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Some raise ethical questions as DeSantis campaigns while governing

DeSantis, of course, isn’t the first candidate to launch a presidential campaign while holding elected office.
 
Republican presidential candidate Florida Gov. Ron DeSantis speaks at an annual Basque Fry at the Corley Ranch in Gardnerville, Nev., Saturday, June 17, 2023.
Republican presidential candidate Florida Gov. Ron DeSantis speaks at an annual Basque Fry at the Corley Ranch in Gardnerville, Nev., Saturday, June 17, 2023. [ ANDY BARRON | AP ]
Published June 22, 2023|Updated June 22, 2023

TALLAHASSEE — When Republican Gov. Ron DeSantis traveled to Fort Pierce to sign the state budget, the traditionally policy-heavy event quickly turned political when he was asked about recent criticism from his longtime political foe, California Gov. Gavin Newsom.

“What I would tell him is, you know what, stop pussy-footing around,” DeSantis, a GOP presidential candidate, said with a smirk. “Are you going to throw your hat in the ring and challenge Joe [Biden] or are you just going to sit on the sidelines and chirp?”

Within the hour, DeSantis’ campaign was selling “Chirping from the Sidelines” T-shirts for $34. The merchandise — featuring the governor’s quote alongside a “RD24″ campaign logo — was up on the campaign’s online store before his office released details of the $116.5 billion state budget to the public.

The sequence of events is a snapshot of a conflict politicians have long faced as they hold one office and run for reelection or higher office. DeSantis has even suggested Newsom, who has been reelected and is not a current candidate, was using his public office for political gain.

But DeSantis’ pursuit of a presidential bid has Republicans and Democrats questioning whether he values the traditional separation between his role as the governor for all of Florida, and his role as the candidate seeking the GOP nomination for president.

Those questions have led to a state ethics complaint and a state elections complaint against DeSantis and his aides, who have been seen as increasingly blurring the lines between official state business and political work meant to advance DeSantis’ political aspirations. There are also two federal complaints alleging campaign finance law violations related to the governor’s super PAC.

Some recent examples:

  • Top deputies in the DeSantis administration, including the governor’s chief of staff, have solicited donations for his presidential campaign, an unprecedented shift from the traditional separation between the governor’s suite and the campaign.

The fundraising efforts, first reported by NBC News and confirmed independently by the Times/Herald, have been publicly defended by DeSantis’ office as appropriate because his staff was campaigning in “their free time.” Those actions, however, are now at the center of an ethics complaint filed Wednesday by Nikki Fried, the chairperson of the Florida Democratic Party.

  • A day after announcing his bid for president on Twitter alongside Elon Musk, DeSantis signed legislation benefiting spacelift companies such as SpaceX, a company controlled by Musk.
  • In the lead-up to the campaign’s launch, DeSantis’ aides sought endorsements from state lawmakers at a time when their budget and legislative priorities were still awaiting a decision from DeSantis. The action left some GOP lawmakers with the impression that their projects could be at risk if they did not endorse.
  • One Republican state senator who endorsed former President Donald Trump has accused the governor of slashing funding for his district for political reasons.
  • On social media, DeSantis’ taxpayer-funded state communications staff regularly promotes the political side and attacks the governor’s political foes. When criticized for it, they say the First Amendment protects their political commentary. They also argue they are not doing so “while on duty,” although many times posts happen in the middle of the day on weekdays.
  • Florida election officials quietly made changes to long-standing rules that have legally allowed DeSantis to transfer $82 million from his state-level political committee to an affiliated Super PAC, Never Back Down, which DeSantis’ campaign has allowed to take the lead on field organizing. In prior years, such transfers of funds were not allowed.
  • For the first time in modern political history, the governor has exempted himself from public records disclosure as he crisscrosses the country for campaign fundraisers and events. His travel — as well as the people who travel with him — are shielded from public records. So are the names of those he invites to the governor’s mansion in Tallahassee — where DeSantis has hosted Republican donors.
  • And, while, like most politicians, he touts policies on the campaign trail that are in sync with those he advances in office, he has been more ostentatious than previous governors in using state taxpayer resources to make his point outside of Florida. For instance, he is spending millions of taxpayer dollars to pursue out-of-state immigration efforts, which comprise a major theme in his presidential campaign. Most recently, the state sent two flights with roughly 30 South American asylum seekers from Texas to California.

“I don’t think that there is any question that they’re pushing the limits beyond the tearing point of what good ethical practices would be,” said Ron Meyer, a longtime Tallahassee-based Democratic campaign finance and elections attorney.

DeSantis on Thursday called the Democratic Party’s complaints “frivolous” and defended his staff’s calling lobbyists to solicit donations.

“So we have staff in the executive office of the governor who, in their private time, have wanted to do things to be able to help our campaign,” he said. “So they have called friends, asked for support, donations, all this other stuff. They have every right to do that. They don’t use state resources to do that, of course not. But you have every right as a private citizen to be engaged and to be involved.”

DeSantis and his aides have said that the governor simply does what he thinks is in the best interest of his state, regardless of the political implications. The governor repeatedly promotes this image in interviews and on the campaign trail.

“I think the country is more prepped right now than ever to get behind somebody who is going to say, you know what, we need someone who is going to fight against all this nonsense, that is going to do it smartly, that is going to be disciplined, that is going to be focused and going to bring this in for a landing,” DeSantis said in a recent interview with the Christian Broadcast Network at the governor’s mansion.

But even some Republicans have criticized the governor for mixing state business and his campaign. State Sen. Joe Gruters, a former Florida GOP chairman who endorsed Donald Trump’s presidential campaign, accused DeSantis of being “mean spirited” after the governor vetoed funding for projects in his district, arguing he did so for political reasons.

The role of the governor’s office staff

Nearly every candidate who has ever run for office has made their governing record a centerpiece of their campaign, arguing that good policy makes for good politics.

But while it’s typical for the governor’s staff to aid or play a role in political campaigns, DeSantis has raised eyebrows among Republicans who worked for previous Florida governors for the extent to which he has allowed the open use of his office in organizing rally-like news conferences, social media posts that target political opponents and, recently, even political fundraising.

“Clarity between government taxpayer paid salaries and service performed for taxpayers — citizens — and political activities for campaigns should be bright and clear for all involved participants,” said Kathleen Shanahan, the former chief of staff for Republican Gov. Jeb Bush from 2000 to 2003 including during his 2002 reelection campaign.

Shanahan and other former staff for Republican governors Bush, Charlie Crist and Rick Scott told the Miami Herald they were highly supportive of the political aspirations of their bosses but worked to keep what one called a “firewall” between the political operation and the campaign.

They held no political meetings in the governor’s office, they said, and required executive and communications staff to leave their governor’s office jobs to go to work for the campaign to do fundraising, conduct political messaging or plan strategy.

“Any perception of using your government platform to ensure support and or funds for campaigns could be easily misinterpreted,” Shanahan said. “Gov. Bush expected government employees to do work for every citizen, every Floridian to the best of our ability every day. Campaign-paid staff performed campaign activities.”

Taryn Fenske, DeSantis’ communications director, however, has argued there is nothing wrong with the governor’s staff dividing their time between the campaign and the governor’s office if they do so in “their free time.”

“If the executive team wants to fundraise, knock doors, or volunteer in their free time, more power to them — they have First Amendment rights like every American,” Fenske told NBC News when asked about DeSantis’ chief of staff James Uthmeier’s fundraising efforts for DeSantis’ presidential campaign.

Navigating political and state interests

DeSantis, of course, isn’t the first candidate to launch a presidential campaign while holding elected office.

Many recent presidents, in fact, began their candidacies while in office, including Bill Clinton (governor of Arkansas), George W. Bush (governor of Texas) and Barack Obama (U.S. senator from Illinois). Every sitting president who has run for reelection has also grappled with the potential for conflict of interest.

Occasionally, it’s gotten them in trouble: In 2019, former President Donald Trump was impeached by the U.S. House, charged with withholding military aid to Ukraine until it provided damaging information about then-presidential candidate Joe Biden. Trump denied the allegations and called the impeachment a politically motivated witch hunt.

The former president was ultimately acquitted by the U.S. Senate.

Florida does have a system of laws and rules in place intended to protect the public from an opportunistic elected official that uses government resources for personal gain.

On Wednesday, Fried, the state’s Democratic Party leader, filed complaints with the Florida Commission on Ethics and the Florida Elections Commission accusing three DeSantis staffers of soliciting campaign contributions from lobbyists in violation of state law.

State law prohibits public officials from using their government office to solicit contributions for any fund “for political purposes” and bars them from participating “in any political campaign for an elective office while on duty.”

The same day, a left-leaning group, End Citizens United, filed a complaint with the Federal Election Commission against DeSantis and Never Back Down, a super PAC supporting his presidential candidacy. It claimed DeSantis’ team illegally transferred $82.5 million from a state political action committee to the federal super PAC, a transfer that was facilitated by the DeSantis administration’s decision to quietly change some long-standing state election rules.

“Ron DeSantis’ transfer of these funds is a flagrant and egregious violation of federal law. These rules are designed to safeguard against undue influence over elected officials and outright corruption,” said End Citizens United President Tiffany Muller.

The complaints are in addition to a federal complaint filed by the nonprofit Campaign Legal Center in May that also accused DeSantis’ state political action committee of violating federal election laws for the transfer.

A ‘heavy handed’ approach

Darrell West, a senior fellow at the Washington-based think tank Brookings Institution, said he was concerned about both the report that members of DeSantis’ official office were pressuring lobbyists for campaign contributions and the governor’s approval of a law that would shield SpaceX from legal liability, saying they were “heavy handed” and “problematic.”

But any repercussion would likely have to come not from the legal system but from voters.

To government ethics experts, proving a conflict of interest is difficult, if not outright impossible, in most situations without a credible witness or smoking-gun email or document as evidence.

“It is generally left to the court of public opinion because the lobbying laws are very vague,” West said “It’s almost impossible to convict anyone of anything.”

In part, that’s because Florida’s campaign finance laws have gray areas.

“State law is fairly clear that a candidate can’t in the furtherance of his candidacy use the services of any state employee during working hours. The question that recurs is if it’s not during working hours, does that same prohibition apply? The statutes are a little gray in this area,” Meyer said.

Florida law, for example, allows the governor to use state planes for political and personal travel for security reasons but previous campaigns have reimbursed the state for the travel.

As DeSantis’ presidential campaign travels ramp up — taking up large chunks of his weeks — questions are mounting about whether taxpayers’ funds are being increasingly used to finance his political travel. The governor’s office and the campaign have not responded to requests seeking comment on whether the political side has reimbursed the state for some of these costs.

In the last month, DeSantis has campaigned in Iowa, New Hampshire, South Carolina, Arizona, Texas, North Carolina, Oklahoma, Nevada and California. He is expected to continue touring early-voting states, which his campaign has identified as a key for his path to win the GOP nomination for president in 2024.

“The voters have to be the ultimate judge on whether they think someone has acted improperly,” said Michael Thorning, director of structural democracy at the Bipartisan Policy Center. “And then it’s up for them to decide how to respond. Will they vote for the person or not?”

GOP strategists say DeSantis’ day job as governor presents opportunities and challenges for his presidential campaign. For one, it can be difficult to do both at the same time, forcing him to choose between performing official duties and doing campaign-related activities, including fundraisers and in-person rallies.

“Running for president is a full-time job. Full stop,” said Alex Conant, who advised Sen. Marco Rubio’s campaign for president in 2016. “Having a day job while you’re running for president means you’re having to sacrifice on one end or the other.”

Fenske, the governor’s communications director, suggested his staff is also willing to juggle both positions. In a statement provided to NBC News, she defended the use of state employees to raise money for DeSantis’ presidential run.

“The governors’ team is 100% behind him in his presidential run, because we know the great work he’s accomplished as governor,” Fenske said.

Gruters, the Republican state lawmaker, said he believes the governor has used public resources for personal gain, pointing to his veto of millions in funding for Gruter’s district projects.

In a text message, Gruters concluded the vetoes are a result of DeSantis being “clearly upset I endorsed Donald Trump for president, and so he took it out on the people of Sarasota County.”

The governor’s office did not respond to the accusations when asked for comment.

“It’s mean-spirited acts like this that are defining him here and across the country,” Gruters added.

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