President Biden’s sudden and unprecedented withdrawal with just months to go until the 2024 presidential election raises many questions. One key question is how this unusual scenario will affect Kamala Harris and the Democratic Party from a campaign finance perspective.
First, the Democrats have already renamed the “Biden Campaign for President” to the “Harris Campaign for President,” and presumably this “new” organization has already spent some money, meaning the Democrats are now committed to their claim that the Harris Campaign for President is entitled to receive the money raised by the Biden Campaign for President.
This course is important because of the legal background and relevant campaign finance rules.
Each candidate has an “Official Committee.” A committee cannot be the “Official Committee” for more than one candidate. A candidate’s Official Committee $2,000 They serve on separate candidate committees, with the exception that once nominated, a party’s presidential and vice presidential candidates share a single nomination committee.
Democratic Party position That means Harris shared the Biden Presidency Committee with Biden since she was named vice president in 2020. The argument is that Harris can now access and spend those funds, but Republicans are expected to counter that Harris only had access to those funds through the 2020 general election.
At this time, and since November 2020, she has not been the candidate of any party, nor has she been campaigning on her own. To campaign, she would have had to appoint a separate “certifying committee.” We may all “know” that the planned matchup was Biden-Harris, but it was not official. Biden or a delegate rebellion could have cost her the election.
While Biden was a candidate for reelection, Harris was not officially a presidential candidate or the party’s nominee.
Republicans will therefore argue that both the Biden Campaign and the Harris campaign are violating the law by using Biden Campaign funds to benefit the Harris campaign.
As expected, the Republican response was swift. The Trump campaign I just filed a complaint with the Federal Election Commission.They argued that Democrats violated campaign finance laws by transferring Biden’s campaign funds to Harris.
From here, statutory deadlines and enforcement procedures (over which the FEC has no authority) give the FEC at least 60 days to sue in federal court for civil penalties or injunctions, or to ask the Department of Justice to prosecute for “willful” violations, i.e. criminal violations. But that doesn’t give the FEC time to analyze the case, convene and vote, etc.
So even if these processes were to be carried out at breakneck speed in response to complaints, it would almost certainly be mid-October before the committee takes a final vote to clear the Democratic committee of violations, at which point Democrats could simply refuse to pay the fine and the FEC could sue them in federal court to enforce the decision.
Of course, it is unlikely that a court would try a party or rule on a cross motion for summary judgment before the election. The Federal Election Commission can seek a preliminary injunction, but what court would issue a preliminary injunction blocking a party just days before the election if there was at least a legitimate argument that the law was on that party’s side?
That won’t happen. Even with all of the above unrealistic assumptions about how quickly the FEC can act, the decision will come after the election. Even if Democrats have to pay a fine at that point, it’s just the price of winning the election now.
But in reality, that’s even less likely, because even that scenario assumes that the Federal Election Commission could get one of its Democratic commissioners to find a violation (as it would need to do). How likely is that outcome, given the plausible (though probably incorrect) arguments Democrats have previously made about interpreting the law?
It is worth noting that the Commission’s structure and process are intentionally designed to move at a thoughtful, deliberate pace. The bipartisan nature of the FEC, with an equal number of Democratic and Republican commissioners, serves as an important safeguard against partisan enforcement of campaign finance laws and hasty actions that could improperly interfere with political speech.
This mechanism, which some mistakenly see as flawed, is actually an important feature for protecting speech: It ensures that any enforcement action or new regulation requires bipartisan agreement, and prevents either party from using the committee to unfairly stifle the political speech of its opponents, especially when, as in this case, “the other side” has a plausible case.
In other words, in the case of a “tie”, the speaker wins.
The bottom line here is that, despite the Trump campaign’s complaints, nothing is likely to happen before the election. Assuming Harris becomes the nominee, as now seems a given, she would likely have access to the funds and any fines or legal repercussions would be dealt with after the fact.
There are other aspects to all this that need to be considered. For example, Democrats operating under the assumption that the Biden Committee can seamlessly transition to the Harris Committee closes off the possibility that donors who have already given the maximum legally allowed to the Biden campaign could now give to the Harris campaign. If the Biden-Harris Committees were one and the same and Harris was entitled to Biden’s money, there would be a single legal limit on donors.
If Harris doesn’t win the nomination for any reason, Democrats would have to ask her to transfer her remaining funds to the Democratic National Committee (DNC) or at least a super PAC, which would allow either to spend independently to support a candidate.
For Democrats, being limited to independent spending has two drawbacks. First, Democrats cannot tailor their ads, making them less efficient and effective than if candidates were allowed to spend money on their messages. Second, unlike candidates, Democrats do not get a “minimum unit rate” for ad buys, making broadcast advertising more expensive, sometimes significantly more expensive.
And there’s a slim chance that an outraged Harris might take action, such as defunding the DNC and donating to her alma mater to create a fantastic Kamala Harris Library.
As the above makes clear, we are in the midst of an uncertain situation that can only be predicted to a certain extent. There may be further twists and turns in what is already a very unique election season. That said, in my view, the scenario outlined above is the most plausible.
Bradley A. Smith Free Speech Institute former chairman and commissioner of the Federal Election Commission;
