Feb. 8, 2016 SIGN IN | REGISTER

Saying Too Much?

Biden’s Frankness on ’08 May Be Ill-Advised

Playing down one’s own presidential ambitions is a time-honored tradition in Washington, D.C. But Sen. Joseph Biden (D-Del.) appears to have decided to forgo the intrigue and just swan-dive right in — a gambit that could draw the ire of federal regulators.

When asked, Biden has stated that he’s already thrown his hat in the ring, a strategy an aide said would show he’s “straight with voters.”

But while the Delaware Senator’s eschewing of the tried-and-true linguistic somersaults may help him at the polls, some election lawyers say that candor could land Biden in hot water with the Federal Election Commission, for the transgression of undeclared campaigning.

While officials at the FEC declined to discuss potential enforcement cases, they pointed to the agency’s campaign guide.

The guide explains that because some candidates “may first want to ‘test the waters’ — that is, explore the feasibility of becoming a candidate,” potential candidates may travel and meet with voters “to see if there is sufficient support for his candidacy.”

But if they do that, they must not “campaign” — and “campaigning,” an activity that would trigger registration and reporting requirements, includes statements made by individuals “that refer to themselves as candidates,” according to the FEC guide.

So let’s go to the tape. When Biden appeared on Don Imus’ radio show on Aug. 17 of this year, Imus asked him, “What are you doing in Iowa?”

“I am running for president,” Biden said.

And when he was being interviewed by Chris Matthews a day earlier, Matthews asked, “So you’re running for president in 2008?”

“I am,” Biden answered. “I am.”

Some election lawyers say that with those utterances, Biden already may have exceeded the threshold set by the FEC guide.

“If it’s a one-time slip-up, then I don’t think it’s terribly consequential,” said one election lawyer. But “it’s sloppy, and nobody should do it.”

For someone to say they’re running for office is what the experts refer to as a “performative utterance.”

Elena Herburger, a Georgetown University linguist, offers “I thee wed” — a quintessential performance utterance — as a reasonable comparison to what Biden may have said.

“It’s doing something by saying something,” Herburger said. “Whereby making the utterance itself, it means something — like ‘I thee wed’ — which can have legal consequences.”

According to John Hirsh, a medieval scholar at Georgetown, a typical Christian wedding in England during the Middle Ages “was actually performed by the people who were getting married.” Standing at the church doors, the couple proclaimed their intentions.

At the moment the couple announced, “I thee wed,” the deal was done.

Officials at Biden’s leadership political action committee, Unite Our States, acknowledged that the six-term Senator is standing at the chapel door and has stated his intentions. But he has not, they say, violated the “testing the waters” provision and passed the point of no return.

“He has explicitly and implicitly said he is running,” said Danny O’Brien, executive director at Unite Our States. “But it’s based on whether he can raise the money and whether he can gain the support.”

Linguists might call this a performative statement with an asterisk.

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