They may not have decided to run, but if they've filed with the FEC, they're a candidate, even if they refer to the committee as "exploratory."
Democrats attacked Missouri Attorney General Josh Hawley for soliciting funds for "Hawley for Senate" while he was still supposedly in the exploratory phase. Under the FEC's "testing the waters" guidelines, that's not allowed.
But Hawley's campaign later clarified that it had set up a regular campaign committee and just called it an exploratory committee.
Under a true exploratory committee, people can use their own money to test the waters. They can pay for political consulting or polling, for example, to gauge strength in an upcoming race.
They don't have to report any of the money spent during this exploratory phase to the FEC. But those expenses must be reported on the first FEC report filed after becoming a candidate. If the person never becomes a candidate, they don't ever have to report the money.
This pathway has become more common. "We're seeing more and more people from a business background and they want to know, 'Is this real? Am I viable?'" Toner said.
People can also start fundraising while testing the waters and still not file with the FEC. But they still do have to keep track of that money -- to which contribution limits apply -- and report it to the FEC if and when they become a candidate.
This is the path Fagg is taking.
A former Yellowstone County district court judge, Fagg announced in June that he would retire from the bench on Oct. 13 to open a private law firm. In June -- while he was still a sitting judge -- Fagg formed an exploratory committee for Senate.
Under the Montana Code of Judicial Conduct, judges can't publicly identify themselves as political candidates or raise money for political candidates. But Fagg insisted he was within ethical bounds since his exploratory committee didn't technically make him a candidate.