FEC Advisory Opinion on “Established Congressional Member Organizations” Illustrates Conflicting FEC, House Rules on Use of Campaign Funds

Friday, April 21, 2023

The Federal Election Commission (“FEC”) issued an advisory opinion this week permitting U.S. House Members to use their campaign funds to pay for travel to Established Congressional Member Organization (“ECMO”) events. At the same time, the Chairman of the Committee on House Administration strenuously warned that campaign funds may not be used for such expenses. The conflicting positions illustrate the divergent rules that often apply to political activities and the need to consult experienced legal counsel to navigate these tricky nuances.

ECMOs are formally recognized groups in the House of Representatives organized around some common issue or interest and typically have the word “Caucus” in them. (Note that there are no formal ECMOs on the Senate side.) House Members that belong to an ECMO are permitted to transfer a portion of their “Member Representational Allowance” (“MRA”) to fund the ECMO’s operations. Under House rules and guidance, ECMOs may not pay for travel in connection with an ECMO’s activities.

At issue in the FEC advisory opinion was a request by Representative Nanette Diaz Barragan, the Chair of the Congressional Hispanic Caucus (“CHC”), to use her campaign funds to pay for House Members and other participants to travel to CHC events convening “constituents and stakeholders on issues of importance to Latino communities and to discuss the legislative and policy work of the CHC and its Members.”

The FEC rules broadly permit federal elected officials to use their campaign funds to pay for “any ordinary and necessary expenses in connection with the [official’s] duties as a holder of Federal office,” including specifically travel expenses “to participate in a function directly connected to bona fide official responsibilities” and any “appearance in an official capacity.” On this basis, the FEC concluded that Barragan’s request to use her campaign funds for travel related to CHC events was permissible.

The House ethics rules are narrower and set forth specific categories of official expenses that are payable and not payable with campaign funds. Consistent with the FEC rules, the House ethics rules permit campaign funds to pay for “officially-related travel expenses.” Here’s the rub, though: the Committee on House Administration, which has jurisdiction over ECMOs, has taken the position that “travel by ECMOs is not an official activity,” per the comments submitted by committee Chairman Representative Bryan Steil (emphasis in the original). (This is despite the Committee on House Administration and House Committee on Ethics both recognizing ECMOs as “official House entities.”) Therefore, under the House rules, Barragan’s proposal to use campaign funds would not be for permissible “officially-related travel expenses.”

The Barragan FEC advisory opinion is a reminder that Members of Congress must be careful when paying for expenses with campaign funds and, for that matter, with their MRA. The rules and interpretations issued by the Ethics and House Administration committees and FEC are not always intuitive and may even conflict with each other, as was the case here. (In the case of a conflict, the most restrictive rule or interpretation governs.)

On a related note, the use of campaign funds is not the only issue where conflicting rules apply.  For example, the FEC and IRS do not follow the same standards for determining when organizations must register as PACs and 527 organizations with the two agencies, respectively. Similarly, different standards apply for determining whether certain activities are reportable as “independent expenditures” or “electioneering communications” with the FEC or as “political campaign activity” with the IRS.

The Gober Group is in the business of helping clients navigate the complex and confusing rules that apply to their political activities.