Vice President Kamala Harris has been one of President Joe Biden's staunchest defenders following his shaky performance in last week's debate, but she's also emerged as a potential option to lead the party herself if Biden opted not to continue his campaign.
One big question is what would happen to the current campaign's $91 million cash on hand, according to its most recent filings. (Combined with allied Democratic organizations, the reelection effort has access to $240 million cash on hand, the campaign said this week.)
Yes, although there are some caveats.
Since their campaign account was registered with the Federal Election Commission in the name of both candidates, Harris could use those funds for her own presidential effort if Biden were to drop out, according to Kenneth Gross, senior political law counsel at Akin Gump and former associate general counsel for the Federal Election Commission.
Only if the campaign said yes.
Legal scholars agree that if donors were to ask for their money back after a candidate switch, the campaign would need to agree to that transfer. That means donors don't have an automatic right to get refunded.
“Once a donor makes a contribution, he or she relinquishes the rights to those funds,” Gross said.
Displeased donors thinking about suing likely wouldn’t succeed, according to Bradley A. Smith, professor at Capital University Law School in Ohio.
“When you give money to a campaign committee, it is pretty much theirs to do with what they please, within the boundaries of the law," he said.
According to Gross, their campaign would have to give all the money back — sort of.
Any donations designated for the primary — which Biden won — would stay with the campaign, Gross said, something that technically could apply to any money taken in by Biden-Harris up until the Democratic National Convention in August.
“All contributions made prior to the August convention are deemed to be for the primary unless the donor designates in writing that the contribution is for general election,” Gross said.
According to Smith, if Biden left the race and Harris didn’t replace him as nominee, their former campaign could only transfer $2,000 of the money that had been collected to a new candidate.
Maybe, but it might not be worthwhile.
According to Gross, if both Biden and Harris either drop out of the contest or don't become their party's nominee, they could opt to designate the campaign funds for a super PAC or the party itself.
But if those transfers did happen, Smith said, “the vast bulk of it would have to be in independent expenditures, which tend to be less effective.” Plus, he added, guaranteed broadcast advertising rates are higher for parties than for candidates, “so that has a cost, too.”
If Harris is left in the race, she could also do that with the funds, too — or keep them for her own effort.
And if the account, in general, were converted to a political action committee, that new entity would have limits on what it could send to the new candidate, said Saurav Ghosh, director of federal campaign finance reform for the Campaign Legal Center.
“Even if Biden’s campaign committee immediately converted to a political action committee, which is allowed, that PAC could only transfer up to $3,300 per election to the new presidential candidate’s campaign," Ghosh said. “There’s no legal way for Biden to transfer to a new candidate the $90 million that his campaign currently has on hand.”
The presidential race options aside, Smith suggested that the Biden-Harris funds could be transferred to Democratic committees backing House and Senate candidates, or punted even further down the electoral timeline, to “support Democrats in future years.”
Other options, he suggested, could include a group created to promote causes and issues in line with the candidates' views — “or they could give it to charity, including, for example, a really boffo Joe Biden Center at University of Delaware.”
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Meg Kinnard reported from Chapin, South Carolina. She can be reached at http://twitter.com/MegKinnardAP
