Trump FEC complaint raises legal stakes for swapping Harris in for Biden

As Democrats pursue a smooth transition to another nominee after President Joe Biden’s withdrawal from the 2024 presidential race, Republican strategists and lawmakers are weighing legal challenges to swapping Biden’s operation for Vice President Kamala Harris‘s brand new campaign.

One of the top questions over whether Harris can smoothly slide into what was once Biden’s Democratic nomination is whether her campaign can easily inherit the $91.5 million leftover from what was the Biden campaign. The uncertainty was underscored on Tuesday when former President Donald Trump’s campaign filed a complaint to the Federal Election Commission against Biden and Harris, accusing them of violating campaign finance laws by sending the president’s funds over to the vice president.

Some campaign finance lawyers earlier this week jumped to conclusions that Harris has a legal claim to the campaign funds, but others, such as Federal Election Commission Chairman Sean Cooksey, raised concerns immediately after Biden dropped out from the race Sunday afternoon.

“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,” Cooksey, a Trump appointee, posted to X, citing Section 110.1(b)(3) of federal campaign finance regulations.

Holzman Vogel partner and campaign finance expert Steve Roberts told the Washington Examiner on Tuesday that the “FEC issue is very much live” due to the entirely unprecedented nature of Biden’s withdrawal.

Roberts, who is working on behalf of clients seeking to bring FEC challenges to the recent campaign switch, underscored that the roughly $95 million given by donors prior to Harris’s campaign launch should be returned “within 60 days.”

“There are frankly a few different angles that are worth pursuing here. The one in my mind that stands out the most is that they shouldn’t even have the opportunity to figure out what to do with the money because it should be refunded to the donors in the first place,” Roberts said, noting the only donations that wouldn’t be subject to scrutiny are contributions made since Biden dropped out of the race on Sunday.

As questions swirl over whether Harris can legally rake in the funds donated to the Biden-Harris campaign prior to Sunday, Cooksey said Democrats were trying to “silence” him after ranking House Administration Committee member Joseph Morelle (D-NY) penned a letter to “clarify a possible misrepresentation” of FEC law.

“All I did was quote federal regulations. Why are Democrats afraid of the law?” Cooksey said.

Cooksey maintained there will be challenges brought to the FEC, “and probably in courts as well,” according to an interview on NPR’s Morning Edition.

Ellen Weintraub, a vice chairwoman of the FEC, told the outlet that she is more prone to believe the transfer of funds will be legally sound, arguing that “the bottom line is, it’s the same committee.”

“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,” Weintraub added.

Some election law experts told the Washington Examiner if a lawsuit was successful, there could be workarounds for Democrats trying to get the money back into her hands, such as sending the funds back to donors with the hope that they will funnel their campaign dollars right back to Harris’s new campaign.

Roberts conceded that donors could always take the initiative of sending back the funds if they are returned, but the Harris campaign cannot “assume that somebody is going to make a new contribution at the same amount.”

Republican legal challenges could also involve ballot access issues.

House Speaker Mike Johnson (R-LA) joined other Republicans on Monday in warning that GOP-backed lawsuits could emerge to stop states from placing another nominee on the presidential ballot instead of Biden, who won primary battles across the country earlier this year without serious competition.

“In some of the states, there are impediments to just switching someone out like that,” Johnson told CNN.

“Fourteen million people went through the process and chose this nominee, Joe Biden. Now a handful of people have gotten together and decided he is no longer suitable,” Johnson said. “They are violating Democratic principles.”

Like other Republicans, Johnson offered only a vague glimpse at the potential challenges to come. But some GOP operatives have hinted at the inconsistent tapestry of ballot access deadlines across all 50 states as a starting point.

How quickly Democrats formalize their new nominee — Harris has said she has already secured the necessary number of delegates — will affect whether Republican groups have cases to make based on state deadlines.

Weeks before Biden bowed out of the race on Sunday, the loudest and most serious voice raising threats of ballot deadline-related lawsuits came from Mike Howell, executive director of the Heritage Foundation’s Oversight Project, who released a memo on June 21 outlining how such cases could be brought in the battleground states of Georgia, Nevada, and Wisconsin.

Of the three states mentioned in the memo, Wisconsin was the only one with a specific deadline of Sept. 3, and neither Georgia nor Nevada have specific deadlines for a candidate to be placed on the ballot. 

The earliest ballot-access deadline is Iowa, which requires parties’ nominees to be selected by Aug. 16. However, there is an exemption for late conventions, meaning that after the Democratic convention begins on Aug. 19 and ends on Aug. 22, the party will have five days to finalize the nominee for the Hawkeye State ballot.

Ohio had a deadline of Aug. 7, but the state recently enacted a law changing the date to accommodate the Democratic convention. However, the changes to the Ohio rules technically do not take effect until Sept. 1, prompting Democratic National Committee leaders to call for a virtual roll call well ahead of the start of the Aug. 19 convention.

Meanwhile, the Harris campaign on Monday evening gained support from more than the necessary 1,976 delegates she needed to be victorious on the eventual first ballot and earn the party’s nomination, and the DNC is seeking to have the process for making her the official nominee completed 12 days before the convention starts.

Even if the virtual vote was pushed beyond July, DNC Chairman Jaime Harrison said in a letter to delegates last week that it would aim to have it take place between Aug. 1 and Aug. 5 to be in compliance with Ohio’s Aug. 7 deadline and to avoid any potential lawsuits surrounding that cutoff point.

An election law expert who spoke under the condition of anonymity told the Washington Examiner he was wary of the floated ballot-access challenges, saying he believed the research behind those efforts may have conflicted “what is applicable for state candidates and not what is applicable for federal candidates.”

Howell’s memo concedes that 31 states “defer to state or national party rules and committees for nominating in the event of withdrawal,” which would make such challenges more difficult. He also told the Washington Examiner on Sunday he would not be offering any early previews of potential suits until they are docketed in court.

Howell indicated he did not want to telegraph such plans to the media or other Democratic election lawyers like Marc Elias.