Is Doug Burgum Breaking Campaign Finance Laws to Try to Get on the Debate Stage?

Elections & Politics Policy Brief #87 | By: Ian Milden | July 25, 2023

Photo taken from: www.newsnationnow.com

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North Dakota Governor Doug Burgum (R-ND) recently launched a Presidential Campaign, which he is largely funding through his personal fortune. The RNC’s requirements to get on the debate stage require candidates to demonstrate a degree of grassroots support though donors and polling. Burgum is employing tactics that might not be legal in order to reach the donor threshold. This Brief will discuss those tactics, why they might be illegal, and what the government should do about it.

Analysis

In nearly every election cycle, longshot candidates launch campaigns for President. The campaign for the 2024 Republican Presidential nomination is no different. With the increasing number of candidates, the national parties have installed requirements in recent cycles in order for candidates to participate in debates. While the debates themselves are not always impactful, the difference between making the debate stage and being left off is still considered a critical measure of viability for longshot candidates.

In order for a candidate to receive an invitation to participate in next month’s debate, they must have 40,000 unique donors from at least 20 states. They must also reach 1% in three national or state polls that meet the RNC’s specifications, which are not in line with modern polling criteria. Candidates will also be required to pledge to support to the eventual nominee.

While longshots have to be creative in order to meet these criteria, Governor Doug Burgum’s strategy might be illegal. Burgum, a former CEO of Great Plains Software, is using his personal fortune to send $20 gift cards to the first 50,000 donors to his campaign. While candidates have given away merchandise in exchange for donations (such as shirts, yard signs, and other memorabilia), nobody has ever given away something with a clear monetary value.

Burgum’s strategy might be illegal because it effectively makes Burgum a straw donor. A straw donor is someone who gives money to a campaign through another person as a way of circumventing campaign contribution limits. This is illegal and the Justice Department has prosecuted people for straw donor schemes. It is not completely clear if this is illegal as there are a few differences from the traditional straw donor schemes that the Justice Department typically prosecutes.

The first difference is that the candidate who is effectively acting as the straw donor. Candidates are not limited in the amount of money that they can give their own campaign. Typical straw donor schemes are usually attempts to circumvent campaign contribution limits (both on dollar amounts and foreign nationals), and there is no limit on candidates giving themselves money. The second difference is that most straw donor schemes are secret attempts at circumventing campaign finance laws. Burgum is doing this transparently and not asking people for contributions that would exceed existing campaign finance limits.

Is Burgum’s Strategy Illegal?

To be honest, I don’t know. I don’t know if those differences matter enough in the eyes of the law. The Federal Elections Commission (FEC) is the agency that would usually determine whether Burgum’s strategy is legal or not. As I have written in a previous brief, the FEC is not a very functional regulator. This allows campaigns to try lots of different strategies and see if they work. If they happen to violate existing campaign finance rules, the FEC might fine the campaign in a few years for an amount that is not substantial for a billionaire like Burgum. This is not effective enforcement of campaign finance law.

There is a simple solution that might work better for the public. The Justice Department has a unit that prosecutes people for federal campaign finance offenses. Since the FEC is dysfunctional, it would be in the best interests of the public if the Justice Department could determine whether new strategies like the one Burgum is using with gift cards for donations are legal or not. If the Justice Department thinks that the strategy is illegal, it can inform Burgum’s campaign and tell it to stop rather than having to invest resources in an investigation and potential prosecution. If the strategy is legal, the Justice Department can put out a statement saying so. The Justice Department has taken this approach on other legal areas such as helping businesses comply with the Americans with Disabilities Act. While this approach would further harm the authority of the FEC, the FEC can only have its authority restored by a complete overhaul, which requires Congress to act on. The Justice Department should only take on this responsibility temporarily for time-sensitive matters until Congress overhauls the FEC.

Engagement Resources

• For more about the Federal Election Commission and how it works contact https://www.fec.gov