In dueling draft advisory opinions to Representative Maxine Waters, the Federal Election Commission is divided over whether “leadership PACs” are subject to the personal use rules. Both drafts agree that FEC rules would not keep Representative Waters’ campaign, PAC or her personally from giving to a foreign candidate. But Draft A warns the Congresswoman that “the personal use prohibition applies to your leadership PAC,” while Draft B states flatly that the personal use restrictions do not apply to leadership PACs.” The FEC is scheduled to take up the drafts at its September 17 meeting.
What’s at stake in the Waters request is not whether Members of Congress can make “personal use” of their leadership PAC funds. Congressional ethics rules already keep them from doing that. Rather, it’s whether the FEC will expand the scope of federal campaign finance law’s personal use restriction in a way that emboldens criminal prosecution.
Current law presents heavy barriers against enforcing the personal use restrictions against leadership PAC spending, whether civilly or criminally. As recently as 2013, the FEC asked Congress to change the law to extend the personal use ban to leadership PACs, saying that “Congress might not have considered the application of the personal use prohibition to this particular type of political committee.” The FEC’s treatment of the issue in other advisory opinions has been muddled at best. In an advisory opinion issued last year to Representative Paul Ryan over whether his PAC could pay to publicize his book, the FEC deadlocked on the issue, with “three Commissioners holding the position that the Act’s personal use prohibition does not apply to leadership PACs.”
However, the general subject of personal use is a very attractive object of criminal prosecution. The Commission’s debate comes as the Justice Department has seemed more active in core campaign finance cases, with the recent prosecution of a House campaign manager for illegally setting up and running a super PAC, and the indictment of three aides to the presidential campaign of Representative Ron Paul for allegedly disguising payments made to an Iowa state senator for his endorsement.
Thus, the Waters opinion presents a serious policy question for the Commission. The FEC’s decision will have a small effect on what Members actually do, because of the existing Congressional ethics prohibitions. But a change in policy could give prosecutors a significant new tool in public corruption cases that—as all six of the current FEC Commissioners admitted—“Congress might not have considered.”