WASHINGTON – Even though he won’t be on the ballot, Sen. Evan Bayh, D-Ind., can still play a dominant role in this year’s Senate race by using the $12.2 million in his campaign fund.
If he wants to.
Bayh has wide legal flexibility in directing the money for political activities. He just can’t spend it on himself.
It would be legal for Bayh to spend millions of dollars on TV ads, mailings and other contacts with Indiana voters – as long as he doesn’t work hand-in-glove with the Democratic Senate nominee.
But that would be a mistake for Bayh, Democratic strategist Tad Devine said.
“After hearing what Evan said about denouncing the politics of Washington, I don’t know whether he’d want to engage in what most people consider to be real insider politics, which is these independent expenditures,” Devine said.
When Bayh unexpectedly announced Monday that he won’t run for a third term, he described frustration with “too much brain-dead partisanship.”
Bayh, who has several options for disposing of the money left in his campaign account, has given little clue about his intentions except that he’ll help Indiana’s Democratic Senate nominee.
By mid-April he must return any money given specifically for the November election – about $575,000 of the $12.9 million he had on hand as of Jan. 1. He must also return about $215,000 the Indiana Democratic Party has already spent on his behalf.
That leaves $12.2 million.
“I haven’t given that much thought,” Bayh said of the money at his retirement announcement. “Obviously I want to help some other people, but that’s a decision for another day.”
In a conference call with state party officials last week, Bayh said he would help the Democratic nominee “in a big way financially,” Indiana Democratic Party Chairman Dan Parker said.
But Bayh did not identify an amount.
Bayh “has a lot of money to play with,” said Larry Noble, a campaign finance attorney and former chief lawyer for the Federal Election Commission.
In fact, only three other senators have more money than Bayh in their campaign accounts.
“He can use that money for political activity and to help the party. I am sure he is going to be under pressure to do so. I suspect the party is thinking that what was a relatively safe seat is no longer safe. They may be asking for help,” Noble said.
Devine said that making a multimillion-dollar contribution to the Democratic Senatorial Campaign Committee “is a great way to relieve any ill will that exists because he made a late decision to get out of the race.”
Democrats were dumbfounded – and privately seething – by Bayh’s decision, which came too late for any other Democratic candidates to collect the 4,500 signatures they’d need to be on the May 4 primary ballot. The leadership of the Indiana Democratic Party will choose a candidate.
Democrats and Republicans alike have said that Bayh’s departure makes the prospect of the Senate seat staying in Democratic hands much less likely. National political analysts said if a Republican wins Indiana’s Senate seat, it’s possible the majority control of the Senate will flip to the GOP.
A spokeswoman for the Democratic Senatorial Campaign Committee was mum on whether its chairman has appealed to Bayh for some of the money.
Devine said the most likely scenario for Bayh is to do what many members of Congress have done when they left office: keep most of the money in their campaign account, creating a nest egg for a possible future candidacy.
It’s not what Republican Dan Coats did when he left the Senate in 1998. Coats had nearly $568,000 in his campaign account and distributed some of it to charities and other Republican candidates.
He also sent a $400,000 check to the Republican National Committee.
Had Coats left that money untouched in his campaign account, he would have been able to use it for his Senate candidacy this year.
Leaving the bulk of the money untouched, Devine said, would give Bayh options, and he predicted that’s what Bayh will do.
“He’s a young man,” Devine said of Bayh, who is 54. “He may want to do things politically in the future, whether it’s run for governor or pursue another office or be involved in politics in some meaningful way where resources like that could make an enormous difference. Preserving it is a great option.”
But even if he chooses that option, Devine said, Bayh could make substantial donations to Indiana congressional and state legislative candidates while still keeping at least $10 million in his campaign kitty.
“One of the real downsides to Evan Bayh not being at the top of the ballot this year is the impact it’s likely to have on other races in Indiana. I know it’s a very close legislative race there, for example. Not having his vote-drawing ability at the top of the ticket could affect these down-ballot races.
“So he may decide he wants to be involved in helping other Indiana Democrats win election. That’s his political base. It would be a smart thing to nurture it,” he said.
Parker said he hopes Bayh will make a substantial – “as much as possible” – contribution to the state party. The organization can spend about $900,000 directly on the nominee’s campaign and can pay for other operations – such as get-out-the-vote efforts – that help all Democratic candidates.
“We are the one organization in the state that can help the eventual nominee,” Parker said.
A few rules govern how Bayh can use the $12.2 million that will be in the Evan Bayh Committee campaign account after he reimburses donations and the state party.
He can’t, for instance, transfer the money to the Democratic Senate nominee. In fact, Bayh’s campaign is limited to a $2,000 donation to the candidate.
Beyond that limitation, “the only thing he can’t use it for,” said Paul Ryan, a lawyer for the non-profit Campaign Legal Center, “is for personal use.”
Bayh has similar options with a political action committee he controls, although the PAC may donate up to $5,000 per election to congressional candidates.
The All America PAC has one other significant difference from the Evan Bayh Committee.
At the end of his Senate term early next year, Bayh could convert all of the $439,500 in the All America PAC to personal use.
But he cannot transfer the Evan Bayh Committee’s millions to the All America PAC, according to a Federal Election Commission spokeswoman.
