Why is Joe Biden still in the presidential race? In the days since his disastrous debate performance last week, pressure on the 81-year-old incumbent to step aside has continued to mount, forcing the candidate and his defenders to put forth elaborate rationales for why the only option is the status quo. One that has gained traction among Biden’s supporters is that the campaign war chest, about $240 million, is his alone—or, at best, could go only to Vice President Kamala Harris.
On Sunday, Rob Flaherty, Biden’s deputy campaign manager, sent an email to the president’s supporters arguing that a contested convention would be “chaos,” all of which would be “in service of a nominee who would go into a general election in the weakest possible position with zero dollars in their bank account.”
[Jerusalem Demsas: Dropping out is Biden’s most] patriotic option
The point of arguments like this is to make you think, Well, I suppose the party’s hands are tied. That’s not true. And Biden’s supporters know it’s not true. Ultimately, nothing is holding back a change of candidate besides the people who don’t want to see one happen. No law or regulation prevents Biden from retiring and even endorsing whoever he truly believes is the strongest candidate. The choice is entirely up to Biden. Whatever comes next is up to him.
So what would happen if Biden were to relinquish the reins? The Stetson University law professor Ciara Torres-Spelliscy told me that the Democratic National Committee could get all of the Biden-Harris cash and dispense it as the organization sees fit for use on behalf of another candidate. The Federal Election Commission is clear, she explained, that “a candidate’s authorized committee may transfer unlimited campaign funds to a party committee or organization.”
In other words: If the Democrats field a different ticket, the only way the new presidential nominee enters the race with “zero dollars in their bank account” would be if Biden wanted that to happen. The substitute candidate could ultimately have use of not only the Biden campaign’s cash but also its offices, computers, cellphones, and other campaign infrastructure, which would be treated as in-kind contributions. (The torrential downpour of donations sure to drop on any Democrat challenging Trump makes the campaign-finance argument doubly empty.)
The argument that campaign-finance laws will punish any nominee other than the incumbent is an embarrassingly weak one for the president’s campaign team to be making. But it’s attractive to Biden boosters because it has the veneer of conclusiveness. It spares Biden and his aides from engaging with tougher considerations, such as that several alternative candidates (including Harris, Transportation Secretary Pete Buttigieg, California Governor Gavin Newsom, and Michigan Governor Gretchen Whitmer) outperform him in every battleground state.
[Adam Serwer: Biden must resign]
Other superficially decisive arguments have been floating around—for instance, that at least in some states no Democrat besides Biden would be able to get on the ballot at this point. This claim is also not true. The UCLA legal scholar Richard Hasen told me that if a candidate were to be replaced, “this is a good time for it to happen, before there’s been an official nomination.” That’s because, according to Hasen, state laws typically say that for major political parties, whoever is nominated at the convention is who goes on the ballot. “I don’t know how there’s a state law that locks Joe Biden in at this point as the Democratic candidate,” the state-election-policy lawyer John Ciampoli recently told the nonprofit newsroom NOTUS. “How can a state make someone a candidate when the party hasn’t made him their candidate yet?” After the convention, and particularly once states begin to print ballots, the logistics become far trickier.
But the Democrats still have choices. As The New York Times’ Ezra Klein recently pointed out, “If Joe Biden, God forbid, had some health crisis that made it so he could not run, Democrats would not just curl up into the fetal position and hand the election to Donald Trump.” The Democratic Party has an army of lawyers, consultants, and staffers waiting to be deployed to try to prevent Trump’s victory. The only binding constraint is the will of a handful of people at 1600 Pennsylvania Avenue.
People in power rely on a deference to the status quo. They rely on the difficulty of imagining change, of plotting a path to a better outcome. They rely on making you feel like you have to accept the hand you’re given. And right now they’re pretending there’s no way for anything other than the Biden-Trump matchup the country dreads.
