Advisory Opinion 2006-35: legal fees paid with campaign funds

The authorized campaign committee of a former U.S. Representative may use campaign funds to pay legal expenses in connection with recent inquiries by the House Ethics Committee and the Department of Justice and resulting questions from the press. The use of campaign funds for those expenses does not constitute "personal use" because the inquiries would not exist irrespective of the individual's duties as a federal officeholder.

Background

Kolbe for Congress (the Committee) is the principal campaign committee of Representative Jim Kolbe, who retired from Congress in 2006. The House Ethics Committee established an investigative subcommittee that has jurisdiction to conduct a formal inquiry regarding "any conduct of House members, officers and staff related to information concerning improper conduct involving Members and current and former House Pages." A similar inquiry by the Department of Justice concerns, in part, information known to or obtained by Representative Kolbe and his staff relating to the interaction between a former House member and current or former House Pages. The Department of Justice inquiry also concerns an official congressional trip to the Grand Canyon attended by, among others, Representative Kolbe and two former House Pages.

Analysis

The Federal Election Campaign Act (the Act) allows federal officeholders to use campaign funds for "ordinary and necessary expenses incurred in connection with duties of the individual as a holder of Federal office." 2 U.S.C. 439a(a)(2); 11 CFR 113.2(a). However, the Act explicitly prohibits use of campaign funds for "personal use." 2 U.S.C. 439a(b)(1). Personal use includes the use of campaign funds to pay for expenses that would exist "irrespective of the candidate's campaign of duties as a Federal officeholder." 11 CFR 113.1(g) and 2 U.S.C. 439a(b)(2).

In previous advisory opinions, the Commission has examined on a case-by-case basis whether the payment of legal fees and expenses constitute personal use and has concluded that expenses incurred as a result of legal proceedings involving a candidate's campaign activities or duties as a federal officeholder would not exist irrespective of the candidate's campaign or capacity as a federal officeholder. Therefore, such expenses may be paid with campaign funds.

The Commission concluded that legal expenses incurred by Representative Kolbe that are related to the House Ethics Committee and Department of Justice inquiries are ordinary and necessary expenses incurred in connection with his duties as a federal officeholder that would not exist irrespective of his duties as a federal officeholder. Thus, Representative Kolbe's committee may pay for such expenses with campaign funds.

In addition to legal fees associated with the inquiries themselves, Representative Kolbe may also use campaign funds to pay for legal expenses incurred in responding to related press queries, as this is also tied to Representative Kolbe's duties as a federal officeholder.

The Committee must maintain appropriate documentation of any disbursements made to pay legal expenses relating to the inquiries and report them appropriately on FEC reports.

AO 2006-35; Date Issued: January 25, 2007; length: 7 pages.