GOP Whines That It's NO FAIR Kamala Gets Joe's Money
Oh, yeah, the FEC will get right on that ...
Despite weeks of rumors that it was coming, Biden’s announcement that he was bowing out of the race seems to have caught Republicans by surprise. A president who willingly gives up power instead of sending a mob of goons to lay siege to Congress? UNPOSSIBLE!
But the initial shock has worn off, and now the Trump campaign has come up with a surefire plan to beat Vice President Harris at the polls. And that plan is racism!
Seriously, WTF is this?
Also sexism!
And if that doesn’t work, they’ll try to make sure the childless cat lady doesn’t have money to run a real campaign.
Toward that end, they’ve filed an FEC complaint attempting to prevent Harris from taking control of the $91 million in contributions sitting in the Biden campaign’s coffers.
“Kamala Harris is seeking to perpetrate a $91.5 million dollar heist of Joe Biden’s leftover campaign cash — a brazen money grab that would constitute the single largest excessive contribution and biggest violation in the history of the Federal Election Campaign Act of 1971, as amended,” the Trump campaign’s attorney David Warrington wrote, according to the New York Times.
“To date, Biden for President has provided no indication that it will return or redesignate all of its general election contributions,” he blustered. “Thus, each and every general election contribution received by Biden for President is an excessive contribution.”
This is — not to put too fine a point on it — horseshit. Harris’s name has been on the FEC documents for more than four years, through nine separate filings by the Biden-Harris campaign, which is why virtually every election lawyer agrees that the move is entirely kosher.
When a candidate declares for office, he or she must file a “Statement of Organization” for their principal campaign committee, known as FEC Form 1. Biden filed his first FEC Form 1 during the 2020 primaries on March 20, 2020, and was assigned FEC number C00703975. On line 3 of that form, the “candidate” is listed as “Joseph R. Biden, Jr.” because he had not yet selected a running mate.
On August 11, 2020, immediately after he secured the nomination at the 2020 DNC convention, Biden amended his Form 1 to read “Candidate: Kamala Harris Joseph R Biden Jr.” He filed two further amendments in the 2020 cycle, one immediately after winning the general election and one eight days before his inauguration, both of which listed Harris as his co-candidate.
Indeed, in each of four subsequent amendments, FEC number C00703975 has consistently been associated with Kamala Harris and Joseph R. Biden, Jr. — which makes sense, given then the president and vice president run jointly. On July 21, the day Biden withdrew from the race, Biden and Harris amended the form again, this time renaming the committee “Harris For President.”
Given that history, even Hans von Spakovsky, the chief election ratfucker for the Heritage Foundation and an OG vote suppressor in his own right, rubbishes the idea that Harris can’t use the campaign funds. In an editorial for Fox News, he wrote that Harris functionally inherits the funds “because when the Biden for President committee filed its registration statement with the FEC, it registered itself as the ‘principal campaign committee’ for both Joe Biden and Kamala Harris.”
The only marginally credible person claiming otherwise is Charlie Spies, a former FEC commissioner who got pushed out as counsel for RNC for insufficient MAGA-tude. In the Wall Street Journal, Spies made the bizarre claim that Biden would have had to first become the Democratic party nominee if he wanted to legally bequeath Harris his campaign war chest.
Spies relies on 11 CFR § 103.4, which says:
Any campaign depository designated by the principal campaign committee of a political party's candidate for President shall be the campaign depository for that political party's candidate for the office of Vice President.
He argues that, because Joe Biden was not yet the Democratic Party’s nominee for president, he was also not its candidate either, and, a fortiori, Kamala Harris was not the candidate for vice president.
Several news outlets have described this reasoning as “textualist,” but in reality it is anything but. A “textualist” analysis of 11 CFR § 103.4 would interrogate related regulations and the underlying statutes to determine whether the FEC and Congress deliberately chose to use the word “candidate” instead of “nominee,” or if the terms are used interchangeably.
And here, the answer is pretty clearly no.
The implementing legislation governing campaign committee accounts, that’s 52 U.S.C. § 30102(e)(1), describes the relevant difference between a nominee and a candidate:
Each candidate for Federal office (other than the nominee for the office of Vice President) shall designate in writing a political committee in accordance with paragraph (3) to serve as the principal campaign committee of such candidate. Such designation shall be made no later than 15 days after becoming a candidate.
In other words, the Federal Election Campaign Act specifically exempts a vice presidential nominee from the obligation to operate a separate campaign committee while on the presidential ticket. And it’s not difficult to see why.
As Brendan Fisher, the former head of the Campaign Legal Center points out, forcing the vice president to maintain a separate campaign committee would provide a perverse incentive to set up a sham “presidential campaign” to evade campaign finance limits. Under 52 U.S.C. § 30116, individuals are capped at $3,300 in contributions “to any candidate” during any election cycle. If Harris was considered separate candidate for purposes of federal election law, then donors could have given $3,300 to Biden and another $3,300 to Harris during the primaries, even though both contributions would have wound up being used by the same campaign.
That can’t possibly be right, and the only logical conclusion is that Biden and Harris are treated by the FEC as one candidate, and thus FEC principal campaign committee No. C00703975, now titled “Harris For President,” has always belonged to the both of them.
If the party grandees had been permitted to live out their fantasy of a Survivor-style convention, after which Biden had tried to hand off his campaign war chest to a different nominee, Warrington might have had a point. As Spakovsky notes “under FEC regulations, the new nominee would have no access to or control over the Biden for President campaign cash.” Biden would have had to hand the money over to the DNC, leaving the new nominee to start from zero. But of course, that’s not what happened, and so Warrington is left to pretend that Harris isn’t entitled to access funds in the war chest that’s had her name on it for four straight years now.
Finally, it’s worth pointing out on a practical level that the current FEC is split evenly between 3 Democrats and 3 Republicans, and any action requires four votes to proceed. But even if the FEC wanted to do something, it must follow the enforcement provisions of 52 U.S.C. § 30109, which will run out the clock on the 2024 election long before the FEC can act. Specifically:
The FEC must notify President Biden and Vice President Harris of Trump’s complaint within five days of filing, or on or before July 30.
Biden and Harris then have 15 days to file a written brief arguing that the FEC should take no action on Trump’s complaint. That’s August 14. The FEC can also dismiss the complaint sua sponte during that period.
If the FEC does not dismiss, and the Commissioners vote by a 4-2 or greater margin that it “has reason to believe that a person has committed, or is about to commit” an election law violation, they can then conduct an investigation “which may include a field investigation or audit” of indeterminate length.
After said investigation, if the FEC, also by a vote of 4-2 or greater, determines that there is probable cause to believe that a person has committed or is about to commit a violation of election law, it must try for at least 30 but no more than 90 days to “correct or prevent such violation by informal methods of conference, conciliation, and persuasion,” although that period can be shortened to 15 days within the last six weeks of an election.
If that process fails, the FEC is required to notify the candidate in writing and permit 15 days for the filing of a response brief by the campaign.
After that, the FEC must give the candidate “written notice and an opportunity to be heard before the Commission” before making any adverse determination.
Finally, if the FEC does make an adverse determination, the candidate has 30 days to challenge that determination in federal court.
In other words, the November 5, 2024 presidential election will have come and gone long before the FEC could take any legal action to prohibit Kamala Harris from using those funds.
In the meantime, Democrats are brushing off the Trump campaign’s complaint.
"Republicans may be jealous that Democrats are energized to defeat Donald Trump and his MAGA allies, but baseless legal claims – like the ones they've made for years to try to suppress votes and steal elections – will only distract them while we sign up volunteers, talk to voters, and win this election," Harris’s spox Charles Kretchmer Lutvak crowed. And then he went back to counting the metric shit ton of cash that poured in since his boss assumed the top of the ticket.
I used to laugh along with you, Liz. Then came Aileen Cannon.
This is a really great essay, thank you. And besides this: When I donated to Biden's campaign, I never said "oh and don't let Kamala have any of it". My intention was that it goes to THE CAMPAIGN, which was both of them. The law reflects my intent. Isn't that NICE?