FEC considering rulemaking on use of campaign funds to pay for security measures

In light of recent events, the Federal Election Commission has been receiving inquiries about the use of campaign funds for security purposes.

The Commission is in the midst of a rulemaking on this topic, which is expected to be concluded in the coming months. The Commission wishes to take this opportunity to summarize the current state of Commission guidance.

Background

The Federal Election Campaign Act of 1971, as amended (the Act), prohibits contributions accepted by a candidate from being converted to "personal use” by any person. While the Act and Commission regulations provide a non-exhaustive list of expenses that, when paid using campaign funds, constitute per se conversion of those funds to personal use, the Commission determines on a case-by-case basis whether the use of campaign funds to pay expenses other than those listed would be prohibited.

In numerous advisory opinions, the Commission has permitted the use of campaign funds to pay for security measures for federal officeholders and candidates. These have included:

• Security installations, including camera systems, locks, window covers, and distress devices;
• Home security upgrades, including wiring, security lighting, doors, and gates;
• Professional security personnel; and
• Cybersecurity measures to protect home networks.

Additional details can be found in Advisory Opinions AO 2022-25 (Mike Crapo for U.S. Senate), AO 2022-17 (Warren Democrats, Inc.) AO 2022-02 (Steube), AO 2021-03 (NRSC and NRCC), AO 2020–06 (Escobar), AO 2017-07 (Sergeant at Arms), and AO 2011–17 (Giffords).

Proposed rule

On April 9, 2024, the Federal Election Commission published a Notice of Proposed Rulemaking (NPRM) in the Federal Register seeking public comment on a proposed rule to amend its regulations regarding the use of campaign funds to pay for security measures for federal candidates and officeholders. The Commission received numerous public comments and expects to finalize the amended regulations in the coming months.

The Commission’s current regulations at 11 CFR 113.1(g)(1) through (9) address the personal use of campaign funds. The proposed rule adds a new paragraph (g)(10) to address the use of campaign funds for security measures along with subparagraphs listing categories and examples of permissible security measures.

Consistent with prior Commission advisory opinions, the proposed rule would provide that the use of campaign funds to pay for the reasonable costs of security measures for a federal candidate or officeholder is not personal use as long as the payments are made for security measures that address ongoing dangers or threats that would not exist irrespective of the individual’s status or duties as a federal candidate or officeholder and would require that the disbursements be for the usual and normal charge for such goods and services.

Additionally, the proposed rule identifies several categories of permissible security measures: non-structural security devices; structural security devices; professional security personnel and services; and cybersecurity software, devices and services.