Key Takeaway: Last week, the Federal Election Commission (“FEC”) approved a regulation clarifying that campaign funds may be used to pay for security measures without violating the prohibition on using campaign funds for personal use.
The Federal Election Campaign Act prohibits candidates from using campaign funds for their own “personal use.” The FEC has defined “personal use” in its regulations and has provided guidance on the scope of that definition through advisory opinions. Specifically, the FEC has issued several advisory opinions opining that the use of campaign funds to pay for certain security measures at a federal officeholder’s home to protect against security threats, or even to address the heightened threat environment faced by Members of Congress collectively, is not personal use by those federal officeholders.
On September 19, 2024, the FEC approved a rule which amends its regulation on personal use to codify some of the advice provided in those prior opinions and to clarify that campaign funds may be used for federal candidates, federal officeholders, members of their families, and employees of their campaigns or federal offices to pay for security measures in certain instances. Specifically, use of campaign funds is not personal use when used for “reasonable costs of security measures…so long as the security measures address ongoing dangers or threats that would not exist irrespective of the individual’s status or duties as a federal candidate or federal officeholder.”
The FEC’s prior advisory opinions did not address whether a non-incumbent candidate, or whether the family and staff of a federal officeholder or candidate could use campaign funds for security measures without violating the ban on personal use. The new rule addresses this question outright. Members of the candidate’s family include: a candidate’s spouse; the child, step-child, parent, grandparent, sibling, half-sibling, or step-sibling of a candidate (or the spouse of any of those people); and a person sharing a residence with a candidate.
As noted above, the new rule limits the use of campaign funds for reasonable security measures that “address ongoing dangers or threats that would not exist irrespective of the individual’s status or duties as a federal candidate or federal officeholder.” Thus, the test is whether the ongoing danger or threat that is being addressed by a specific security measure would exist irrespective of the individual’s status or duties as a federal candidate or federal officeholder. For family members and staff, the test is whether the threats to the family members and staff would not exist irrespective of the individual’s status or duties as a federal candidate or federal officeholder. If a danger or threat would not exist irrespective of the individual’s status or duties as a federal candidate or federal officeholder, then using campaign funds for reasonable security measures will generally be permissible.
Put more simply, the threats must be related to one’s status as a candidate or officeholder, and not exist solely because of some other reason. Additionally, candidates and officeholders can only pay the usual, market rate for these security measures.
The FEC rule lists four categories of security measures that campaign funds can pay for, with examples of each. Please note that this is not an exhaustive list.
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Non-structural security devices, such as hardware, locks, alarm systems, motion detectors, and security camera systems.
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Structural security devices, such as wiring, lighting, gates, doors, and fencing (as long as they are intended solely for security and not to increase property value).
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Security personnel that are bona fide, legitimate, and professional.
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Cybersecurity software, devices, and services.
Please contact counsel for specific questions about the use of campaign funds for security expenses.