Federal Election Commission Main Page
December 22, 1980
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1980-138
Mr. Douglas A. Riggs
Bogle & Gates
900 West Fifth Avenue
Suite 525
Anchorage, Alaska 99501
Dear Mr. Riggs:
This responds to your letter of November 13, 1980, on
behalf of Senator-elect Frank H. Murkowski concerning application
of the Federal Election Campaign Act of 1971, as
amended ("the Act"), to the use of excess campaign funds by
Mr. Murkowski.
Your letter asks whether excess campaign funds may be used
to pay necessary costs incurred by Senator-elect Murkowski and
his staff during the period of transition from the date of
November 5, 1980 to the date he is sworn in as a United States
Senator. These costs would include the costs associated with
winding down his campaign headquarters and those associated
with the maintenance of a transition office including: rent,
postage, staff salaries, office supplies, telephone, telegraph
and travel expenses for the Senator-elect. In addition, you
ask whether the funds may be spent for lodging, food and
other expenses incurred in moving from Alaska to Washington,
D.C., and other travel to Washington, D.C. or within Alaska
which may be required of the Senator-elect prior to being
sworn in. You have also asked whether the excess campaign
funds remaining from the Senator-elect's campaign may be used
to defray the expenses of moving the Senator-elect's family
to Washington, D.C., and to pay living expenses of the family
during the transition period.
The Act and Commission regulations provide that excess
campaign funds may be used by a candidate or individual to
defray any ordinary and necessary expenses incurred in
connection with his or her duties as a holder of Federal
office, may be contributed to any organization described in
26 U.S.C. SS 501(c), or may be used for any other lawful purpose,
including transfers without limitation to any national,
State, or local committee of any political party. 2 U.S.C.
SS 439a and 11 CFR 113. While the Act permits use of excess
campaign funds for "any lawful purpose," because Mr. Murkowski
was not a member of Congress on January 8, 1980, no personal
use of the excess campaign funds may be made by him or any
other person. 2 U.S.C. SS 439a. See also Advisory Opinion
1980-113, copy enclosed.
Commission regulations define the term "Federal officeholder"
to mean "an individual elected to or serving in
the office of ..Senator.." 11 CFR 113.1(c). Thus, while
the Senator-elect has not yet been sworn in as a United
States Senator, he is nevertheless a "Federal officeholder"
for purposes of 2 U.S.C. SS 439a and the quoted Commission
regulation. Accordingly, the issue presented in your
request is whether the described expenses are "ordinary
and necessary expenses" incurred in connection with
Mr. Murkowski's duties as a Federal officeholder and thus
payable from excess campaign funds, or whether the payment
from excess campaign funds of the described expenses would
constitute a "personal use" of those funds and thus prohibited
by SS 439a.
The Commission has previously recognized that excess
campaign funds may be used by an individual for transition
expenses of the type described herein since such expenses
are ordinary and necessary expenses incidental to holding
Federal office. See Re: AOR 1976-101 (dated December 1,
1976), and Advisory Opinion 1978-43, copies enclosed.
In the situation presented here, the expenses associated
with the Senator-elect's transition into Federal office,
the expense of moving the Senator-elect and his family
to Washington, D.C., and other travel between Alaska and
Washington, D.C. by the Senator-elect, are incurred by
the Senator-elect as a result of his election to Federal
office and therefore are "incidental" to his status under
11 CFR 113.1(c) as a "Federal officeholder." As ordinary
and necessary expenses incidental to holding Federal office,
payment for these expenses from excess campaign funds would
not constitute a "personal use" of campaign funds prohibited
by SS 439a. Accordingly, the Commission concludes that it is
permissible under the Act for the Senator-elect to pay for
transition, travel, and family moving costs described
in the request.
With respect to the payment of living expenses of the
Senator-elect and his family (during the period between
November 5, 1980, and the date he is sworn in as a United
States Senator), those expenses would exist whether
Mr. Murkowski was elected to Federal office or not, and
accordingly, are not "incidental" to his election to Federal
office. Payment from excess campaign funds for these living
expenses would therefore be a "personal use" of such funds
prohibited by the Act since the Senator-elect was not a member
of Congress on January 8, 1980. 2 U.S.C. SS 439a. See also
Advisory Opinion 1980-113, copy enclosed.
As to the winding down expenses of the campaign, the
Senator-elect's principal campaign committee may use campaign
funds to pay for such expenses. The Commission has held in
several previous opinions that campaign committees have wide
discretion in how campaign funds may be spent jin the course
of or in closing down the operation of a campaign committee
so long as they are properly reported under 2 U.S.C. SS 434.
See Advisory Opinions 1980-123, 1980-49, and 1978-5, copies
enclosed.
The Commission expresses no opinion as to the possible
application of Senate rules to the described activity since
those issues are outside its jurisdiction.
This response constitutes an advisory opinion concerning
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. SS 437f.