Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
March 29, 1996
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1995-47
The Honorable Robert A. Underwood
United States House of Representatives
424 Cannon House Office Building
Washington, D.C. 20515-5301
Dear Mr. Underwood:
This responds to your letters dated November 7 and
December 14, 1995, as supplemented by your letter dated
March 12, 1996, requesting an advisory opinion concerning
application of the Federal Election Campaign Act of 1971, as
amended ("the Act"), and Commission regulations to the use
of campaign funds for travel expenses in connection with the
1996 Democratic National Convention.
You state that you will be "a designated super
delegate" to the Democratic National Convention which will
be held in Chicago on August 26-29, 1996. You plan to
attend the convention in this capacity, and your wife will
travel with you. You state that the travel to and from
the convention will not be part of a "mixed trip" elsewhere
or for other purposes that might require some sort of
allocation of travel expenses. You plan to travel to the
convention directly from Washington, D.C. and to return to
Washington, D.C. immediately after the convention.
You propose to use your campaign funds, that is, funds
of the Committee for Guam's Voice in Congress: Robert
Underwood ("the Committee"), for all of your travel
expenses, and those of your wife, in order to attend the
convention. You explain: "My attendance as a super delegate
at the convention is required in connection with my
ancillary duties as Member of Congress." In addition, you
state: "My wife will be accompanying me to campaign at the
convention."
You explain that, under Democratic Party rules, Members
of Congress qualify as unpledged delegates, commonly known
as "super delegates." The term "super delegate" includes
elected officials who, by virtue of their capacity as
elected officials, are entitled to the status of unpledged
delegate. Specifically, the Delegate Selection Rules for
the convention provide that all Democratic Members of the
House of Representatives shall be confirmed as unpledged
delegates from their respective states and shall be
recognized as part of their state's delegation. 1996
Delegate Selection Rules, Section 8.A(3).1 Super delegates
participate in the same ways as other delegates, voting on
the nominations for President and Vice President, on the
party platform, and on other matters which come before the
convention.
You state that, as an elected official with unpledged
delegate status, you will participate "in a manner which
includes both campaign-related and official functions." You
explain: "As a Member of Congress, I represent my party and
constituency on public policy and legislative matters, and
will bring that responsibility and perspective to bear on
platform deliberations." You also assert that the
convention "presents significant political opportunities and
demands related to my candidacy for re-election." Further,
you note that constituents expect a candidate to attend the
party's most significant event and that the convention
provides media, fundraising, and other contacts helpful to
your candidacy.
You state that your wife will accompany you to the
events scheduled throughout the convention week and will
participate in them with you. These include functions
related to your pending re-election campaign. When you
cannot attend a meeting or function due to a scheduling
conflict, your wife will attend in your place. You
represent that your wife will "generally assist" you in
your convention-related activities, including those helpful
to your candidacy.
Although your schedule for the convention is not yet
firmly set, there are categories of meetings and functions
that you and your wife are preparing to attend "to
accomplish these campaign related goals." These categories
are as follows:
(1) Delegation meetings, which involve maintaining contacts
with Guam delegates who are also prominent in the politics
of Guam and who, in some cases, will assist directly with
your campaign.
(2) Receptions to which you are invited, where you will be
in contact with individuals actively interested in
Democratic congressional politics. You will be able to
approach these individuals for contributions, fundraising
assistance, and other support for the campaign.
(3) Media events, including occasions for press interviews
during which you can communicate partisan messages helpful
to your campaign.
(4) Private meetings with Democratic Party activists who
may be approached for political and fundraising support for
your campaign.
Under the Act and Commission regulations, a candidate
and the candidate's committee have wide discretion in making
expenditures to influence the candidate's election, but may
not convert campaign funds to the personal use of the
candidate or any other person. 2 U.S.C. 431(9) and 439a;
11 CFR 113.1(g) and 113.2(d); see also Advisory Opinions
1995-46, 1995-42, and 1995-26. Commission regulations
provide guidance regarding what would be considered personal
use of campaign funds. Personal use is defined 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).
Commission regulations list a number of purposes that
would constitute personal use. 11 CFR 113.1(g)(1)(i).
Where a specific use is not listed as personal use, the
Commission makes a determination on a case-by-case basis.
11 CFR 113.1(g)(1)(ii).2
Travel expenses, including subsistence expenses incurred
during travel, are among those expenses to be analyzed on a
case-by-case basis. If such travel involves both personal
activities and campaign or officeholder related activities,
the incremental expenses that result from personal
activities are personal use unless the person benefiting
reimburses the campaign within thirty days for the amount of
those expenses. 11 CFR 113.1(g)(1)(ii)(C).3
Your description of your activities at the convention
indicates that, throughout the convention, you and your wife
will engage in activities that are in furtherance of your
campaign for re-election. At events and other meetings, you
will attempt to maintain contacts and goodwill with persons
who will support your campaign through fundraising
assistance and contributions. In addition, you will attempt
to communicate with constituents with respect to your
campaign. You consider your wife's attendance at these
events and meetings, alongside of you or in your place, to
be important, and you state that it will enhance your re-
election effort. The Commission concludes, therefore, that
the travel expenses for you and your wife in connection with
the convention are directly related to your campaign, and
Committee funds may be used for them. In making this
conclusion, the Commission is mindful of the inherently
political nature of the national nominating convention of a
political party. Its conclusion as to your general
description of the four types of activities in which you and
your wife will engage is made in the context of that event.4
The travel expenses of you and your wife should be
reported as an operating expenditure by the Committee, with
the purpose noted. 11 CFR 104.3(b)(2)(i) and (b)(4)(i).
The Commission expresses no opinion regarding the
application of any rules of the U.S. House of
Representatives or any tax ramifications of the proposed
activity, because those issues are not within its
jurisdiction.
This response constitutes an advisory opinion
concerning the application of the Act, or regulations
prescribed by the Commission, to the specific transaction or
activity set forth in your request. See 2 U.S.C. 437f.
Sincerely,
(signed)
Lee Ann Elliott
Chairman
Enclosures (AOs 1995-46, 1995-42, 1995-26, and 1980-29)
_______________________________
1 According to Appendix B to the "Call for the 1996
Democratic National Convention," Guam is allocated three
unpledged delegate votes, including one to be exercised by
the Democratic Member of Congress.
2 In explaining the application of the case-by-case
approach, the Commission
reaffirm[ed] its long-standing opinion that
candidates have wide discretion over the use of
campaign funds. If the candidate can reasonably
show that the expenses at issue resulted from
campaign or officeholder activities, the
Commission will not consider the use to be
personal use.
Explanation and Justification, Commission Regulations on
Personal Use of Campaign Funds, 60 Fed. Reg. 7862, 7867
(February 9, 1995).
3 In Advisory Opinion 1980-29, the Commission concluded
that the costs that a Congressman would incur by his
participation as a delegate to the 1980 Republican National
Convention could be defrayed from his campaign funds. The
opinion explained that candidates and their committees had
wide discretion as to the spending of campaign funds.
Because the opinion was issued before repeal of the
exemption (for certain Members) from the prohibition on
personal use of campaign funds, the Commission notes that
it is no longer applicable. The regulations on personal use
promulgated in 1995 provide more specific standards
governing the use of campaign funds.
4 With respect to your own travel expenses, the
Commission's regulations covering delegate activity indicate
that such costs would be for the purpose of influencing a
Federal election and, hence, not a personal use. See 11 CFR
110.14(c) and (e).