President Donald Trump's campaign has been on a fundraising tear since the election he lost Nov. 3, emailing and texting supporters multiple times per day asking for contributions to his "Official Election Defense Fund."
The campaign is raising money off false assertions that have apparently helped it pay down its outstanding debt and will help finance the leadership PAC that could allow Trump to retain influence in the Republican Party even after leaving office.
We won't know how much the Trump campaign and the Republican National Committee have raised through these fundraising appeals until Dec. 3, when post-election campaign finance reports are due. But it doesn't look like much of the money he's been raising will actually go to pay for the recounts or the legal challenges.
Although the fundraising emails refer to an "election defense task force" or an "election defense fund," in reality, donors are giving to the Trump Make America Great Again Committee, where contributions are split between Trump's committees and the RNC.
Trump's barrage of lawsuits are incredibly unlikely to have much success, much less change the outcome of the election. And despite these frenzied solicitations asking for money to "defend the election," the funds these appeals are bringing in are not going first to Trump's nor the RNC's recount and legal accounts.
Instead, in the first week after the election, the small print on Trump's post-election donation landing pages showed that 60% of each donation would go toward paying down the campaign's outstanding 2020 election debt — $1.2 million as of Oct. 14, in the most recent filing deadline, but will likely be much higher for up to Nov. 3. The remaining 40% would go to the RNC.
In other words, small donors who gave thinking they were helping to pay for the campaign's legal bills were in fact largely helping cover the Trump campaign's debt. Until that debt was paid off, only those donors who had already maxed out at $2,800 to Trump's 2020 campaign would have any of their money go to Trump's recount account.
On Tuesday, a week after the election, the small print changed: Now, 60% of every donation goes to Trump's new leadership PAC, Save America. Only after a donor gives the $5,000 legal maximum to Save America would any portion of their contribution go to Trump's recount effort.
The remainder of every check, 40%, goes to the RNC, up to the legal maximum of $35,500. Only donors who've maxed out to the RNC will have their contributions deposited in the party's legal and headquarters accounts, each of which can accept contributions of up to $106,500.
Donations to these committees and their designated legal accounts are regulated by federal law. Trump's recount account may be used only for campaign-related recount and legal fees; he would violate the law if he were to try to spend any excess funds defending himself against tax or fraud investigations in New York, for instance, or for other personal legal expenses.
However, Trump's new leadership PAC offers far more flexibility than a recount account. A leadership PAC is supposed to be used to make contributions to candidates, but it also might be used to finance Trump's travel and rallies, to pay for events at Trump properties and for other purposes. Additionally, although federal law states that any "contribution accepted by a candidate" cannot be used for personal expenses — such as excessive consulting payments to family members or a trip to Disney World — the Federal Election Commission has created ambiguity about the extent to which the personal use ban applies to contributions accepted by a candidate's or officeholder's leadership PAC.
In 2018, we at Campaign Legal Center, along with Issue One and five former members of Congress (both Republicans and Democrats), filed a rulemaking petition asking the FEC to clarify that candidates and officeholders cannot abuse funds held in their leadership PAC. The FEC sought and received comments on the petition but so far has failed to act.
Trump has spent the past four years defying norms and the law, and we shouldn't be surprised if he also seeks to exploit legal gray areas with his new leadership PAC. When the FEC's quorum is restored, it should act swiftly to adopt rules that prevent Trump or any other candidate from abusing donor funds held in a leadership PAC.
Potter is a Republican former chairman of the Federal Election Commission and the president of the Campaign Legal Center. Fischer directs Campaign Legal Center's work before federal regulatory agencies such as the Federal Election Commission. This piece was written for The Washington Post.