucial endgame
strategies: the operation to get out the vote and efforts to maximize absentee and
early voting on Bush’s behalf.27
According to one report, “One adviser to the super PAC said a division of labor [with the
Bush campaign] had been established. While the official campaign arm would take the lead on
dictating messaging, the super PAC would take on the role of a follower and be an echo
chamber. ‘There’s an understanding that Miami is in charge,’ the adviser said.”28
As another report states, “One reason Bush aides are comfortable with the strategy is
because Mike Murphy, Bush’s longtime political confidant, would probably run the super PAC
once Bush enters the race.”29

25

A. Isenstadt, “Jeb Bush’s $100M May,” Politico (May 8, 2015).

T. Beaumont, “Bush preparing to delegate many campaign tasks to super PAC,” Associated Press
(April 21, 2015).
26

27

Id.

28

A. Isenstadt, “Jeb Bush’s $100M May,” Politico (May 8, 2015).

T. Beaumont, “Bush preparing to delegate many campaign tasks to super PAC,” Associated Press
(April 21, 2015).
29

 10
3.

Bush is “financing” the Right to Rise Super PAC

Bush has personally participated in events held by the Right to Rise Super PAC.
According to one published report, Bush was the “Special Guest” at the “Right to Rise National
Team Meeting” held in Miami at the end of April 2015.30 The invitation established four tiers of
supporters for the Super PAC, with the highest level, the national executive committee, reserved
for those who contributed or raised $500,000 by April 17. An invitation to the event stated, “We
hope you can join us for policy, political and finance briefings with the Governor and our team.”
Id.
According to a published report about the event, “Mr. Bush described his fund-raising
prowess over the weekend to hundreds of donors who attended a retreat in Miami, saying he had
raised more money than any Republican presidential operation in modern history. Mr. Bush is
raising unlimited super PAC dollars….”31 Another report stated, “Former Florida governor Jeb
Bush has raised tens of millions of dollars for his allied super PAC, collecting a historic amount,
he told donors Sunday night.”32
According to one report about the April fundraising event, “The weekend confab was
described by organizers as an opportunity to thank his biggest backers—and given them a chance
to meet with Bush and the people who will be running his super PAC.” 33
The April Right to Rise Super PAC “donor confab” was “led by Bush’s top three aides:
David Kochel and Sally Bradshaw, who are expected to lead his campaign, and Mike Murphy,
who is poised to lead the Super PAC. The briefings included discussions of economic and
foreign policy and details on how the super PAC, Right to Rise, plans to reach out to ‘nontraditional GOP communities.”34
Bush has been involved in directing contributions to the Right to Rise Super PAC.
According to one published report, “Bush has consistently appeared at events for his super-PAC,
which can raise unlimited amounts of money.”35 Another report states that Bush “is headlining
$100,000-a-head fundraisers for a super PAC already ballooning with tens of millions of dollars
30

N. Confessore, “Lines are Blurred in Donor Event for Jeb Bush ‘Super PAC,’” The New York

Times.
M. Haberman, “Hilary Clinton to Jump Start Fund-raising Efforts,” The New York Times (April
29, 2015).
31

M. Gold and E. O’Keefe, “Never before have so many people with so much money run for
president,” The Washington Post (April 27, 2015).
32

33

A. Isenstadt, “Jeb Bush’s $100M May,” Politico (May 8, 2015).

M. Gold and E. O’Keefe, “Never before have so many people with so much money run for
president,” The Washington Post (April 27, 2015).
34

35

M. Bender, “Jeb Bush Promises 2016 Decision in Few Months,” Bloomberg (March 18, 2015).

 11
in donations.”36 Another report states that “Bush has been aggressively recruiting donors for the
group, which legally can raise unlimited funds and is poised to have hundreds of millions of
dollars to spend on television advertisements and other activities.”37 Another report stated, “The
former Florida governor has held multiple high-donor fundraisers on Wall Street and across the
country, sometimes with minimum contributions of $100,000 or even more.”38 In February Bush
drew headlines for an “eye-popping $100,000 per-ticket Park Avenue event hosted by private
equity mogul Henry Kravis and his wife. The price of admission to the event, which [raised]
funds for Bush’s ‘Right to Rise’ super PAC, surprised even Wall Street veterans used to highdollar fundraisers.”39 According to other reports, Bush has engaged in “a nonstop fundraising
tour raking in millions” for the Right to Rise Super PAC.40 Bush headlined a $25,000-percouple fundraising event on March 30 in Newport Beach, CA and a March 31 fundraising event
in Bel Air, CA, with a requested minimum donation of $25,000 per couple, and with those
attendees who wished to attend the reception and dinner being asked to contribute $100,000 per
couple to Right to Rise Super PAC.41
According to published reports, advisers working for Bush are involved in the
fundraising plans and activities of the Super PAC. In response to a report that the Super PAC
“could raise as much as $100 million in the first quarter of the year—and maybe $500 million by
June, if not more,” the report said that “Bush advisers are scrambling to drive these lofty
expectations way down.”42 The report quoted “Bush spokesman Tim Miller” as stating that the
“PAC’s goals are far more modest.” Id.
By March 2015, as Bush was “headlining a series of high-dollar events” for the Right to
Rise Super PAC, his team sent out an “unusual request … to wealthy donors writing large checks
to support former Florida governor Jeb Bush: Please don’t give more than $1 million right
away.” Bush advisers were reportedly concerned that “accepting massive sums from a handful of
uber-rich supporters could fuel a perception that the former governor is in their debt.”43 But
M. Gold, “Why super PACs have moved from sideshow to center stage for presidential
hopefuls,” The Washington Post (March 12, 2015).
36

P. Rucker and M. Gold, “Top Republican strategists in talks to join Jeb Bush’s super PAC,” The
Washington Post (March 17, 2015).
37

38

B. White, “Jeb Bush’s $100 million problem,” Politico March 16, 2015).

39

B. White, “Jeb Bush’s eye-popping event: $100K per ticket,” Politico, (Feb. 10, 2015).

M. Gold, “Jeb Bush super PAC juggernaut heads to California next week,” The Washington Post
(March 23, 2015).
40

41

Id.

42

B. White, “Jeb Bush’s $100 million problem,” Politico March 16, 2015).

M. Gold, “Awash in cash, Bush asks donors not to give more than $1 million – for now,” The
Washington Post (March 4, 2015).
43

 12
according to another report published in early May 2015, “Bush has been rushing to fill the Right
to Rise bank account…. Over the coming days, … Bush will try to accelerate the cash flow…..
Hoping to avoid the public perception that he’d been indebted to a few extremely wealthy
benefactors, the former governor initially imposed a $1 million cap on donations to the super
PAC. But now, the source said, that restriction is being lifted. The move is partly out of concern
that, with other Republican candidates raising large sums, more cash could be needed.”44
Bush’s family members are also raising money for the Right to Rise Super PAC.
According to published reports, Bush’s son, Texas Land Commissioner George P. Bush, was
scheduled to appear at a Super PAC fundraising event in Austin, Texas.45 According to another
report, “Former president George W. Bush and Laura Bush will headline a fundraiser for the
Right to Rise PAC, the super PAC launched by Jeb Bush in anticipation of his own presidential
bid.”46 And Bush’s mother, Barbara Bush, has also raised money for the Super PAC.47
B. Applicable Law
A cornerstone of the federal campaign finance laws is the limit on contributions to federal
candidates that was enacted to prevent corruption and the appearance of corruption. Since
Buckley v. Valeo, 424 U.S. 1, 26-27 (1976), the Supreme Court has recognized that without
contribution limits, “the integrity of our representative democracy is undermined.” The Court
also stated in Buckley that “Congress was surely entitled to conclude” that “contribution ceilings
were a necessary legislative concomitant to deal with the reality or appearance of corruption
inherent in a system permitting unlimited financial contributions.” Id. at 28 (emphasis added).
Individual-candidate Super PACs, such as the Right to Rise Super PAC, provide a means
for donors to evade and circumvent the candidate contributions limits. The Federal Election
Campaign Act limits to $2,700 the size of a contribution that a presidential candidate or his
authorized campaign committee can accept from an individual donor. 52 U.S.C § 30116(a)(1).
FECA also prohibits a corporation or labor union from making a contribution to a presidential
candidate. 52 U.S.C. § 30118(a). Individual-candidate Super PACs, which are devoted to
promoting the election of a single candidate, serve as ready vehicles for eviscerating these
candidate contribution limits that were enacted to prevent corruption.
The campaign finance laws contain provisions to prevent the circumvention of the basic
$2,700 candidate contribution limits. By providing a vehicle for wealthy donors to make
44

A. Isenstadt, “Jeb Bush’s $100M May,” Politico (May 8, 2015).

45

P. Svitek, “George P. Bush to help raise cash for dad’s super PAC,” The Texas Tribune (March 9,

2015).
M. Gold and E. O’Keefe, “George W. and Laura Bush to appear at fundraiser for Jeb Bush,” The
Washington Post (March 23, 2015).
46

E. O’Keefe, “In fundraising E-mail, Barbara Bush says Jeb Bush ‘Is Our Best Chance of Taking
Back the White House in 2016,’” The Washington Post (March 18, 2015).
47

 13
contributions on behalf of a specific candidate that directly benefits that candidate, but where
such contributions do not comply with the Federal contribution limits, individual-candidate
Super PACs such as the Right to Rise Super PAC operate in violation of the contribution limits
and the anti-circumvention protections of the law.
Section 30125(e)(1) states:
A candidate, individual holding Federal office, agent of a candidate or individual
holding Federal office, or an entity directly or indirectly established, financed,
maintained or controlled by or acting on behalf of 1 or more candidates or
individuals holding Federal office, shall not —
(A) solicit, receive, direct, transfer, or spend funds in connection with an election
for Federal office, including funds for any Federal election activity, unless the
funds are subject to the limitations, prohibitions, and reporting requirements of
this Act;…
52 U.S.C. § 30125(e)(1) (emphasis added).
This prohibition is broadly drafted. It applies to any candidate for Federal office or
federal officeholder or to any “agent” of a candidate or of an officeholder, as well as to any
“entity directly or indirectly established, financed, maintained or controlled by or acting on
behalf of” a candidate or officeholder. Id. Such candidates, officeholders, agents and entities
cannot “solicit, receive, direct, transfer or spend funds in connection with an election for Federal
office” unless those funds comply with the contribution limits and prohibitions, and reporting
requirements, of Federal law. Id.
Thus, section 30125(e) makes clear that candidates cannot do indirectly what they cannot
do directly. Candidates and their campaign committee are prohibited from directly raising or
spending soft money. And candidates and their campaign committees are also prohibited from
indirectly raising and spending such soft money funds—by doing so through a related entity
“acting on behalf of” the candidate or through an entity that they have “established” or
“financed” or “maintain” or “control.” And any such related entity is covered by the same soft
money prohibition as the candidate, whether such entity was “directly” established by a
candidate or campaign committee, or “indirectly” established by them for their benefit.
The FEC has promulgated regulations to implement this provision. 11 C.F.R. §§ 300.60,
300.61. The regulations apply to “Federal candidates” and to “Entities that are directly or
indirectly established, financed, maintained or controlled by, or acting on behalf of, one or more
Federal candidates or individuals holding Federal office.” Id. § 300.60(a), (d). Such candidates
and entities shall not “solicit, receive, direct, transfer, spend or disburse funds in connection with
an election for Federal office” unless such funds “consist of Federal funds that are subject to the
limitations, prohibitions and reporting requirements of the Act.” Id. § 300.61.
The statute and regulations make clear that the prohibition on a Federal candidate raising
or spending soft money fully applies also to any entity “directly or indirectly established,

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financed, maintained or controlled” by a Federal candidate as well as to any person or entity
“acting on behalf of” a Federal candidate.
The FEC has also promulgated a regulation to define the phrase “Directly or indirectly
establish, finance, maintain, or control.” 11 C.F.R. § 300.2(c). That phrase applies, inter alia, to
entities established, financed, maintained or controlled, whether directly or indirectly, by Federal
candidates or their agents (referred to in the regulation as “sponsors”). Id. § 300.2(c)(1). The
regulation lists a series of ten factors to determine the application of the standard, but it makes
clear that these factors are not exclusive, i.e., that the relevant determination is based on factors
that “include, but are not limited to” the ten factors listed in the regulation. Id. § 300.2(c)(2).
Further, the regulation makes clear that the factors “must be examined in the context of the
overall relationship between the sponsor and the entity” to determine if the sponsor “directly or
indirectly established, finances, maintains, or controls the entity.” Id. Thus, in determining
whether an entity is directly or indirectly established, financed, maintained or controlled by a
sponsor, the Commission applies a functional facts-and-circumstances test that reviews the
“overall relationship” between the sponsor and the entity.
The factors listed in the regulation include whether the “sponsor” (i.e., the Federal
candidate) and the entity have shared employees or officers, whether the “sponsor” directly or
through an agent “provides” funds in a significant amount to the entity, or “causes or arranges
for funds” in a significant amount to be provided to the entity, and whether the sponsor “directly
or through its agent” had an “active or significant” role in “the formation of the entity.” Id. §
300.2(c)(2)(vi)-(ix).
C. Violations of Law
Section 30125(e) prohibits any entity that is “directly or indirectly established, financed,
maintained or controlled by or acting on behalf of” a Federal candidate from soliciting,
receiving, directing or spending contributions that do not comply with the Federal contribution
limits and source prohibitions.
Jeb Bush is a “candidate” within the meaning of FECA, notwithstanding the fact that he
has not yet made a formal announcement of his candidacy and notwithstanding his claims that he
is not a candidate.
The Right to Rise Super PAC has been “directly or indirectly” “established” by Jeb Bush.
The Super PAC has been established by agents and associates of Jeb Bush and is organized for
the sole purpose of promoting Bush’s presidential campaign.
The Right to Rise Super PAC has been “directly or indirectly” “financed” by Jeb Bush.
Bush has attended multiple fundraisers for the Super PAC and has solicited funds for the Super
PAC.
The Right to Rise Super PAC has been “directly or indirectly” “maintained or controlled”
by Jeb Bush. Bush and his agents are directly involved in making decisions about both the
staffing of the Super PAC and the allocation of tasks to the Super PAC and as between the Super

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PAC and the official Bush campaign. Bush’s close associates, former staff and political
operatives are working with or for the Super PAC, and are in discussions with the Super PAC
and with Bush about assuming formal leadership roles for the Super PAC.
The applicable regulation makes clear that the determination of whether an individualcandidate Super PAC is “directly or indirectly” established, financed, maintained, or controlled
by the candidate it is supporting must be determined “in the context of the overall relationship
between” the candidate and the Super PAC. 11 C.F.R. § 300.2(c)(2). The “overall context” of
the relationship between the Right to Rise Super PAC and Jeb Bush shows that Bush and his
agents established the Super PAC and have been actively involved in the planning, staffing,
financing and operations of the Super PAC, and thus that the Super PAC is “directly or
indirectly established, financed, maintained or controlled” by Bush.
The Right to Rise Super PAC is also “directly or indirectly” “acting on behalf of” Jeb
Bush. The sole purpose of the Super PAC is to promote the election of Bush as president. The
Super PAC is being operated as an arm of the Bush political operation and is acting in concert
with Bush and his agents for the common objective of promoting Bush’s candidacy.
Accordingly, the Right to Rise Super PAC is an entity “directly or indirectly established,
financed, maintained or controlled or acting on behalf of” Jeb Bush and his campaign within the
meaning of section 30125(e). Thus, the Right to Rise Super PAC has violated section 30125(e)
by soliciting, receiving and spending contributions that do not comply with the Federal
contribution limits and source prohibitions. Similarly, Jeb Bush has violated section 30125(e) by
soliciting, receiving, directing and spending contributions through the Right to Rise Super PAC
that do not comply with the Federal contribution limits and source prohibitions.
Conclusion
Under the circumstances involved in this case, we request you to exercise your authority
under section 600.1 of the Department’s regulations to appoint a Special Counsel to undertake an
investigation of whether Bush and the Right to Rise Super PAC have violated 52 U.S.C. §
30125(e)(1) by accepting contributions or making expenditures with funds raised in excess of the
applicable limits set forth in 52 U.S.C. §§ 30116(a)(1) and 11 C.F.R. §§ 110.3, and if so, to take
appropriate prosecutorial and remedial measures.
Respectfully submitted,

J. Gerald Hebert
/S/ J. Gerald Hebert
Executive Director
Campaign Legal Center

Fred Wertheimer
/S/ Fred Wertheimer
President
Democracy 21

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Copy to:
Sally Quillian Yates, Acting Deputy Attorney General
Leslie R. Caldwell, Assistant Attorney General, Criminal Division
Raymond Hulser, Acting Chief, Public Integrity Section
Richard C. Pilger, Director, Election Crimes Branch