On Sunday, President Joe Biden stunned the nation when he announced that he was no longer seeking reelection and endorsed Vice President Kamala Harris as his successor at the top of the Democratic Party ticket. The news came several weeks after a widely lambasted performance by Biden against Republican nominee Donald Trump, which reignited fears about the current president’s age, health, and fitness for office, and prompted a growing number of Democrats to urge him to drop out of the race.

As the Democratic Party gears up for its mid-August convention in Chicago, where it will officially name its candidate for president, questions remain about whether Harris — or another presidential hopeful — can access hundreds of millions of dollars raised by the Biden reelection campaign and other groups. In fact, former president Trump has already signaled that he will contest Harris’ use of the funds, submitting a complaint to the Federal Election Commission on Tuesday.

But according to Nicholas Stephanopoulos, the Kirkland & Ellis Professor of Law at Harvard and an expert in election law, the Trump filing isn’t likely to block Harris — if she is selected as the party’s nominee — from using the Biden reelection campaign funds. “Harris has the keys to the account right now and any complaint about that is not going to be resolved by the FEC” before the election, he says.

In an interview with Harvard Law Today, Stephanopoulos explains how the party nomination process will work, why Harris should have no trouble accessing campaign funds, and why other legal challenges to Biden’s replacement as candidate will likely fail.

Nicholas Stephanopoulos
Credit: Jessica Scranton

Harvard Law Today: Given that Biden was chosen as the nominee by voters through the primaries, is the Democratic Party allowed to just change its nominee? If so, practically, how does that work?

Nicholas Stephanopoulos: So, it’s important to remember — Biden was not the actual, official nominee of the Democratic Party yet. He was just the presumptive nominee because he had accumulated enough pledged delegates to get a majority of the total number of delegates. But the convention hadn’t happened. The delegates hadn’t voted. And, so, he hadn’t yet become the nominee. Once President Biden dropped out, the party was free to identify a different nominee. The ultimate bar for becoming the Democratic Party nominee is just having an outright majority of delegates voting for you at the convention in August. Now it appears that Kamala Harris is going to have an outright majority of delegates backing her. If so, under the pre-existing standard Democratic Party rules, she’ll receive the official nomination. Things might have been a lot trickier if Biden had pulled out after becoming the official nominee. But because he pulled out before the convention, things are a lot simpler.

HLT: With the rules regarding campaign fundraising, is there a difference between funds that are raised by the official Biden-Harris campaign and those raised by supporting organizations?

Stephanopoulos: There is a difference in that all of the various Super PACs or party committees or other entities that are raising money can spend that money however they want to regardless of who the nominee is, so it makes no difference for any of these other groups, legally, whether the nominee is Biden or Harris.

For Harris, in particular, she has just inherited the money that the Biden-Harris ticket had previously raised and so, about a hundred million dollars just went under her direct control after Biden dropped out because she was already on the ticket. Campaign finance lawyers have questioned whether that’s strictly kosher. It’s not going to make a difference practically because Harris has the keys to the account right now and any complaint about that is not going to be resolved by the FEC remotely in time for the election. So while there is a little cloud of doubt over whether it’s completely fine for Harris just to inherit all this money that was given to Biden-Harris, as a practical matter, she’s doing it, and any legal doubts will most likely remain open until after the election.

“While there is a little cloud of doubt over whether it’s completely fine for Harris just to inherit all this money that was given to Biden-Harris, as a practical matter, she’s doing it, and any legal doubts will most likely remain open until after the election.”

HLT: Is there a chance that those legal doubts would possibly be raised in courts ahead of the election?

Stephanopoulos: This would be at least initially an FEC matter. And so, doubts might be raised before the election, but the FEC moves notoriously slowly. There’s virtually no chance that the FEC is going to decide anything on this question before the election. The FEC is still currently deciding complaints about the 2016 election. In all likelihood, the commission is years and years away from deciding this tricky, novel issue of what happens to campaign funds when the head of the ticket pulls out before the convention, but the understudy of the ticket stays in and becomes the nominee. It’s an interesting, difficult, novel question. We’re not going to have an answer before November.

HLT: So for the purposes of campaign donations, running mates who are on the same “ticket” running for president and vice president are a package deal? If somebody said they donated to President Biden three weeks ago, for example, were they donating to President Joe Biden or the Biden-Harris campaign?

Stephanopoulos: For the current 2024 presidential election, the Biden-Harris Campaign is technically where those donations have been going. That’s a fund that supports the campaign for president and the vice president. If the presidential nominee wasn’t someone already on the ticket, for example Gavin Newsom, it would be more cut-and-dry that Biden-Harris campaign funds could not go directly to him. With a non-Biden/non-Harris nominee, the money would have to stay independent from the new candidate and most likely end up with the Democratic National Committee (DNC) or some other party committee. The entity receiving those funds could still use that money to support the new candidate, it just wouldn’t be able to transfer those funds to the new candidate directly.

HLT: So, from a campaign fundraising standpoint, there’s a big difference between whether Kamala Harris is selected as the nominee or not?

Stephanopoulos: Only in terms of who would be in possession of the fund. It wouldn’t make that much difference ultimately because the money could still be spent on behalf of the nominee, just independently by the DNC instead of directly by the candidate.

HLT: Can you explain that a little bit?

Stephanopoulos: Let’s say Newsom became the nominee and there’s a bunch of money left over in the Biden-Harris account. That money could not go to Newsom directly, but it could go to the DNC’s account, which is separate from Newsom. And at that point, the DNC would also not be allowed to just give the money to Newsom. But the DNC could spend the money on its own advertising about how great Newsom is and that would be totally permissible. That would be independent spending. It wouldn’t be a contribution to Newsom’s campaign. At the moment, it doesn’t seem like this scenario will come into play. But if somebody other than Harris had been the nominee, that’s what would have happened.

HLT: Are there state laws that could disrupt ballot access for candidates? Some have expressed concerns that an Ohio state law, for example, could hypothetically create a wrinkle in the nomination process. What sort of legal challenges, if any, would you expect the Democratic party to face in changing the name on the ballot?

Stephanopoulos: I think with the switch happening now, before there has been an official nomination, there aren’t going to be any serious legal issues about ballot access for Vice President Harris. It’s going to be exactly as if Biden were the nominee. There will be a roll call vote of all the different state delegations on August 7. As a legal matter, that roll call on August 7 is going to make Harris the official nominee for the party. That’s the exact same roll call vote that would have otherwise made Biden the nominee. And so, there’s going to be zero legal effect to switching from Biden to Harris at this point.

The Ohio law that you mentioned came up because the Democratic Convention is unusually late this year. State election policy in Ohio had previously required major party nominees on the general election ballot to be named by “x” date; however, the date they chose actually preceded the Democratic Convention. So there was concern about Harris getting onto the ballot in Ohio, if she’s not nominated until after the state’s deadline for disclosing the identity of the nominee on the general election ballot. The roll call vote was the solution to that issue. So, the formal nomination will take place through that roll call vote before the convention itself. And then in any event, Ohio changed its law to say that now a major party only has to tell us who its nominee is by September 1 to get on the general election ballot. So now the Ohio law is doubly irrelevant.

HLT: Do you expect that there will be any other sort of legal recourse sought by the other side to either stop the ballot change or to stop the campaign funds from being utilized?

Stephanopoulos: I think there’s zero plausible claim with respect to ballot access, and so I think that nothing material is going to happen in the courts with respect to ballot access. It’s just completely clear that with Harris becoming the presumptive nominee now, she’s in the identical legal position to the one that Biden would have been, and no deadline has been missed or will be missed courtesy of the early roll call vote. And so literally, nothing has changed.

As I mentioned, for campaign finance, there’s this novel situation when you have the vice presidential candidate on a ticket becoming the presidential candidate after the presidential candidate drops out, all before the convention. There is no precedent to point to that can establish for sure that the vice president, the former vice presidential candidate, gets to inherit all the money that was given to the ticket. So, I do think that some complaints will be filed with the FEC about that. And there, I think the key issue is not the legal merits of the claim. It’s just time. As I mentioned, the FEC takes years and years to resolve these sorts of disputes. As a result, nothing will happen before the November election.

HLT: In terms in terms of campaign finance generally, there have been claims that Elon Musk was supposedly donating $45 million a month in support of former President Trump. Meanwhile, an individual in the United States of America can only donate approximately $3,300. Do you have any explanation for the disparity between the two approaches? Is there a logical basis behind our campaign finance laws?

Stephanopoulos: I don’t like our campaign finance system. I can explain what it is, but I don’t like this system or this distinction. For about half a century, the Supreme Court has said that there is a stark fundamental difference between campaign contributions and campaign expenditures. According to the Court, it’s permissible for governments to regulate campaign contributions, but it’s not permissible for governments to regulate campaign expenditures. And so when Elon Musk is giving money to a Super PAC, that Super PAC is then going to spend the money supposedly, independently from Donald Trump’s campaign, and that makes it fall into the campaign spending bucket, which is unregulable. But then, if Elon Musk wants to give money directly to Donald Trump’s campaign, well, now that falls into the campaign contributions bucket. And at that point, the federal limit on campaign contributions applies.

Back in the 1970s, when Congress passed this law, Congress wanted to regulate both campaign contributions and expenditures. It didn’t want to create a massive loophole to let somebody like Elon Musk use unlimited sums to support his preferred candidate. But the Supreme Court in its infinite wisdom drew this distinction between contributions and expenditures, and we’ve had to live with that, I think, flawed distinction. 

HLT: Is there the same level of scrutiny with Super PAC expenditures that there is with presidential campaign expenditures?

Stephanopoulos: They are tracked. The only good thing about Super PACs is that we know where their money is coming from and where the money is going. So, there’s a reasonable disclosure system that applies to Super PACs. There are other kinds of groups, dark money groups, that are exempt from many of the disclosure requirements, but they have their own disadvantages too. Ultimately, when a rich person wants to directly influence electoral politics, a Super PAC is often the best vehicle. And to use that vehicle, the money has to be disclosed.