Proper Use of Campaign Funds and Resources
Below is a condensed version of this topic. For complete guidance please refer to the House Ethics Manual, Chapter 4 on campaign activity.
- Use for Bona Fide Campaign or Political Purposes
- Charitable or Community Service Projects
- Payment of Certain Legal Expenses
- Payment of Certain Travel Expenses
- Payment of Certain Meal Expenses
- Receptions and Related Activities for Visiting Constituents
- Letters, Mailings, and Other Communications That Are Not Frankable in Content
- Letters, Mailings, and Events for House Leadership Elections
- Special Events for the Member's House or Campaign Staff
- Member Moving Expenses To or From Washington, DC
- Gift and Donations
- Other Permissible Uses of Campaign Funds
- No Personal Use of Campaign Funds or Resources, and the Related Verification Requirement
- Use of Campaign Funds or Resources for Official House Purposes
- Restrictions on Official Use of Campaign Funds
- Expenses of a Motor Vehicle That Is Used for Official House Travel
- Expenses of a Cell Phone or BlackBerry That Is Used for Official House Business
- Expenses of Official or Officially-Related Travel
- Expenses in Connection With Official House Events
- Gifts for Foreign Dignitaries
- Cautionary Points
- Activities That May Be Either "Official" or "Political" at the Member's Option
Campaign resources – campaign funds, as well as the goods and services acquired with campaign funds – are an entirely separate set of resources available to Members. This section addresses the rules to which House Members and their campaign staff are subject in their use of campaign resources.
Both the House Rules and the Federal Election Campaign Act (FECA) include provisions regulating the use of campaign funds and resources. The provisions of the House rules apply to any campaign funds under a Member’s control, including those for elections to state or local office, whereas the provisions of FECA apply only to campaign funds for federal office. A Member’s use of campaign funds for federal office is permissible only if it complies with the provisions of both the House Rules and FECA.
The major provision of the House rules on proper use of campaign funds is found in the House Code of Official Conduct, which is set forth in House Rule XXIII. House Rule XXIII, clause 6 provides as follows:
A Member, Delegate, or Resident Commissioner –
(a) shall keep his campaign funds separate from his personal funds;
(b) may not convert campaign funds to personal use in excess of an amount representing reimbursement for legitimate and verifiable campaign expenditures; and
(c) except as provided in clause 1(b) of rule XXIV, may not expend funds from his campaign account that are not attributable to bona fide campaign or political purposes.
In addition, use of campaign funds for official House purposes is limited by provisions of both the House rules and statutory law, including House Rule 24, clause 1 and 2 U.S.C. § 59e(d)(1). At the beginning of the 109th Congress, the House rules were amended to permit the use of funds from the principal campaign account to pay for certain, limited types of official expenses. The purpose of the amendment was to conform House rules to current law (see section 105, Pub. L. 108-83, 117 Stat. 1018 (2003)), and the amendment mirrored the Senate rules that took effect in 2002.48
Thus, briefly stated a Member of the House –
- May spend campaign funds for “bona fide campaign or political purposes” only (with limited exceptions described below);
- May not convert campaign funds or resources to personal use, and must be able to verify that campaign resources have not been so misused; and
- May not use campaign funds or resources for official House purposes, with limited exceptions.
The rules generally preclude personal or official use of not only campaign funds, but also certain equipment, goods, or services acquired with campaign funds – including, for example, equipment such as a fax machine or computer, and the services of paid campaign staff. However, as discussed later in this chapter, a Member may use campaign funds to pay for a cell phone or “personal digital assistant” and use such devices for official and campaign purposes.
In addition, reference is made to the provision of FECA on proper use of campaign funds (2 U.S.C. § 439a), and to the regulations and advisory opinions issued by the Federal Election Commission (FEC) on that subject. In 2002, through the Bipartisan Campaign Reform Act (Pub. L. 107-155, 116 Stat. 81) (“BCRA”) (also popularly referred to as “Shays-Meehan” or its predecessor measure “McCain-Feingold”), which became effective on November 6, 2002, Congress retained the ban on personal use of campaign funds and codified for the most part the FEC’s previously issued regulations on personal use. On December 13, 2002, the FEC published new regulations, which are found in 11 C.F.R. Part 113, retaining its pre-BCRA personal use regulations, with certain exceptions (discussed below).49
Members and staff should contact the FEC with questions regarding that agency’s rules. Two points on those rules that are particularly noteworthy.
First, in addition to consulting the FEC regulations on the matter of impermissible personal use of campaign funds, the FEC has issued numerous advisory opinions and they constitute an important body of law in this area.50
Second, while FECA allows the use of campaign funds to pay expenses incurred in connection with one’s duties as a federal officeholder, House rules, as noted above, only permit the use of campaign funds for certain limited purposes. Accordingly, House Members should not rely on FEC materials that refer to or are based on the FECA’s provision allowing the use of campaign funds to pay federal officeholder expenses51 However, as explained immediately below, because of the broad manner in which “political purposes” is defined for purposes of the House rules, particular uses of campaign funds that the FEC approves as federal officeholder expenses may be permissible under the House rules as “political” expenses.
In General. While House rules provide that campaign funds may be used for “bona fide campaign or political purposes” only, the rules do not include a definition of that term. The Ethics Committee has long advised that each Member has wide discretion to determine whether any particular expenditure would serve such purposes, provided that the Member does not convert campaign funds to personal or official uses.
Put another way, the rule is not interpreted “to limit the use of campaign funds strictly to a Member’s reelection campaign,” but instead is interpreted “broadly to encompass the traditional politically-related activities of Members of Congress."52 Thus,
if a Member determines, for example, that advertisements in publications of civic organizations, the mailing of holiday greetings to constituents, or travel to meetings with local party officials, would constitute a political expenditure, as so defined, or are otherwise politically-related, then he may use campaign funds for that purpose.53
Accordingly, a Member may use campaign funds to pay for activities that are not overtly political in nature – such as mailing birthday or holiday greetings to constituents – if (1) the Member determines that the activity serves a political purpose, and (2) the activity does not involve a use of campaign funds for any personal purpose. However, as detailed earlier in this chapter, Members and staff must bear in mind that no official House resources may be used in support of any campaign-funded activity. Thus, for example, holiday greeting cards that are purchased with campaign funds may not be addressed either in the congressional office or by congressional staff while on official time. The same applies to U.S. Capitol Historical Society calendars that are purchased with campaign funds.
Example 12. As noted in the text, a Member may use campaign funds to mail holiday greetings to his or her volunteers and contributors. However, a Member may not use campaign funds to send such greetings to family members or personal friends (other than those who are also volunteers or contributors), as to do so would constitute a personal use of campaign funds.
Examples of specific uses of campaign funds on which the Ethics Committee has received inquiries are set forth below. By and large, these activities may, under House rules, be paid for with campaign funds, provided that the Member determines that the activity would serve a bona fide political purpose and raises no concern about personal use.
When a Member wishes to use campaign funds for a purpose on which the Ethics Committee has taken a position but the Federal Election Commission (FEC) has not, the Member should consult with the FEC before proceeding.
Charitable or Community Service Projects. Campaign funds and resources may be used to establish or support a bona fide charitable or community service project in the Member’s district. On this point, Federal Election Commission (FEC) Advisory Opinion 1999-34 is instructive.54 In that opinion, the FEC approved a Member’s use of campaign funds to support a fundraising event for elementary schools in the Member’s district. Other participants in the event were local businesses, schools, PTAs, and volunteers. The Member’s campaign funds were to be used for printing and postage costs for promotional materials, as well as to match donations made by individuals dollar-for-dollar, up to a maximum donation by the campaign of $60,000.
One factor in the FEC’s decision was that no campaign activity on the Member’s behalf would occur at the event or in the promotion or other arrangements for the event. For example, no campaigning would occur at the event, whether by way of speeches, distribution of campaign material, or otherwise, and the campaign would not attempt to use any information on the event’s donors for campaign purposes. The opinion indicates that if such campaign activity were planned, then the donations for the event made by individuals and organizations might be deemed campaign contributions to the Member under the Federal Election Campaign Act (FECA), and hence subject to the limitations and prohibitions of FECA.
That Advisory Opinion addresses only the requirements of FECA on proper use of campaign funds, and it does not address the applicable provisions of the House rules. However, in the view of the Committee, a Member may properly determine that expenditures for the purposes and in the circumstances described in that opinion serve a bona fide political purpose and hence are permissible under House rules.55
Also relevant here are the facts that FECA generally allows Members to donate campaign funds to a charitable organization, i.e., an organization described in §170(c) of the Internal Revenue Code, and such donations are likewise permissible under the House Rules.56
Example 13. A Member wishes to establish a “Books for Kids” program in his district, in which donations of books for use in local libraries are solicited, and the donated books are collected and then made available to libraries. The program may be operated by campaign staff, and campaign funds may be used to pay program costs such as for printing. However, prior to soliciting for books, the Member must obtain the permission of the Committee to make the solicitation (see Chapter 10 for a discussion of the restrictions and limitations on solicitations). In addition, the program must be conducted in compliance with FEC requirements, and no official House resources may be used in furtherance of the program.
In Advisory Opinion 2000-37, the FEC advised a House Member that he could use campaign funds to purchase replica “Liberty Medals” from a private company and award them to veterans in his district who had participated in the D-Day landings in France during World War II. The FEC characterized this undertaking by the Member as “a form of community service.” Significantly, the FEC characterized the cost of the particular medals (about $13 to $17 each) as “relatively low,” and went on to caution that the undertaking would be problematic under FEC rules if it entailed the use of campaign funds to confer a “significant personal benefit” upon the recipient veterans.
Payment of Certain Legal Expenses. The Ethics Committee has determined that it is generally permissible under House Rules for a Member to use campaign funds to defend legal actions arising out of his or her campaign, election, or the performance of official duties. The basis of this determination is that the protection of a Member’s presumption of innocence in such actions is a valid political purpose. Use of campaign funds to pay the legal expenses incurred in other kinds of legal actions may also be permissible. However, campaign funds may not be used when the action is primarily personal in nature, such as a matrimonial action, or could result in a direct personal benefit for the Member.
Before using campaign funds to pay any legal expenses, a Member should consult with the Ethics Committee to ensure that the legal services are ones that the Member may properly pay with campaign funds. A Member should also consult with the Federal Election Commission (FEC) before using campaign funds for this purpose. In this regard, under the FEC regulations on proper use of campaign funds, payment of legal expenses is among the uses for which the FEC makes determinations on impermissible personal use on a case-by-case basis.57 However, the FEC has issued a number of Advisory Opinions on use of campaign funds to pay legal expenses, and an understanding of the approach that the FEC takes on this subject can be obtained through a review of those opinions.58
In addition (or alternatively), a Member, officer, or employee may choose to set up a “legal expense fund,” independent of any campaign fund, for the purpose of paying the expenses of certain legal actions. The requirements for the establishment of a legal expense fund are described in Chapter 2 on gifts.
In Advisory Opinion 2000-40, the FEC advised that House Members could donate campaign funds to a legal expense fund that had been established by another House Member. However, one of the specific bases of the FEC’s decision was the nature of the litigation for which the legal expense fund had been established, and thus the opinion should not be read to grant a blanket approval of the donation of campaign funds to any Member legal expense fund. Any Member considering donating campaign funds to a legal expense fund should consult with both the FEC and the Ethics Committee.
Payment of Certain Travel Expenses. Under House Rules, campaign funds may be used to pay travel expenses when the primary purpose of the trip is activity that serves a bona fide campaign or political purpose, provided that the outlays are limited to the expenses that are necessarily incurred in engaging in that activity. Thus, quite clearly, campaign funds may be used to pay the expenses of a trip the primary purpose of which is to attend a campaign or political event, or to engage in other campaign activity. The general prohibition on the use of campaign funds for personal travel is discussed in the next section of this chapter. The use of campaign funds for official travel is also discussed below.
Notwithstanding the general permissibility of using campaign funds for campaign travel, an amendment to the House Rules enacted during the 110th Congress59 generally prohibits House Members from using campaign funds (as well as official funds and personal funds) for travel on a non-commercial aircraft. See House Rule XXIII, clause 15. The prohibition applies to travel on an aircraft unless one of the exceptions to the rule applies, including one that permits the use of campaign funds for a flight when “the aircraft is operated by an air carrier or commercial operator certificated by the Federal Aviation Administration and the flight is required to be conducted under air carrier safety rules.” In other words, campaign funds generally may be used only for commercially scheduled flights and flights provided by a commercial charter service, and may not be used for travel on corporate or other privately-operated aircraft. This prohibition applies to the use of funds from any campaign committee, including funds from a political action committee. Further guidance on the use of non-commercial aircraft is found in the Chapter 3 on travel.
There are circumstances in which campaign funds may properly be used to pay travel expenses of not only a Member, but also his or her immediate family members. For example, when the primary purpose of a trip taken by the spouse of a Member is to accompany the Member at a political event – such as one of the annual party fundraising dinners in Washington – campaign funds may be used to pay the spouse’s travel expenses.
Campaign funds may also be used to pay spouse travel expenses when the primary purpose of the trip is to accompany the Member at certain non-political events that the Member attends in his or her capacity as a Member. For example, the Ethics Committee approved the use of campaign funds to pay the travel expenses of spouses and minor children of Members in attending the bipartisan congressional retreats in Hershey, Pennsylvania, and in other locations. The FEC also approved the use of campaign funds to pay the Hershey travel expenses in a 1997 advisory opinion.60
In several other advisory opinions as well, the FEC approved the use of campaign funds to pay travel and related expenses of a Member’s spouse and minor children.61 Another FEC advisory opinion approves the use of campaign funds to pay for child care expenses incurred as a result of a need for the Member’s wife to accompany him to certain campaign-related events.62 However, the approvals granted in all of those opinions were based on the specific circumstances presented in the underlying advisory opinion request, and thus a Member should not rely on any of those opinions without first carefully reviewing them. Another FEC advisory opinion, which is discussed in footnote 55 above, addresses the payment of travel expenses of consultants to attend a seminar sponsored by a Member, and another (1996-20) approves the use of campaign funds to pay the travel expenses of a Member’s staff member to attend a national party convention.
The Ethics Committee has determined that a Member may, under House Rules, use campaign funds to pay the Member’s travel expenses to attend the funeral of a retired Member, or a colleague’s immediate family member.63 (Member travel to the funeral of a Member who dies while in office is generally arranged by the House.)
Payment of Certain Meal Expenses. Campaign funds may be used to pay for a meal in a number of circumstances, including, for example, a meal that constitutes a bona fide campaign fund-raising event, and a meal incident to a bona fide meeting on campaign business. Campaign funds may also be used to pay the meal expenses incurred when a Member or campaign worker is traveling on campaign business. Campaign funds may also be used to pay meal expenses when a Member has a social meal with constituents (other than personal friends or relatives of the Member) who are visiting Washington.
Outlays for meal expenses can, in certain circumstances, raise questions of impermissible personal use of campaign funds. The applicability of the prohibition against personal use of campaign funds to the payment of such expenses is addressed in Chapter 4 of the House Ethics Manual.
Receptions and Related Activities for Visiting Constituents. Occasionally when a group of constituents visits Washington, whether to tour or to lobby on legislation, the Member wishes to hold a reception or similar event for the participants.
Under rules of the Committee on House Administration, official Member and committee funds may be used to pay for food and beverages only when those expenses are incidental to an “official” meeting that includes individuals who are not House Members or staff, such as a meeting with constituents to discuss a legislative issue. Official House funds may not be used to pay food or beverage expenses related to social activities or social events, including the receptions held by Members in connection with their swearing-in, or on Inauguration Day. However, Members may use their campaign funds to pay the costs of such events.
A separate question is whether events of this nature, when paid for with campaign funds, may be held in a House room or office. Prior to the end of the 105th Congress, the policy of the Ethics Committee was that with only one exception, campaign-funded events may not take place in House rooms or offices. That exception was for the receptions held in honor of an individual’s swearing-in as a Member of Congress.
However, at the end of the 105th Congress, the Ethics Committee changed the policy so as to allow Members to use campaign funds to pay not only for swearing-in receptions held in a House room or office, but also for other events that are social in nature, including Inauguration Day receptions, and social events with constituents. Members and staff should bear in mind, however, that as stated above, House rooms and offices are not to be used for any events that are political in nature, such as a meeting on campaign business, or a reception for the contributors to one’s campaign. This is so even if monies other than campaign funds are used to pay the event’s costs, or there is no cost to the event.
Letters, Mailings, and Other Communications That Are Not Frankable in Content. At times Members wish to send letters or mailings, or make other communications, that are not frankable in content under the House Franking Regulations, and hence may not be created or sent using official House resources. Examples of such communications include messages to constituents that are not official in nature, such as birthday greetings, holiday greetings, and letters of condolence. In addition, while letters of congratulations for a public distinction are frankable, other letters of congratulation, such as for years of service at a business, or retirement, are not. Under House rules, a Member may use campaign funds and resources to create and send cards, letters, and certificates of these types to constituents.
However, such materials may not be produced in or sent from any House office, and may not be produced or sent using any other House resource, including office equipment or staff while on official time.
Example 14. Congressman A wishes to create a “Congressman A Award of Merit” certificate that he will present to constituents who perform meritorious acts or services. The certificates may be printed with campaign funds, but their content must comply with the same restrictions that apply to campaign letterhead (see discussion below on “Laws and Rules on Campaign Letterhead”). In addition, official House resources may not be used to promote the certificates, or in connection with their presentation.
Occasionally Members wish to send a letter or mailing endorsing a particular candidate for elective office, or commenting on a labor union organizing campaign or some other kind of labor dispute in their district. As a general matter, campaign funds and resources may likewise be used to create and send letters of this type. However, the letterhead used on such mailings should comply with the guidance on campaign letterhead found near the end of this chapter and may not resemble official letterhead.
Letters, Mailings, and Events for House Leadership Elections. As a general matter, a Member may use campaign funds to pay for activities in furtherance of a campaign for one of the House leadership offices. For example, a Member may use campaign funds to pay for a reception to promote one’s candidacy for one of those offices, and generally such an event may be held in a House room or office. Similarly, a Member may use campaign funds or resources to send a mailing regarding a leadership race.
A Member wishing to use any official House resource in furtherance of a campaign for a House leadership office – such as official stationery, the Inside Mail, or official staff time – should consult with the Committee on House Administration or the Franking Commission, as well as with the Standards Committee, on the extent to which those resources may be used for this purpose. However, when a particular activity related to a leadership race is supported with campaign resources, no official House resources may be devoted to that activity except to the extent noted above.
Example 15. A Member who is sending a mailing on a leadership race decides to pay the printing and mailing expenses with campaign funds. No official staff time or any other House resources may be used in furtherance of the mailing.
Special Events for the Member’s House or Campaign Staff. Under House rules, campaign funds may be used to pay the costs of special events for the Member’s House or campaign staff that are social in nature. Examples would include a holiday lunch or a farewell party for a departing staff member. A Member may also use campaign funds to pay for food and beverages for staff in other unusual circumstances, such as when the House is in session late or on a weekend. However, the use of campaign funds to pay for food or beverages for staff in other than special or unusual circumstances may constitute an impermissible use of funds for personal purposes.
Member Moving Expenses To or From Washington, DC. Both the Ethics Committee and the Federal Election Commission (FEC) have long advised that a newly elected Member may use campaign funds to pay the expenses incurred in moving to Washington, D.C.64 Such expenses are deemed to be campaign-related in that they are a direct result of winning an election.
In addition, in 1996 the FEC advised a departing House Member that he could use campaign funds to pay the expenses of moving both his congressional office furnishings and his personal household furnishings and effects back to his home state.65 The Ethics Committee has similarly advised that House Rules allow a departing Member to use campaign funds for this purpose. It should be noted, however, that the Committee’s advice on this matter is applicable only to the extent that such moving expenses are paid prior to the time that the Member leaves office, at which time the Committee loses jurisdiction over the Member.
As a related matter, FEC regulations provide that campaign funds may be used to defray the costs of winding down the office of a former federal officeholder for a period of six months after he or she leaves office. 11 C.F.R. § 113.2(a)(2).
Gifts and Donations. The Federal Election Commission (FEC) regulations on use of campaign funds provide that campaign funds may be used for “[g]ifts of nominal value and donations of a nominal amount made on a special occasion such as a holiday, graduation, marriage, retirement, or death.”66 Such gifts may include the relatively inexpensive House or Capitol souvenir items sold by the House gift store or the U.S. Capitol Historical Society, and thus a Member may use campaign funds to purchase such nominal-value gifts for the Member’s supporters or contributors. Use of campaign funds for a gift or donation is permissible only if the outlay serves a bona fide campaign or political purpose, and in this regard, the regulation specifies that a Member may not use campaign funds to make a gift or donation to a family member. In addition, as noted below in the section of this chapter on the use of campaign funds for official purposes, campaign funds may also be used to purchase a gift for visiting foreign dignitaries.
Other Permissible Uses of Campaign Funds. The Federal Election Campaign Act (FECA) generally allows Members to donate campaign funds to any entity of the kinds described in § 170(c) of the Internal Revenue Code – including a charitable or educational organization, or a governmental entity – provided that there is no conversion to personal use through the donation. In one advisory opinion, the Federal Election Commission (FEC) concluded that committee campaign funds, and funds from a nonconnected multicandidate committee, could be used for a portrait of a committee chairman to be donated to the House of Representatives for display, because the House of Representatives is an organization qualified under § 170(c).67 FECA also allows the transfer of campaign funds “without limitation to any national, State, or local committee of any political party.” Thus if otherwise lawful, campaign funds may be transferred to another candidate, or invested for use in a future political campaign, provided, again, that there is no conversion of funds to personal use. Campaign funds may also be used for certain funeral expenses.
House Rules. The key provision of the House rules barring use of campaign funds for personal purposes is House Rule XXIII, clause 6(b) which provides that a Member may not convert campaign funds to personal use in excess of an amount representing reimbursement for legitimate and verifiable campaign expenditures. [Emphasis added.]
Two other provisions are pertinent here as well. First, House Rule XXIII, clause 6(a) provides that each Member “shall keep his campaign funds separate from his personal funds.” Second, House Rule XXIII, clause 7 provides that a Member “shall treat as campaign contributions all proceeds from testimonial dinners or other fund-raising events.”
In addition, the provision of the rule prohibiting the use of campaign funds for personal purposes is, of course, directly related to another provision of the rule, discussed above, requiring the use of those funds for bona fide campaign or political purposes. The Ethics Committee has taken the position that Members, in making expenditures of their campaign funds, must observe these provisions strictly:
[A] bona fide campaign purpose is not established merely because the use of campaign money might result in a campaign benefit as an incident to benefits personally realized by the recipient of such funds . . . .68
The Committee has explained its reasons for taking this position in the following manner:
[T]he Committee believes that any other interpretation . . . would open the door to a potentially wide range of abuse and could result in situations where campaign moneys were expended for personal enjoyment, entertainment, or economic well-being of an individual without any clear nexus that the funds so expended achieved any political benefit . . . .69
The rule by its terms requires that each campaign outlay made by a Member be not only “legitimate,” but also capable of being verified as such. This requirement that the proper purpose of each outlay be “verifiable” is a common-sense requirement. With the huge number of outlays that Members’ campaigns typically make, often on a nearly continuous basis, the propriety of particular outlays may not be subject to review for months or years after the fact, when recollections as to the circumstances or specific purposes of an outlay may well have faded. Absent a requirement for verification, the prohibition against converting campaign funds to personal use would be nullified in substantial part. Furthermore, the verification requirement should serve to cause Members and their campaign staffs to exercise caution in spending campaign funds, and to ensure that no outlay is for an impermissible personal purpose.
Members and their campaign staffs should bear in mind that the verification requirement imposed by the House rules is separate from, and in addition to, whatever recordkeeping requirements are imposed by the Federal Election Commission on federal candidates generally (or, with regard to Members who are candidates for a state or local office, the requirements imposed by applicable state or local law).
Application of the House Rules. The Ethics Committee has found that Members violated the House rules on proper use of campaign funds in several disciplinary cases. One case involved, among other things, transfers from the Member’s campaign account that were made to repay personal loans of the Member and to cover outstanding obligations against his personal checking account.72 That case resulted in a censure of the Member by the House.73
The rule’s verification requirement was implicated in an Ethics Committee disciplinary case that was completed in the 106th Congress.74 In that case the Committee determined that a Member had, through his campaign committee, engaged in significant misconduct by failing to keep records adequate to verify the legitimacy of the expenditures that had been made by his campaign for meals, including numerous meals in the Washington, D.C. area, and for private airplane travel, particularly between Washington and the Member’s district.75 According to the reports that his committee had filed with the FEC, the expenditures for those purposes were extraordinarily high in number as well as dollar amount,76 but the Investigative Subcommittee found that the campaign committee had not made “even the most minimal effort to document or verify that the expenditures were related to legitimate campaign activity.”77
Impermissible personal use of campaign funds can arise in a variety of circumstances.
Notwithstanding the variety of circumstances in which impermissible personal use of campaign funds can arise, questions in this area have arisen most frequently regarding certain kinds of campaign outlays, specifically –
- Borrowing of campaign funds;
- Expenditures for travel;
- Expenditures for meals; and
- Expenditures for the purchase of goods or services, or the rental of property, from the Member or a member of his or her family.
It is now well established that borrowing of money from one’s campaign is a serious violation of the House Rules. As to outlays for travel or meals – as well as outlays for the acquisition of goods or services from themselves or their family members – Members must exercise great care, because such outlays by their nature raise a concern of personal use. Records should be maintained with regard to these kinds of outlays.
Example 16. A book written by a Member on his legislative agenda has been published. The Member’s campaign may not purchase copies of the book to give as gifts to contributors if the Member would receive royalties or any other personal benefit from the campaign’s purchase of those copies.78
Borrowing Campaign Funds Is Impermissible. The Committee feels that there is no circumstance in which a Member could borrow from his campaign and satisfy the requirement that the use of the funds would exclusively and solely benefit the campaign. Therefore, the Committee takes the firm position that a Member may not borrow funds from his campaign. The act of borrowing shall be construed as a violation of [current House Rule XXIII, clause 6], which requires that all campaign expenditures must be for a bona fide campaign expense.84
Expenditures for Travel. Campaign funds may be used to pay airfare or similar transportation expenses when the “primary purpose” of the trip is campaign or political in nature. Campaign funds may also be used for certain official or officially-connected travel. However, when the primary purpose of a trip is personal in nature, the airfare of that trip may not be paid with campaign funds, and must be paid with personal funds.90 While each Member has the responsibility to determine the “primary purpose” of any trip the Member takes, that determination must be made in a reasonable manner, taking into account all of the activities in which the Member intends to engage during the course of the trip.91
Example 17. A Member takes his family on a post-election vacation trip. Even though the trip is made so that the family can rest after the campaign, campaign funds may not be used to pay any of the trip expenses.
Example 18. A Member is taking a one-week trip that has a recreational purpose, except that during the trip, she will attend a party fund-raising dinner. Campaign funds may not be used to pay the airfare for the trip, and may be used solely to pay the additional meal or lodging expenses (if any) that the Member necessarily incurs in attending that dinner.
A Member’s campaign must be able to verify that there was a proper campaign purpose for any trip that is paid for with campaign funds. To this end, the Ethics Committee strongly advises that campaign committees maintain records that specify the politically related activities in which the Member (or other trip participants) engaged during each campaign-funded trip (for example, “attended party meeting at [date/time], attended reception for campaign donors at [date/time]”). When campaign outlays for travel are frequent and extensive, the need to maintain specific, written records is paramount.92
Members and their campaign staffs should also refer to the provisions of the Federal Election Commission (FEC) “personal use” regulations regarding use of campaign funds for travel, and should consult with the FEC as well when a proposed outlay for travel expenses may raise a concern of personal use. The FEC regulations are briefly noted later in this chapter, and under them, payment of travel expenses is one of the uses for which the FEC makes determinations on impermissible personal use on a case-by-case basis. A number of FEC advisory opinions on the permissibility of using campaign funds to pay travel expenses in various circumstances are noted in the preceding section of this chapter.
Expenditures for Meals. Campaign funds may be used to pay meal expenses. However, use of campaign funds to pay for any meal when the only individuals present are a Member and the Member’s personal friends or relatives inherently raises concerns of conversion of campaign funds to personal use. The only circumstance in which payment for such a meal with campaign funds may be permissible is if the other attendees actively work in the Member’s campaign, and if the meal is merely incident to a meeting having a clear, specific agenda of campaign business.
In order to be able to verify that there was a proper campaign purpose for meal outlays, the Ethics Committee strongly advises that campaign committees maintain records that note both the individuals who were present at each meal, and the specific campaign or political purpose served by the outlay. When the attendees include only friends or relatives, and the above-stated requirements for campaign payment for such a meal are satisfied, the maintenance of specific, written records is essential. In these circumstances, the records should specifically describe the campaign agenda of the meal. As with campaign outlays for travel, when the outlays for meals are frequent and extensive, the need to maintain specific, written records is paramount.93
Purchase or Other Acquisition From the Member or a Member of His or Her Family. At times a Member (or a member of his or her family) has office space or other property that the person wishes to lease to the Member’s campaign. Similarly, at times a family member of a Member wishes to sell certain goods or services to the Member’s campaign.
Such a transaction is permissible under the House Rules only if (1) there is a bona fide campaign need for the goods, services, or space, and (2) the campaign does not pay more than fair market value in the transaction. Whenever a Member’s campaign is considering entering into a transaction with either the Member or one of his or her family members, it is advisable for the Member to seek a written advisory opinion on the transaction from the Standards Committee.
If a Member’s campaign does enter into such a transaction with the Member or a member of his or her family, the campaign’s records must include information that establishes both the campaign’s need for and actual use of the particular goods, services or space, and the efforts made to establish fair market value for the transaction.
A Member and the Member’s campaign staff should also review the Federal Election Commission (FEC) regulations on campaign transactions with a candidate or a family member of the candidate before entering into any such transaction.97 The FEC regulations also essentially preclude a Member’s campaign from paying for use of any space in the personal residence of the Member or a member of his or her family. The rules issued by the FEC that define impermissible personal use of campaign funds are addressed generally in the following section.
The FEC Personal Use Regulations. The Federal Election Campaign Act (FECA), as amended in 2002 by BCRA, provides that a contribution or donation accepted by a candidate or the holder of a federal office may not be “converted by any person to any personal use.” 2 U.S.C. § 439a(b)(1). Congress codified for the most part the FEC’s previously issued regulations on personal use and retained the ban on personal use of campaign funds. Since BCRA’s passage, the FEC has published new regulations that, like their predecessor regulations, both (1) provide a general definition of the term “personal use” and (2) determine that certain uses of campaign funds constitute personal use and hence are prohibited.
The general definition in the regulations provides that an impermissible “personal use” of campaign funds is use to pay an expense of any person that would be incurred even in the absence of the candidacy for office:
Personal use means any use of funds in a campaign account of a present or former candidate to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign . . . . [11 C.F.R. § 113.1(g).]
Among the particular uses of campaign funds that are specified in the FEC regulations as constituting an impermissible personal use are payments for the following:
- Household food items or supplies, or clothing;
- Mortgage, rent or utility payments for any part of any personal residence of the candidate or a family member;
- Admission to a sporting event, concert, theater or other form of entertainment, unless part of a specific campaign activity;
- Dues, fees or gratuities at a country club, health club, recreational facility or other non-political organization, unless part of the costs of a specific fundraising event; and
- Tuition payments, other than for the training of campaign staff.98
11 C.F.R. § 113.1(g)(1)(i). In addition, payments to the candidate or to a member of the candidate’s family for real or personal property owned by any of those individuals, or for bona fide services to the campaign, constitute impermissible personal use of campaign funds to the extent the payments are in an amount that exceeds fair market value. Id., § 113.1(g)(1)(i)(E)(2), (H).
The donation of campaign funds to charitable and similar organizations is generally permissible under FECA. However, the FEC personal use regulations prohibit a donation to such an organization if the Member making the donation “receives compensation from the organization before the organization has expended the entire amount donated for purposes unrelated to his or her personal benefit.” Id. § 113.1(g)(2).
As to other possible uses of campaign funds – including for meal expenses, travel expenses, vehicle expenses, and legal expenses – the FEC regulations provide that the Commission will make a determination as to personal use on a “case by case basis.” Id. § 113.1(g)(1)(ii). The regulations also address two “mixed use” situations:
- Campaign-funded travel that includes both campaign-related activities and personal activities; and
- Use of a campaign vehicle for personal purposes in an amount that is more than de minimis.
In both of those situations, the person(s) benefiting from the personal use must reimburse the campaign in an appropriate amount within 30 days. Id. § 113.1(g)(1)(ii)(C), (D). (Regarding use of a campaign vehicle for non-campaign purposes, see below.)
Any questions on these rules should be directed to the FEC. In addition, as noted above, the FEC will provide a written advisory opinion in response to a specific, written advisory opinion request on an activity that the requesting person is undertaking or plans to undertake. 11 C.F.R. pt. 112. Both advisory opinion requests to the FEC and the opinions themselves are matters of public record.
In summary, under House rules, except for certain permitted official uses discussed in the following section, campaign funds are to be used for bona fide campaign or political purposes only. Campaign funds are not to be used to enhance a Member’s lifestyle, or to pay a Member’s personal obligations. Members have wide discretion in determining what constitutes a bona fide campaign or political purpose to which campaign funds and resources may be devoted, but Members have no discretion whatsoever to convert campaign funds to personal use. Furthermore, House rules require that Members be able to verify that campaign funds have not been used for personal purposes.
In addition to prohibiting the use of campaign funds and resources for personal purposes, House rules generally restrict their use for official House purposes. As discussed below, the use of campaign funds is specifically prohibited for certain types of official expenses. However, federal law and House rules permit the use of campaign funds in certain circumstances for other official House purposes, which are detailed below. In addition, there are certain activities that a Member may, at his or her discretion, designate as either official or political. When the Member designates an activity as political, the Member may, subject to certain requirements, pay for the activity with campaign funds, but may not use any official funds. When the Member designates an activity as official, the Member may support the event with campaign funds subject to the limitations below.
Restrictions on Official Use of Campaign Funds. Since 1977 the House rules have prohibited Members from maintaining an “unofficial office account,” or having such an account maintained for their use. This prohibition is now set forth in House Rule XXIV, clause 1. The purpose of the 1977 amendments was to create a “wall” between campaign funds and official allowances, with “campaign funds used only for politically related expenses on one side, and official allowances used only for official purposes on the other.”99 The prohibition against using campaign funds for official purposes was enacted into statutory law in 1990, and is found at 2 U.S.C. § 59e(d).
In 2003, § 59e(d) was amended to narrow the prohibition on the use of campaign funds for official purposes to certain categories of expenses. Section 59e(d) now provides that no Member of the House “may maintain or use, directly or indirectly, an unofficial office account or defray official expenses for franked mail, employee salaries, office space, furniture, or equipment and any associated information technology services (excluding handheld communication devices)” from –
(1) funds received from a political committee or derived from a contribution or expenditure (as such terms are defined in [the Federal Election Campaign Act]);
(2) funds received as reimbursement for expenses incurred by the Senator or Member in connection with personal services provided by the Senator or Member to the person making the reimbursement; or
(3) any other funds that are not specifically appropriated for official expenses. [Emphasis added.]
Clause 1 of House Rule XXIV was amended at the beginning of the 109th Congress to conform to current law. The effect of these changes, as described more fully below, was to allow the use of campaign funds for official purposes in certain circumstances to eliminate some inconveniences to Members under the previous rules. The following is a description of the congressional expenses that may be paid with funds of the Member’s principal campaign committee.
Expenses of a Motor Vehicle That Is Used for Official House Travel. It is permissible for a Member to lease or purchase a motor vehicle with campaign funds and to use that vehicle on an unlimited basis for travel for both campaign and official House purposes. Campaign funds may also be used to pay the expenses incurred in operating the vehicle, such as insurance, maintenance and repair, registration fees, and any property tax.
However, when a vehicle that is paid for with campaign funds is used for personal purposes – i.e., for driving to and from one’s official or campaign office – it is necessary to reimburse the Member’s campaign committee in an appropriate amount with personal funds. Members should consult with the Federal Election Commission (FEC) on how the amount of reimbursement should be determined. FEC regulations provide that reimbursement should be made within 30 days of the personal use, and thus it appears that reimbursement for regular personal use must be made on a monthly basis.
Example 19. A Member has three events scheduled in his district in one day. The first and last are political events, and the second is an official event. He may use the car leased by his campaign to travel to all three events.
Example 20. A Member wishes to use a vehicle leased by the campaign for regular commuting – i.e., for driving to or from the Member’s official or campaign office. Such use would be a permissible use for which reimbursement must be made from the Member’s personal funds.
Expenses of a Cell Phone or BlackBerry That Is Used for Official House Business. It is permissible for a Member to acquire a “handheld communications device” (e.g., a cell phone, a BlackBerry, or a combination cell phone/BlackBerry device, and associated communications services) with campaign funds, and to use the device on an unlimited basis on both campaign matters and official House matters. Members should contact the Committee on House Administration for information on connecting any handheld communications device to the House infrastructure.
This does not change the general restrictions on engaging in campaign or political activity in House rooms or offices, or the rules that generally prohibit using congressional office resources for campaign or political purposes. In particular, Members and staff should be aware of the following:
- A Member or staff person may not use a campaign-funded communications device to download data or information residing in the House infrastructure (e.g., a correspondence management service (CMS) database, the global address book, or a Listserv database) and then use that data or information for campaign purposes;
- Even though a cellphone or BlackBerry is paid for with campaign funds, it may not be used to make or answer campaign-related calls, or to send or respond to e-mails on campaign matters, while the user is in a House room or office;
- Criminal law (18 U.S.C. § 607) prohibits soliciting campaign contributions in federal rooms and buildings and, thus, Members and staff are prohibited from using one of these devices to solicit a campaign contribution while in the Capitol, a House office building, or a district office; and
- Although it is permissible to use a campaign-funded BlackBerry to send or respond to campaign or political e-mails when the user is not in a House room or office, the use of one’s office desktop computer (including one’s “mail.house.gov” e-mail address) to send or receive such communications continues to be prohibited.
Expenses of Official or Officially-Related Travel. A Member may use campaign funds to pay official or officially-related travel expenses. This authority is especially useful for travel that is official in nature, but the expenses of which may not be payable from official allowances (including those for a congressional office job applicant, an unpaid congressional office intern while on official business, and a speaker or guest at an official House event). It is also permissible to use campaign funds for travel expenses associated with a proper officially-connected trip when the sponsor is not able to cover all of the expenses.
Expenses in Connection With Official House Events. In a Committee Advisory memoranda of May 8, 2002, the Committee announced a policy allowing Members to use funds of their principal campaign committee to pay for food and beverage expenses at official House events, such as town hall meetings, briefings, caucus events, conferences, and other events sponsored by their Member office, whether in their congressional district or on Capitol Hill. The amendment to House Rule XXIV in the 109th Congress affirmed this previous Committee guidance on food and beverage expenses, and also permits Members to pay certain other expenses of such an event with campaign funds, such as room rental, rental of a sound system, and as noted above, the travel expenses of a guest speaker or other participant.
Gifts for Foreign Dignitaries. It is permissible for a Member to use campaign funds to purchase a gift for a visiting foreign government official as a mark of courtesy.
Cautionary Points.Several points should be kept in mind in considering whether to use campaign funds to pay for congressional expenses:
- The only campaign funds that a Member may use to pay for congressional expenses are funds of his or her principal campaign committee – not the funds of a leadership PAC or a multicandidate committee.
- There has been no change in the rules insofar as they generally prohibit other private organizations or individuals from subsidizing any congressional office or activity, whether on a cash or an in-kind basis.
- Congressional Member Organizations (CMOs) are official House entities that have no independent funding, and campaign funds may not be used to provide funding for, or otherwise directly support such organizations (other than food and beverage expenses at meetings). However, Member or staff involvement in CMOs may be supported with the use of campaign funds, subject to the limitations above (e.g., a campaign-paid cell phone may be used to make CMO-related phone calls). Similarly, campaign funds may not be used to directly subsidize the expenses of a House committee.
- Neither a Member nor anyone working on his or her behalf may either solicit campaign contributions for the payment of congressional expenses or accept campaign contributions that are in any way earmarked for the payment of such expenses.
- While it appears that the use of campaign funds as described here is permissible under the Federal Election Campaign Act (FECA), Members should nevertheless consult with the FEC on any questions that arise under FECA, including any questions on how payment of any congressional expense is to be disclosed on the reports that a Member’s campaign committee files with the FEC.
Congressional Expenses That May Not Be Paid With Campaign Funds. House Rule XXIV sets forth five categories of congressional expenses that may not be paid using campaign funds. They are: office space, furniture, equipment and associated information technology services (except for handheld communication devices), mail or other communications, and compensation for services. As a general matter, expenses in these categories must be paid with official House funds under regulations issued by the Committee on House Administration. The first three of these categories are generally self-explanatory, while the other two require further explanation.
Use of campaign funds to pay any expenses of congressional mail is prohibited. While the prohibition against use of campaign funds clearly applies to payment of the expenses of franked mail, the rules also prohibit a Member from using campaign funds to pay the expenses of preparing or sending any non-franked mail from his or her congressional office. 100
As a general matter, the forms of congressional “communications” that may not be paid with campaign funds are those set out in the regulations issued by the Committee on House Administration on use of official allowances to pay for communications (e.g., advertisements of a town meeting or other House events, the congressional office website, official stationery, and official audio and video recordings and materials).
As noted above, the limitation on the use of campaign funds extends to goods and services that are acquired with campaign funds. In the context of communications, the Ethics Committee has long advised that no brochures or any other materials printed using campaign funds may include the address or telephone number of the congressional office.
Example 21. A Member’s office begins to receive a large amount of mail on a legislative issue that is before the House, and the Member wants the letters to be answered promptly. The Member may not refer any of the letters to his campaign staff for response. The only communications that a congressional office may refer to the campaign staff are those relating to the campaign.
With regard to websites, the Ethics Committee has advised as follows:
- Member’s campaign website may not include a link to the congressional office site; and
- A congressional office site may not be advertised on the Member’s campaign website or on materials issued by the Member’s campaign.
The rules issued by the Committee on House Administration regarding official Member and committee websites are summarized above. Those rules include prohibitions against those sites linking or referring to any site created or operated by a campaign or campaign-related entity.
A Member may not use campaign funds to pay any compensation for the performance of official duties or for services to his or her congressional office. Thus, for example, a Member may not use campaign funds to pay an individual to assist the Member in the performance of his or her official duties, even if the work was performed outside the congressional office.
Activities That May Be Either “Official” or “Political” at the Member’s Option. While Members are restricted in using campaign funds to pay official House expenses, there are a number of activities that may be either “official” or “political” at the Member’s option. The major examples are events sponsored by a Member on legislative or other governmental topics, such as town hall meetings and conferences; statements or releases issued by a Member on a legislative or other governmental issue; and activities relating to a race for a House leadership office. However, the Ethics Committee has stated:
[O]nce the Member makes his determination [on whether an activity is to be official or political], he is bound by it. A single event cannot, for purposes of the House rules, be treated as both political and official.
Conversely, if a Member designates an event (or any other activity) as political by using campaign funds for it, no official resources may then be used. This means that congressional staff should not make arrangements for such an event, invitations to it may not go out under the frank, and the congressional telephone number may not be designated for RSVPs.
Of course, in using official House funds or, alternatively, campaign funds, to pay the expenses of any such activity, a Member must comply with any requirements or restrictions imposed by, respectively, the Committee on House Administration and the Franking Commission, or the Federal Election Commission.
48 See H. Res. 5, 109th Cong., 1st Sess. (151 Cong. Rec. H13 (daily ed. Jan. 4, 2005)).
49 See 67 Fed. Reg. 76962 (Dec. 13, 2002).
50 But see 67 Fed. Reg. 76972 (noting that FEC Advisory Opinion 1999-1 (banning the use of campaign funds to pay candidate salaries) has been superseded by BCRA).
51 See, in this regard, House Comm. on Standards of Official Conduct, Advisory Opinion No. 6, which is reprinted in the appendices, for a further discussion.
52 House Select Comm. on Ethics, Final Report, H. Rep. 95-1837, 95th Cong., 2d Sess. 16 (1979).
54 Copies of this and all other FEC Advisory Opinions are available through the FEC’s website at www.fec.gov. The FEC issues written advisory opinions in response to specific written requests, and both the requests and the advisory opinions are publicly available. See 2 U.S.C. § 437f; 11 C.F.R. Part 112.
55 Another FEC Advisory Opinion, 1996-45, approves a Member’s use of campaign funds to pay the expenses of consultants to travel to her district for the purpose of leading a seminar that the Member was sponsoring on racial and ethnic relations. The proposed seminar was to be held after the election and was to include representatives of nonprofit organizations and city agencies in the Member’s district.
56 Final Report, H. Rep. 95-1837, supra note 45, at 16-17.
57 11 C.F.R. § 113.1(g)(1)(ii)(A).
58 See, e.g., FEC Advisory Opinions 2006-35, 2005-11, 2003-17, 2003-15, 1998-1, 1997-27, 1997-12, 1996-24, and 1995-23.
59 H. Res. 363, 110th Cong., 1st Sess. (May 2, 2007). This resolution amended in its entirety an earlier provision contained in H. Res. 6, 110th Cong. 1st Sess. (Jan. 4, 2007).
60 FEC Advisory Opinion 1997-2.
61E.g., FEC Advisory Opinions 2005-09 (travel expenses for minor children accompanying Senator and spouse from district to Washington when parents traveling to participate in function directly connected to Senator’s bona fide official responsibilities); 1996-34 (spouse travel to national party convention, and spouse and child travel to accompany the Member on a campaign trip through his district); 1996-19 (spouse and child travel to national party convention); 1995-47 (spouse travel to national party convention); and 1995-20 (child accompanying parents in travel between Washington and the Member’s district for campaign purposes).
62 FEC Advisory Opinion 1995-42.
63 The FEC has not issued a formal advisory opinion on this point and should be consulted before campaign funds are used for such a purpose.
64 Regarding the FEC, see Advisory Opinion 1980-138.
65 FEC Advisory Opinion 1996-14; see also Advisory Opinion 1996-44.
66 11 C.F.R. § 113.1(g)(4). Regarding the limitation to “nominal value” gifts, see FEC Advisory Opinion 2000-37.
67 FEC Advisory Opinion 2007-18.
68 House Comm. on Standards of Official Conduct, Investigation of Financial Transactions of Rep. James Weaver with His Campaign Organization, H. Rep. 99-933, 99th Cong., 2d Sess. 13 (1986) (emphasis in original).
70 E.g., House Comm. on Standards of Official Conduct, In the Matter of Rep. Richard H. Stallings, H. Rep. 100-382, 100th Cong., 1st Sess. 3-4 (1987); House Comm. on Standards of Official Conduct, In the Matter of Rep. Charles G. Rose III, H. Rep. 100-526, 100th Cong., 2d Sess. 23 (1988).
71 Report on H.R. 3660, 101st Cong., 1st Sess. (Comm. Print, Comm. on Rules 1989), reprinted in 135 Cong. Rec. 30740, 30751 (1989).
72 House Comm. on Standards of Official Conduct, In the Matter of Rep. Charles H. Wilson, H. Rep. 96-930, 96th Cong., 2d Sess. 5-6, 7-10 (1980).
73 In addition, in the 104th Congress an investigative subcommittee of the Ethics Committee adopted a Statement of Alleged Violation against a Member, two counts of which alleged a misuse of campaign resources, including the use of campaign funds to purchase appliances for the Member and to pay for cleaning of the Member’s personal residence. No further action was taken in the case, however, because as of the time the investigative subcommittee completed its work, the Member was about to depart the House. See H. Rep. 104-876, supra note 7.
74 H. Rep. 106-979, supra note 2.
75 Id. at 3G-3H.
76 Id. at 6-7, 64-79, 170-212.
77 Id. at 78.
78 Regarding purchase of a Member’s book by his or her campaign committee, see FEC Advisory Opinions 2006-18, 2004-18, and 2001-8.
84 H. Rep. 100-526, supra note 70, at 23.
90 See Chapter 3 on travel.
92 In this regard, see H. Rep. 106-979, supra n. 4, at 3G-3H, 6-7, 64-79, 170-212.
97 11 C.F.R. § 113.1(g)(1)(i)(E), (H); regarding the hiring of a Member’s relative as a consultant to the Member’s campaign committee, see FEC Advisory Opinion 2001-10.
98 However, in Advisory Opinion 1997-11, the FEC approved of a Member’s proposed use of campaign funds to cover the costs of a Spanish immersion class that she wished to take for the purpose of enabling her to better communicate with her constituents. The Member had represented that her district includes a large number of constituents who spoke little or no English.
99 House Comm’n on Admin. Review, Financial Ethics, H. Doc. 95-73, 95th Cong., 1st Sess. 17, 18 (1977).
100 In addition to the limitation in House Rule XXIV, clause 1, the use of campaign funds (or other non-appropriated funds) to pay official mailing expenses is specifically prohibited by certain other provisions of statutory law and the House Rules. One of these, 2 U.S.C. §59e(c), requires that official mail expenses be paid only from funds specifically appropriated for that purpose and precludes their supplementation by funds from any other source, public or private. Under other provisions, a mass mailing may not be sent under the frank unless the cost of preparing and printing the mailing are paid exclusively from appropriated funds. See 39 U.S.C. § 3210(f); House Rule XXIV, clause 6.