How “testing the water” for candidacy works
Kansas Republican congressional candidate Amanda Adkins may have skirted federal election law by representing herself as a candidate before filing the appropriate paperwork, campaign finance watchdogs say.
Federal election rules include a “testing the waters” provision allowing prospective candidates to conduct a limited amount of preliminary activity. They are required to file with the Federal Election Commission if they make or authorize statements referring to themselves as a candidate and spend or raise at least $5,000.
Adkins, a former Kansas GOP chair, officially filed for Kansas’ 3rd congressional district on Aug. 30 and held a kickoff event this week at the Prairie Fire Museum in Overland Park. She will compete with fellow Republican Sara Hart Weir for the opportunity to challenge Democratic Rep. Sharice Davids in November 2020.
But emails obtained by The Star show that a full month before the FEC filing, political consultants referred to Adkins unequivocally as a candidate.
“We are very excited to announce that High Cotton will be working with Amanda Adkins, candidate in KS-03 (formerly Yoder’s seat),” wrote Kathryn Jones, a senior associate with High Cotton Consulting, in a July 30 email to a prospective donor.
High Cotton, a fundraising firm located in Washington, is one of a network of companies owned by Kansas City-based Axiom Strategies. Axiom, which advised former Republican Rep. Kevin Yoder last election, was founded by Jeff Roe, a long-time GOP strategist who ran Texas Sen. Ted Cruz’s 2016 presidential campaign.
The Jones email includes a bio for Adkins identical to one currently on her campaign website, which touts her background as an executive at Cerner and describes the candidate as a “businesswoman, mother and social entrepreneur.”
In another email on the same day, Jones wrote that Adkins “hasn’t announced but will be running in KS-03.” Both emails sought to set up September meetings with potential donors.
Adkins’ campaign said in a statement that the candidate did not decide to run for office until late August, despite the July emails.
“Amanda followed the rules set forth by the FEC when she tested the waters to make a decision about running for Congress. She decided late in August to run for the seat, and filed the appropriate paperwork,” said campaign spokeswoman Alana Roethle, a former state party secretary.
Jones said she should not have called Adkins a candidate without couching it, nor should she have said Adkins had officially hired High Cotton.
“I was told Amanda was coming to town in those dates in September and if we could help set up meetings that would be great,” Jones said.
The question of whether Adkins paid High Cotton or authorized the firm to speak on her behalf is key to establishing a potential FEC violation.
Jones said that none of her superiors at the firm had reviewed her emails to donors and that she had not been authorized by Adkins to call her as a candidate. She had been provided the bio after asking for one to send to potential donors, she said.
Jones said she had been approached by someone on Adkins’ team, but emphasized that no contract had been signed when the emails went out and that the firm did not receive payment.
“I absolutely overstepped my bounds unintentionally,” she said.
Multiple campaign finance watchdogs who reviewed the emails say they raise questions about whether Adkins skirted federal filing requirements.
“At a minimum, there is reason to believe Ms. Adkins was a candidate under federal law,” said Paul S. Ryan, vice president of policy and litigation at Common Cause, a watchdog group based in Washington.
“It’s rare to have an email that so definitively states that someone is a candidate for office.”
FEC rules require a person to file within 15 days of becoming a candidate. Ryan said the emails suggest Adkins had decided to run by office at least by July.
Whether she was required to file depends on whether she had raised or spent $5,000 in support of her candidacy, Ryan said. Adkins won’t be required to disclose her campaign spending details until October.
Brendan Fischer, director of federal reform at the Washington-based Campaign Legal Center, said that if Adkins hired a consulting firm she would have likely exceeded the $5,000 threshold.
“These emails indicate that Adkins hired the consulting firm High Cotton in July 2019, which likely cost more than $5,000. High Cotton, as Adkins’ agent, then sent at least two emails stating unequivocally that Adkins was a candidate for KS-03,” Fischer said in an email.
Fischer noted that “the language in the emails was not hedged in any way: the emails did not say that Adkins was considering a possible candidacy, they said she had decided to run but just had not announced.”
Fischer said the evidence suggests that Adkins should have filed with FEC earlier in the summer and that at a minimum the expenditures made before her official filing should be disclosed on her October campaign finance report.
Craig Holman, a government affairs lobbyist with Public Citizen, a group which advocates for stronger campaign finance rules, also said that the emails indicate that Adkins had moved beyond testing the waters for a campaign by July.
“These emails are a declaration of candidacy and do not conform to ‘testing the waters’ rules. The emails (1) label Amanda Adkins as a candidate for KS-03, and (2) consist of a fundraising solicitation by a hired consulting firm on behalf of the candidate,” Holman said in an email.
Lloyd Mayer, an associate professor at Notre Dame Law School, said the emails definitely raise questions but he also cautioned that they were sent by a consultant rather than Adkins herself.
“Why did the consultant think this was the case?” said Mayer, an expert in election law and campaign finance. “Most people are pretty careful to say I’m still exploring or I’m just looking.”
If Adkins had authorized her consultants to refer to her as a candidate, then she should have filed, Mayer said.
If there was a violation of filing guidelines, it is unlikely that there will be consequences.
The FEC has the power to impose fines on offenders, but Ryan said the commission has become lax in enforcing the standards in recent years and candidates are taking advantage of that.
“It’s not uncommon for candidates to abuse the law. It is uncommon unfortunately for the FEC to enforce the law,” he said.
Ryan authored a report for Common Cause in January that warned about how presidential candidates have been allowed to flout the law in recent elections.
The report pointed out how former Florida Gov. Jeb Bush was able to spend a year fundraising for a super PAC set up to support his eventual presidential bid and made multiple statements indicating his candidacy before officially filing in June of 2015.
Multiple complaints filed with the FEC and the Department of Justice have not resulted in any legal action against Bush.
Correction: Due to an editing error, an earlier version of this story misspelled Adkins’ last name in one paragraph.