Trump Campaign Complaint About Harris Using Biden-Harris Campaign Funds Is Unlikely to Get Anywhere at the FEC or In Court, and If It Does It Will Likely Take Years

The New York Times reports that the Trump campaign has filed a complaint at the FEC against Kamala Harris for using the Biden-Harris campaign funds for her own campaign following Biden’s withdrawal from the 2024 race.

Most campaign finance lawyers I know believe that she can use the funds because it was a committee for both Biden and Harris. That’s the position of the nonpartisan watchdog Campaign Legal Center, for example.

Charlie Spies, a Republican election lawyer for for a time worked for the Trump campaign, wrote recently an oped in the Wall Street Journal where he advanced an alternative argument, based on the idea that Harris did not have the right to spend the money as the VP. Brendan Fischer points out that the argument would lead to some ludicrous results and makes no sense given how we think of presidential and vice presidential candidates.

The Times does not link to the complaint, so I’m guessing it’s going to make similar arguments to Spies, but we’ll see. Conservative campaign finance scholar Brad Smith (who was going to testify for Trump at his trial) said on Fox Business before this complaint was filed that the Spies argument was good but that the Harris argument is at least “plausible.” He did not think a judge would get involved, and I can think of no real-time enforcement by a judge of federal campaign finance laws.

Instead, as Smith explained, this will go to the FEC where it would take at least 60 days for anything to happen. And the FEC could well deadlock as it often does. The issue could then eventually get decided and end up in courts years later. We could be looking at the results of the 2028 elections or later before there’s something definitive.

In the meantime, the filing of the complaint gives Trump legal fodder to say that Harris engaged in a greater campaign finance violation than the one that formed the basis for turning his NY business records misdemeanors into felonies. I expect we’ll hear that a lot.

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Fusion or Super-Fusion?

“What Institutional Reform Would Most Depolarize Politics?”

A new Common Ground Democracy essay examines, with sympathetic skepticism, the growing interest among scholars in fusion voting, as evidenced by the recent open letter advocating it. The essay explains why, given the stated goals in favor of fusion voting–counteracting polarization and providing a basis for the “politically homeless middle” to express their electoral preferences–Convergence (Condorcet) Voting would be a much more effective way to achieve these goals. Indeed, using the example of this year’s presidential election, the essay shows how Convergence Voting could operate as a form of “super-fusion” to enable an alliance between Democrats and a new centrist party to prevent the election of authoritarian-leaning Republicans like the Trump-Vance ticket (whereas fusion voting of the kind advocated in the open letter would not similarly avoid the election of the Trump-Vance ticket, given the same set of electoral preferences among all voters). If states are to be encouraged to experiment with different potential electoral reforms in an effort to achieve the goals underlying advocacy of fusion voting, shouldn’t states be encouraged especially to experiment with Convergence Voting as a super-fusion electoral method?

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“Harris Clinches Majority of Delegates as She Closes In on Nomination”

NYT:

Vice President Kamala Harris moved swiftly to assert herself as the de facto Democratic nominee for president on Monday, her first full day as a candidate, as virtually every potential remaining rival bowed out and she clinched the support of enough delegates to win the nomination.

The Associated Press said late Monday that Ms. Harris had secured the backing of more than the 1,976 delegates needed to capture the nomination in the first round of voting. The pledged support is not binding until the delegates cast their votes, which party officials said would take place between Aug. 1 and Aug. 7.

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“Can Harris — or any other Democrat — access Biden campaign money?”

NPR:  

The short answer seems to be that Vice President Harris — who is already poised to be the new Democratic nominee — has a strong claim to the funds, because she was and is on the filing statements as a candidate with Biden. . . . .

Some right-leaning campaign finance lawyers think it’s more complicated and don’t think it’s a slam dunk that Harris has access — despite the Biden campaign already changing its name to the Harris campaign.

Regardless, practically speaking, the question may be moot in the short term because of how long the Federal Election Commission takes to adjudicate complaints. Harris would almost certainly have access to the funds through the compressed campaign, and there’s little to nothing the FEC can do about it because of the timeline.

In fact, as some have pointed out, there are still open complaints to the FEC from the 2016 campaign.

 Note:  Similar stories are in the WSJ, The Hill, Forbes, and other outlets.

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“Republicans claim a ‘coup’ attempt to delegitimize Kamala Harris’s candidacy”

The Guardian:

Mike Johnson, the Republican speaker of the House, suggested that Republicans would file lawsuits to try and prevent Biden from being removed from the ballot. The Oversight Project at the Heritage Foundation, the conservative think tank behind Project 2025, posted on X: “We have been preparing for this moment for months.”

The organization has been circulating a memo suggesting a strategy for challenging any effort by Democrats to replace Biden on the ballot.

Such litigation would likely be little more than a public relations effort – legal experts have said there is no barrier to another candidate appearing as the Democratic nominee on state ballots because Biden was never formally nominated. Whoever is eventually nominated at the Democratic national convention in August will be able to meet state deadlines for ballot access.

“Assuming the Democratic party formally chooses a presidential nominee before or during the Democratic national convention, there are no legal barriers to that candidate being on the general election ballot nationwide,” Adav Noti, the executive director of the Campaign Legal Center, a non-profit that works on election issues, said in a statement. . . . 

“It’s an old strategy to claim that the Democratic nominee is illegitimate,” said Richard Hasen, an election law scholar at the University of California, Los Angeles.

“From Obama’s birth certificate to Hillary Clinton’s emails to Joe Biden and Ukraine, and attacks on the fairness of the 2020 election, there has been a long road of seeking to cast Democratic candidates as somehow not entitled to hold office. Lawsuits saying the Democratic party process for replacing Biden is illegitimate would help feed into that narrative.”

Related:  

AP:  “Ballot access experts say Republican threats to sue over Biden’s withdrawal are ‘ridiculous’ and ‘frivolous’

PolitiFact: “Is replacing Joe Biden on the ticket ‘unlawful’? Election law experts say it’s not” 

NYT: “Trump Tries to Flip the Script on Democracy After Biden’s Withdrawal

Secure Democracy:  “Bipartisan Group of Top Election Officials Agree On Ballot Qualification Process Following Biden Announcement

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