AO 2009-20: Federal officeholder may use campaign funds to pay certain legal fees of current and former staff members
A federal officeholder may use campaign funds to pay legal fees and expenses incurred by current and former staff members in connection with a federal investigation of allegedly improper campaign contributions because the fees would not exist irrespective of the officeholder's campaign or duties as a federal officeholder. However, the use of campaign funds to pay for any such employee's representation in legal proceedings regarding allegations that are not related to the Congressman's campaign activity or duties as a federal officeholder would constitute an impermissible personal use of campaign funds.
Background
Representative Visclosky is the U.S. Representative from the First District of Indiana. Visclosky for Congress (the Committee) is Rep. Visclosky's principal campaign committee.
According to provided media reports, the FBI and federal prosecutors are investigating whether a lobbying firm, PMA Group, made improper political contributions to Rep. Visclosky and other members of the U.S. House of Representatives. Although many of the details of the federal investigation are not public at this time, media reports indicate that the investigation centers on more than $500,000 in alleged campaign contributions from PMA Group and its clients to three Congressman, including Rep. Visclosky. The media reports also indicate that Rep. Visclosky allegedly improperly earmarked appropriations for clients of PMA. As part of the ongoing federal investigation, Rep. Visclosky's former Chief of Staff has been served with a grand jury subpoena to produce documents.
Analysis
The Federal Election Campaign Act (the Act) identifies six categories of permissible uses of campaign funds, including otherwise authorized expenditures in connection with the candidate’s campaign for federal office, ordinary and necessary expenses incurred in connection with the duties of the individual as a holder of federal office and any other lawful purpose not prohibited by the Act. 2 U.S.C. §§439a(a), (b) and 11 CFR 113.2(a)-(e). The Act prohibits "personal use" of campaign contributions by any person. 2 U.S.C. §439a(b)(1) and 11 CFR 113.2(e). The Act specifies that conversion to personal use occurs when a contribution or amount is used to "fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign or individual's duties as a holder of Federal office." 2 U.S.C. §439a(b)(2); see also 11 CFR 113.1(g).
The Commission determined that the Committee may use campaign funds to pay legal fees and expenses incurred by Rep. Visclosky's current and former staff members in connection with a federal investigation into the alleged provision of illegal campaign contributions by PMA Group and its clients to the Committee, and Rep. Visclosky’s allegedly improper earmarking of appropriations for clients of PMA, as well as any other legal proceedings that involve the same allegations. Rep. Visclosky’s current and former staff members are involved in the federal investigation because of their current and former employment relationships with Rep. Visclosky in his capacity as a U.S. Congressman and a candidate.(1) Therefore, the Commission concluded that the current and former staff members' legal fees and expenses associated with the federal investigation would not exist irrespective of Rep. Visclosky's campaign or duties as a federal officeholder. The Committee may not, however, use campaign funds to pay legal fees or expenses regarding allegations unrelated to Rep. Visclosky's campaign or duties as a federal officeholder.
The Commission noted that, because many of the details of the federal investigation are not public at this time, it is possible that portions of the investigation could involve allegations not related to Rep. Visclosky’s campaign or his duties as a federal officeholder. The use of campaign funds to pay any such legal fees would be impermissible. See AOs 2009-10 and 2005-11. In accordance with the Act and Commission regulations, the Committee must maintain appropriate documentation of any disbursements made to pay legal expenses incurred in connection with the federal investigation or other legal proceedings. 11 CFR 102.9(b) and 104.11. The Committee must report all funds disbursed for such legal expenses as operating expenditures, noting the payee’s full name, address and a detailed description of the purpose of the payment. 11 CFR 104.3(b)(2) and (4).
AO 2009-20: Date issued: August 28, 2009; Length: 5 pages
FOOTNOTE:
1 In a previous advisory opinion, the Commission concluded that the allegations relate to Rep. Visclosky's campaign and duties as a federal officeholder because Rep. Visclosky allegedly received the contributions in question as part of his campaign and his alleged actions regarding the congressional appropriations process are directly related to his duties as a federal officeholder. See AO 2009-10.