“The [law] … should not be interpreted to mean that a candidate or holder of public office can commit a criminal act in furtherance of his campaign and designate the legal defense of that action as a campaign expense.… Such expenses do not arise with respect to the candidate’s campaign, but because he decided to act irrespective of both his campaign obligations and federal law, in abuse of his local office.”
So said Chris Christie—then the United States Attorney for the District of New Jersey—when he opposed the 2003 request of an officeholder and former candidate to use campaign funds to defend himself against public corruption charges. The Federal Election Commission responded favorably to his views, sharply narrowing the circumstances in which candidates and officeholders could use federal campaign funds to pay criminal defense expenses, and starting a trend that has only gained momentum since then.
When Governor Christie’s own campaign asked the New Jersey Election Law Enforcement Commission for permission to spend campaign funds to respond to Justice Department subpoenas over the lane closings on the George Washington Bridge, similar concerns were voiced—but not by him. “Commissioners expressed concern that because there had been so few facts about the lane closures known, by approving the request they could eventually allow for campaign funds to be used in a criminal investigation, which is prohibited.” The campaign’s attorney, however, characterized the request as “ordinary,” and in the end it was granted.
Did Governor Christie’s attorney perhaps have a point, that U.S. Attorney Christie would not have acknowledged a decade ago? The main interest supporting federal restrictions on the campaign payment of legal fees is to avoid enriching candidates, and thereby risk corrupting them, by letting them spend campaign funds on expenses they would incur anyway, irrespective of candidate or officeholder status. This is why the FEC cited “expenses associated with a divorce or charges of driving under the influence of alcohol” as examples of prohibited expenses.
Yet since the FEC wrote these rules in 1995, the interrelationship between the criminal and political, which was frequent enough to begin with, has become more “ordinary” still. Even charges like drunk-driving, which the FEC found only to have “some impact” on campaign or officeholder status, and one insufficient to justify campaign payment, can now bring formal ethics proceedings as a matter of law. In the U.S. House of Representatives, because of a 2007 rules change, a criminal indictment requires the Committee on Ethics either to empanel an investigative subcommittee or to explain why it did not do so. In these cases, a Member’s best chance of prevailing in the mandatory ethics investigation is to win the criminal proceeding that triggered it. Yet the Member may not be able to use campaign funds to pay for the criminal defense, and must reserve them instead for what will then become a foreordained outcome before the Ethics Committee.
Two unusual facts were at play in the 2003 case that elicited U.S. Attorney Christie’s letter to the FEC. The first is that the government was seeking to recover the very same campaign funds that the officeholder wanted to use to pay his lawyers. The second, unspoken in his letter, was the prospect of asymmetrical warfare, in which amply supported prosecutors would have more leverage against a less well-heeled defendant. This latter consideration might have helped prompt the Christie campaign’s recent request. In any event, that request is a tacit acknowledgment that the interests at stake are not quite as clear-cut as Governor Christie once said they were.