Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
January 26, 2007
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2006-35
Mr. William H. Kelley
Treasurer
Kolbe for Congress
P.O. Box 31568
Tucson, AZ 86751
Dear Mr. Kelley:
We are responding to your advisory opinion request on
behalf of Kolbe for Congress (the "Committee"), concerning
the application of the Federal Election Campaign Act of
1971, as amended (the "Act"), and Commission regulations to
the use of campaign funds to pay for certain legal expenses.
These legal expenses were incurred by Representative Kolbe
in connection with a recently completed inquiry by the House
Committee on Standards of Official Conduct (the "House
Ethics Committee"), an inquiry by the Department of Justice,
and in connection with related press inquiries.
The Commission concludes that these legal expenses are
for ordinary and necessary expenses incurred in connection
with duties of the individual as a holder of Federal office.
The Committee may use campaign funds to pay for legal
expenses incurred in responding to these inquiries and
related press inquiries.
Background
The facts presented in this advisory opinion are based
on your letters received on October 27, November 8, November
27, 2006, and January 16, 2007, and the attachments thereto.
The Committee is the principal campaign committee of
Representative Jim Kolbe of Arizona. Representative Kolbe
was elected to the House of Representatives in 1984 and
retired at the end of the 109th Congress in 2006. He served
on the House Committee on Appropriations and was also a
Member of the House Page Board from 1996 to 2001.
According to House Ethics Committee documents, 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."1
Your request represents that a former House Page contacted
Representative Kolbe's office after receiving unwanted
communications from Representative Mark Foley, and that
Representative Kolbe's office forwarded the House Page's
concerns to the appropriate authorities.
Similarly, according to your request, the Department of
Justice's preliminary inquiry concerns, in part, information
known to or obtained by Representative Kolbe and his staff
relating to the interaction between Representative Foley and
current or former House Pages. The preliminary inquiry also
concerns facts surrounding an official congressional trip to
the Grand Canyon attended by Representative Kolbe and two
former House Pages, among others.
Questions Presented
1. May the Committee use campaign funds to pay for legal
expenses incurred by Representative Kolbe in connection with
the inquiries by the House Ethics Committee and the
Department of Justice described in your request?
2. May the Committee use campaign funds to pay for legal
expenses incurred in responding to the press in connection
with the same inquiries?
Legal Analysis and Conclusions
Question 1. May the Committee use campaign funds to
pay for legal expenses incurred by Representative Kolbe in
connection with the inquiries by the House Ethics Committee
and the Department of Justice described in your request?
Yes, the Committee may use campaign funds to pay for
legal expenses incurred by Representative Kolbe in
connection with the inquiries by the House Ethics Committee
and the Department of Justice described in your request.
The Act identifies six permissible uses of
contributions accepted by a Federal candidate, including
"for ordinary and necessary expenses incurred in connection
with duties of the individual as a holder of Federal
office." See 2 U.S.C. 439a(a)(2); 11 CFR 113.2.
Here, your request concerns Representative Kolbe's
legal expenses incurred in responding to inquiries by the
House Ethics Committee and the Department of Justice. The
inquiry by the House Ethics Committee investigative
subcommittee concerns conduct of "House members, officers
and staff." Moreover, the investigative authority of the
House Ethics Committee is limited to "alleged violations of
the Code of Official Conduct or of any applicable rules,
laws, or regulations governing the performance of official
duties or the discharge of official responsibilities."2 The
Commission concludes therefore that Representative Kolbe's
legal expenses related to the House Ethics Committee inquiry
are ordinary and necessary expenses incurred in connection
with his duties as a Member of the House of Representatives.
The Department of Justice's preliminary inquiry
concerns information known to or obtained by Representative
Kolbe regarding the interaction between another Member of
Congress and current or former Pages. To the extent that
Representative Kolbe acquired information regarding these
interactions because of his status as a Federal
officeholder, the Commission concludes that his legal
expenses in responding to this Department of Justice inquiry
are ordinary and necessary expenses incurred in connection
with his duty as a House member.
Section 439a(b) provides that contributions accepted by
a candidate may not be converted to "personal use" by any
person. 2 U.S.C. 439a(b)(1); 11 CFR 113.2. Commission
regulations define "personal use" as "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 or duties as
a Federal officeholder." 11 CFR 113.1(g); see also 2 U.S.C.
439a(b)(2).
The Commission analyzes whether the payment of legal
fees and expenses constitutes personal use on a case-by-case
basis under 11 CFR 113.1(g)(1)(ii)(A), and has previously
concluded that legal fees and expenses incurred in legal
proceedings involving allegations concerning the candidate's
campaign activities or duties as a Federal officeholder
would not exist irrespective of the candidate's campaign or
duties as a Federal officeholder and therefore are not an
improper personal use of campaign funds. See Advisory
Opinions 2005-11 (Cunningham), 2003-17 (Treffinger), 1998-1
(Hilliard), 1997-12 (Costello), 1996-24 (Cooley), and 1995-
23 (Shays).
Thus, the Committee may use campaign funds for legal
expenses related to the inquiries by the House Ethics
Committee and the Department of Justice regarding
Representative Kolbe's role in the investigation of
Representative Foley's interactions with House Pages.
Additionally, your request states that the preliminary
inquiry by the Department of Justice concerns, in part,
Representative Kolbe's rafting trip to the Grand Canyon in
1996. You represent that Representative Kolbe "took the
trip under the auspices of his office in light of his
oversight role as a member of the House Appropriations
Interior Subcommittee."3 You also submit documents showing
that the trip was part of an official Congressional visit
with support for the trip provided by the National Park
Service and the Office of Public Affairs of the Grand Canyon
National Park. Accordingly, the Commission concludes that
Representative Kolbe's legal expenses in responding to the
inquiry into his trip to the Grand Canyon are ordinary and
necessary expenses incurred in connection with his duty as a
House member. 2 U.S.C. 439a(a)(2).
As with the inquiry into current and former House
pages, Representative Kolbe's legal expenses in responding
to this Department of Justice inquiry regarding the rafting
trip are ordinary and necessary expenses incurred in
connection with his duty as a House member and would not
exist irrespective of his duties as a Federal officeholder.
See
2 U.S.C. 439a(b)(2); see also 11 CFR 113.1(g)(1)(ii). Thus,
the Committee may use campaign funds for legal expenses
related to the inquiry by the Department of Justice
regarding Representative Kolbe's trip to the Grand Canyon.
The Commission notes that the details of the
preliminary inquiry by the Department of Justice are not
public at this time, and it is possible that the scope of
the inquiry could involve allegations not related to
Representative Kolbe's duties as a Federal officeholder.
Thus, the Committee may not use campaign funds to pay for
Representative Kolbe's legal expenses in the preliminary
inquiry regarding other allegations, if any, that do not
concern the candidate's campaign activities or duties as a
Federal officeholder. See Advisory Opinion 2005-11
(Cunningham).
Question 2. May the Committee use campaign funds to
pay for legal expenses incurred in responding to the press
in connection with the same inquiries?
Yes, the Committee may use campaign funds to pay for
legal expenses incurred in responding to the press in
connection with the inquiries by the House Ethics Committee
and the Department of Justice.
The Commission has previously determined that legal
expenses incurred to respond to the press regarding
allegations that concern the candidate's campaign activities
or duties as a Federal officeholder may be paid for with
campaign funds. See Advisory Opinions 1998-1 (Hilliard) and
1997-12 (Costello). Accordingly, the Commission concludes
that the Committee may use campaign funds to pay for the
legal expenses incurred in responding to the press regarding
the inquiries by the House Ethics Committee and the
Department of Justice into allegations that are related to
Representative Kolbe's duties as a Federal officeholder, as
discussed in response to question one above.
In accordance with 2 U.S.C. 432(c), the Committee must
maintain appropriate documentation of any disbursements made
to pay legal expenses incurred in connection with the former
inquiry by the House Ethics Committee and the preliminary
inquiry by the Department of Justice, including legal
expenses incurred in responding to the press. See also 11
CFR 102.9(b) and 104.11. In addition, the Committee must
report all funds disbursed for such legal expenses as
operating expenditures, with the purpose noted.
11 CFR 104.3(b)(2) and 104.3(b)(4)(i).
The Commission expresses no opinion regarding the
application of Federal tax law, other law, or the rules of
the House of Representatives to the proposed activities,
because those questions are not within the Commission's
jurisdiction.
This response constitutes an advisory opinion
concerning the application of the Act and Commission
regulations to the specific transaction or activity set
forth in your request. See 2 U.S.C. 437f. The Commission
emphasizes that, if there is a change in any of the facts or
assumptions presented, and such facts or assumptions are
material to a conclusion presented in this advisory opinion,
then the requestor may not rely on that conclusion as
support for its proposed activity.
Sincerely,
(signed)
Robert D. Lenhard
Chairman
Enclosures (Advisory Opinions 2005-11, 2003-17, 1998-1, 1997-
12, 1996-24, and
1995-23)
_______________________________
1 The House Ethics Committee issued its report while the
advisory opinion request was pending. See Investigation of
Allegations Related to Improper Conduct Involving Members
and Current or Former House Pages, 109th Cong., 2d Sess.
(Dec. 8, 2006).
2 Rule XI, Rules of the House of Representatives for the
109th Congress.
3 The Subcommittee on Interior, Environment, and Related
Agencies of the House Committee on Appropriations has
oversight jurisdiction of the Department of the Interior,
including the National Park Service.