Since “The Debate” between Donald Trump and Joe Biden in late June the news cycle has been dominated by reaction to Joe Biden’s inescapable mental decline (which legacy media and Democrat politicians all suddenly noticed at the exact same time) and speculation about whether he will be replaced on the Democrat party presidential ticket.
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Each possibility has different legal and political ramifications to be considered. One issue is, just what would happen to the nearly $100 million cash on hand in Biden’s presidential campaign account? The popular wisdom among the pundit class has been that the money could only go to Kamala Harris, so if the Democrats didn’t replace Biden with Harris at the top of the ticket that $100 million is essentially unusable by any other candidate.
That’s not entirely correct, as attorney Charlies Spies, who formerly served as counsel to the FEC chair, explained in an analysis piece at the Wall Street Journal. Much depends on when Biden drops out, assuming that he does. Spies writes:
If Mr. Biden drops out before the Democratic Party formally makes him its nominee, then Federal Election Commission rules dictate that no more than $2,000 of any campaign funds that he raised may be transferred to any other candidate, including Ms. Harris. The Federal Election Campaign Act governs what a presidential campaign may do with “excess campaign funds,” which is what the money left in the Biden for President campaign will legally be considered if he is no longer a candidate. Those excess funds may be contributed in an unlimited amount to the Democratic National Committee or an independent expenditure committee. Presidential campaigns may also contribute such funds to other federal campaigns, subject to contribution limits, which are $2,000 per election.
In short: Before the nomination officially goes to Mr. Biden, his campaign is limited to donating $2,000 to the Democratic nominee, whether that new standard bearer is Gavin Newsom, Gretchen Whitmer or Ms. Harris.
Spies notes that Biden could quietly decide he’s going to drop out but wait until the convention in six weeks, but given the level of anxiety about the ticket on the Democrat side, that would be tough to pull off. But in answer to a question on Twitter, Spies said that if the Dems have an early roll call vote for the nomination (as has been rumored might be in the works), he could resign immediately afterward and Harris would have full access to the funds since she’d then be the vice presidential nominee.
Yes, that probably works, if it has legal effect (under their rules) of determining nominees.
— Charlie Spies (@cspiesdc) July 8, 2024
What if Biden doesn’t want to drop out, but DNC leadership determines that he has a disability that would prevent him from becoming the nominee? That would have no bearing on the disposition of the funds because the only way DNC leadership could pull that off is by making that determination after the DNC convention adjourns, meaning that Biden would also be the official nominee at that point. As I’ve written in the past, the DNC executive committee has the authority to fill the vacancy after the adjournment of the convention (not simply after the roll call vote for the nomination) per the 2024 Call to Convention, which is very specific on that point.
READ MORE: Yes, Democrats Can Replace Biden – With Newsom or Anyone They Want. Here’s How.
And, as Spies writes, if Biden were no longer the nominee and Harris wasn’t at the top of the ticket, the $100 million in the Biden campaign war chest “may be contributed in an unlimited amount to the Democratic National Committee or an independent expenditure committee,” so the Dems definitely aren’t completely constrained. However, candidates are entitled to the Lowest Unit Charge for political ads while parties and IE committees are not, so the $100 million wouldn’t stretch as far for any candidate not named Kamala Harris.
But when you’ve got major donors and bundlers bailing, having to pay a higher rate for advertising might be the better choice.
SCOOP: Major BIDEN donor Stewart Bainum Jr. tells me he will not be hosting events for Joe Biden until possibly after the convention, calling for him to drop out. Biden says he’s not leaving.
Some Biden bundlers have paused efforts to raise money. https://t.co/6o0bZBUCWs
— Brian Schwartz (@schwartzbCNBC) July 8, 2024
Between covering up for Joe Biden’s obvious mental decline for years, putting a kibosh on any true primary challengers, and choosing to hold their convention so late, Democrats have no one to blame but themselves for this predicament. It would be funny and entertaining if it didn’t also have such major ramifications for the country as a whole.
