The Biden campaign said it had $240 million cash on hand at the beginning of July. It likely burned through a good deal of that on ads, staffing and the like since then, but now that President Biden is out, there’s a question of whether any other candidate would or should have access to that money.
The short answer seems to be that Vice President Harris — who is already poised to be the new Democratic nominee — has a strong claim to the funds, because she was and is on the filing statements as a candidate with Biden. Other potential replacements would not, according to many campaign finance experts.
Those candidates would have to rely on Biden donating the money to an outside group or super PAC or he would have to stand one up on his own to support the potential Democratic nominee. But the candidate would not have control over that money or how it’s used.
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Some right-leaning campaign finance lawyers think it’s more complicated and don’t think it’s a slam dunk that Harris has access — despite the Biden campaign already changing its name to the Harris campaign.
Regardless, practically speaking, the question may be moot in the short term because of how long the Federal Election Commission takes to adjudicate complaints. Harris would almost certainly have access to the funds through the compressed campaign, and there’s little to nothing the FEC can do about it because of the timeline.
In fact, as some have pointed out, there are still open complaints to the FEC from the 2016 campaign.
Sean Cooksey, the chairman of the FEC, is a Republican appointed by former President Donald Trump. He’s one of three Republicans on the commission, along with three Democrats.
He intimated in a social media post that Harris might not actually be eligible to access the funds and kicked off a debate on the subject. He pointed to this regulation:
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11 C.F.R. § 110.1(b)(3): "If the candidate is not a candidate in the general election, all contributions made for the general election shall be either returned or refunded to the contributors or redesignated ..., or reattributed ..., as appropriate."
On NPR’s Morning Edition Monday, Cooksey said, “I think it's really complicated, is the short answer.”
He added, “I think it's going to have to go through a process through the FEC. I think I expect there's going to probably be challenges to that at the agency and probably in the courts, as well.”
Others disagree with that and see this as pretty cut-and-dried.
“It doesn’t look that complicated to me,” Ellen Weintraub, a Democrat and vice chair of the FEC, said in a phone interview. She’s a longtime commissioner of the agency.
She points to the fact that Harris’ name was always on the statement of organization for the Biden presidential campaign committee as one of the candidates.
“The bottom line is it’s the same committee,” Weintraub said. “She’s always been part of that committee; she never had a separate contribution limit apart from this committee that her name’s already on. It’s not just me. Lawyers all over town seem to be saying the same thing. Someone could undoubtedly come up with a technical argument, and I would keep an open mind, but it doesn't seem all that complicated to me.”
Cooksey conceded on Morning Edition that there are differences of opinion among legal experts.
"I think everyone would agree, though, that this is completely unprecedented, and it raises a lot of novel questions," he said.
Weintraub noted: “I think that clever lawyers can always come up with complications. It’s kind of what they’re in the business of doing. I wouldn’t be surprised to see someone try to challenge it in some way.”
But, she added, that there are questions about where such a challenge would be filed — and whether the filer would even have standing.
The FEC has long been hobbled by partisanship and a lack of resources in being able to address these kinds of matters in timely ways. Campaign violations are often penalized years later, and monetary penalties are usually relatively nominal to the millions, if not billions, of dollars spent on campaigns.
“The odds of all this happening and getting resolved before November,” Weintraub said, “are, practically speaking, not very good.”
On that, Weintraub and Cooksey seem to agree.
“One of the problems with those processes is they can take a lot of time,” Cooksey said on Morning Edition, “and we don't have a lot of time until the election.”
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