He intimated in a social media post that Harris might not actually be eligible to access the funds and kicked off a debate on the subject. He pointed to this regulation:
11 C.F.R. § 110.1(b)(3): “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.”
On NPR’s Morning Edition Monday, Cooksey said, “I think it’s really complicated, is the short answer.”
He added, “I think it’s going to have to go through a process through the FEC. I think I expect there’s going to probably be challenges to that at the agency and probably in the courts, as well.”
Others disagree with that and see this as pretty cut-and-dried.
“It doesn’t look that complicated to me,” Ellen Weintraub, a Democrat and vice chair of the FEC, said in a phone interview. She’s a longtime commissioner of the agency.
She points to the fact that Harris’ name was always on the statement of organization for the Biden presidential campaign committee as one of the candidates.
“The bottom line is it’s the same committee,” Weintraub said. “She’s always been part of that committee; she never had a separate contribution limit apart from this committee that her name’s already on. It’s not just me. Lawyers all over town seem to be saying the same thing. Someone could undoubtedly come up with a technical argument, and I would keep an open mind, but it doesn’t seem all that complicated to me.”
Cooksey conceded on Morning Edition that there are differences of opinion among legal experts.
“I think everyone would agree, though, that this is completely unprecedented, and it raises a lot of novel questions,” he said.
Weintraub noted: “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.”
But, she added, that there are questions about where such a challenge would be filed — and whether the filer would even have standing.
The FEC has long been hobbled by partisanship and a lack of resources in being able to address these kinds of matters in timely ways. Campaign violations are often penalized years later, and monetary penalties are usually relatively nominal to the millions, if not billions, of dollars spent on campaigns.
“The odds of all this happening and getting resolved before November,” Weintraub said, “are, practically speaking, not very good.”
On that, Weintraub and Cooksey seem to agree.
“One of the problems with those processes is they can take a lot of time,” Cooksey said on Morning Edition, “and we don’t have a lot of time until the election.”
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