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What Biden Can (And Can't) Do as He Mulls a 2016 Run

Vice President Biden can talk to potential supporters as he mulls a potential presidential bid but he'll need to raise campaign money to do more.

As Vice President Joe Biden mulls a presidential run, he is legally allowed to discuss the 2016 campaign with Sen. Elizabeth Warren (as he did on Saturday) and speak with potential donors (as he’s planning to do after Labor Day).

He’s even allowed to “test the waters” by making a visit to the early nominating states of Iowa or New Hampshire.

But here’s what Biden can’t do right now: actually pay the tens of thousands – or even hundreds of thousands – of dollars it costs for a sitting vice president to travel to places like Manchester, N.H., or Cedar Rapids, Iowa.

The reason? He doesn’t appear to have a fundraising vehicle – either a campaign account, Super PAC, leadership PAC, or his own personal wealth – to pay for it. And without one, he’s running out of options to do more.

“To test the waters, the first thing you have to do is raise the money,” says Larry Noble, the senior counsel at the Campaign Legal Center and former general counsel at the Federal Election Commission.

Under election campaign law, prospective presidential candidates can test the waters (travel, make phone calls, conduct polls) to determine a campaign’s viability – without reporting it publicly. The theory behind “testing the waters,” according to Noble, was to allow politicians to explore the possibility of a presidential run without it being known.

Indeed, these prospective candidates can raise or spend money during this testing-the-waters phase. But once they begin to actively campaign – either by referring to themselves as candidates, advertising to publicize their intention to campaign, or raising and spending excessive amounts of money – they’re considered candidates under the law.

Yet how the law is written can differ from how it’s enforced, says Noble – just see the 2016 candidates who were raising large sums of money and even referring (accidentally) to themselves as candidates before they announced their presidential bids.

Upcoming dates to keep in mind for Biden

As Biden mulls a White House bid, there are two dates to keep in mind for a potential candidacy:

  • Oct: 13: The date of the first Democratic debate
  • Dec. 7: The tentative filing deadline for the South Carolina primary (Feb. 27)

The filing deadlines for other early contests – in Iowa and New Hampshire – haven’t been set yet.