Before deciding to run for federal office, an individual may first want to “test the waters” — explore the feasibility of becoming a candidate.
An individual who spends money only to test the waters (but not to campaign for office) does not have to register as a candidate under the election law. (The threshold that triggers candidate status is discussed below.) Nevertheless, funds received and spent to test the waters are subject to the Act’s limits and prohibitions.2 Furthermore, financial records of testing-the-waters activities should be kept because, if the individual later becomes a candidate, the funds received and spent to test the waters will be considered contributions and expenditures. They will be reportable when the campaign files its first report. 11 CFR 100.72(a); 100.131(a); 101.3.
An individual may conduct a variety of testing-the-waters activities. Certain activities, however, indicate that an individual has decided to become a candidate and is no longer merely testing the waters. Under these circumstances, the testing-the-waters exemption would no longer apply. For example, the exemption does not apply if the individual:
- Raises funds in excess of amounts reasonably required for exploratory activity or amasses funds to be used after candidacy is established;
- Conducts activities over a protracted period of time or shortly before the election;
- Uses public political advertising to publicize his or her intention to campaign;
- Makes or authorizes statements that refer to him or her as a candidate; or
- Seeks ballot access. 11 CFR 100.72(b) and 100.131(b).
