Proposed Rule2024-06863
Use of Campaign Funds for Candidate and Officeholder Security
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 9, 2024
Issuing agencies
Federal Election Commission
Abstract
The Federal Election Commission proposes to amend its regulations regarding the use of campaign funds to pay for security measures for federal candidates and officeholders. The proposed rule would codify several Commission advisory opinions that authorized the use of campaign funds to pay for certain security measures and address additional issues raised in those advisory opinions. The Commission seeks comment on the proposed rule and has made no final decision on the issues presented in this rulemaking.
Full Text
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<title>Federal Register, Volume 89 Issue 69 (Tuesday, April 9, 2024)</title>
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[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Proposed Rules]
[Pages 24738-24742]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06863]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 /
Proposed Rules
[[Page 24738]]
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FEDERAL ELECTION COMMISSION
11 CFR Part 113
[Notice 2024-09]
Use of Campaign Funds for Candidate and Officeholder Security
AGENCY: Federal Election Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Election Commission proposes to amend its
regulations regarding the use of campaign funds to pay for security
measures for federal candidates and officeholders. The proposed rule
would codify several Commission advisory opinions that authorized the
use of campaign funds to pay for certain security measures and address
additional issues raised in those advisory opinions. The Commission
seeks comment on the proposed rule and has made no final decision on
the issues presented in this rulemaking.
DATES: Comments must be received on or before June 10, 2024. The
Commission may hold a public hearing on this Notice. Commenters wishing
to testify at a hearing must so indicate in their comments. If a
hearing is to be held, the Commission will publish a notice in the
Federal Register announcing the date and time of the hearing.
ADDRESSES: All comments must be in writing. Commenters are encouraged
to submit comments electronically via the Commission's website at
<a href="http://sers.fec.gov/fosers">http://sers.fec.gov/fosers</a>, reference REG 2024-01. Alternatively,
comments may be submitted in paper form addressed to the Federal
Election Commission, Attn.: Mr. Robert M. Knop, Assistant General
Counsel for Policy, 1050 First Street NE, Washington, DC 20463.
Each commenter must provide, at a minimum, his or her first name,
last name, city, and state. All properly submitted comments, including
attachments, will become part of the public record, and the Commission
will make comments available for public viewing on the Commission's
website and in the Commission's Public Records Office. Accordingly,
commenters should not provide in their comments any information that
they do not wish to make public, such as a home street address,
personal email address, date of birth, phone number, social security
number, or driver's license number, or any information that is
restricted from disclosure, such as trade secrets or commercial or
financial information that is privileged or confidential.
FOR FURTHER INFORMATION CONTACT: Robert M. Knop, Assistant General
Counsel for Policy, Luis M. Lipchak, Attorney, Anthony T. Buckley,
Attorney, or Joseph P. Wenzinger, Attorney, 1050 First Street NE,
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: The Commission proposes to amend its
regulations to clarify that federal candidates and officeholders may
use campaign funds to pay for 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 proposed rule would be
consistent with Commission advisory opinions that authorized such
spending and would address additional issues raised in those advisory
opinions. The Commission invites public comments on this proposed rule.
I. Background
A. Act and Commission Regulations
The Federal Election Campaign Act (the ``Act'') \1\ identifies six
categories of permissible uses of contributions accepted by a federal
candidate, two of which are ``ordinary and necessary expenses incurred
in connection with the duties of the individual as a holder of Federal
office,'' and ``any other lawful purpose not prohibited by 52 U.S.C.
30114(b).'' \2\ Under 52 U.S.C. 30114(b), contributions accepted by a
candidate may not be converted to ``personal use'' by any person.
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\1\ 52 U.S.C. 30101-45.
\2\ 52 U.S.C. 30114(a); see also 11 CFR 113.2(a)-(e).
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The Act and Commission regulations define ``personal use'' as the
use of campaign funds ``to fulfill any commitment, obligation, or
expense of a person that would exist irrespective of the candidate's
election campaign or individual's duties as a holder of Federal
office.'' \3\ The Act and Commission regulations provide a non-
exhaustive list of expenses that, when paid using campaign funds,
constitute per se conversion of those funds to personal use.\4\ The
Commission determines on a case-by-case basis whether the use of
campaign funds to pay expenses other than those listed would be a
prohibited conversion of the funds to personal use.\5\
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\3\ 52 U.S.C. 30114(b)(2); see also 11 CFR 113.1(g) (defining
``personal use'').
\4\ See 52 U.S.C. 30114(b)(2); 11 CFR 113.1(g)(1)(i).
\5\ See 11 CFR 113.1(g)(1)(ii) (providing non-exhaustive list of
expenses to be determined for personal use on a case-by-case basis).
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The Commission has long recognized that if a candidate ``can
reasonably show that the expenses at issue resulted from campaign or
officeholder activities, the Commission will not consider the use to be
personal use.'' \6\
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\6\ Personal Use of Campaign Funds, 60 FR 7862, 7867 (Feb. 9,
1995).
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B. Security Measures
Neither the Act nor Commission regulations identify the use of
campaign funds to pay for the costs of security measures for federal
candidates or officeholders as per se personal use. In several advisory
opinions, however, the Commission has permitted the use of campaign
funds to pay for various security measures for federal candidates or
officeholders.
The Commission has issued several advisory opinions authorizing the
use of campaign funds for certain home security upgrades to protect
against threats to the physical safety of federal officeholders and
their families.\7\ The facts presented in those advisory opinions
indicated that the threats were motivated by the requestors' public
roles as federal officeholders, candidates, or both. The Commission
[[Page 24739]]
determined in each instance that the expenses for the proposed security
upgrades would not have existed irrespective of the requestors' duties
as federal officeholders or candidates.\8\ Therefore, the Commission
concluded that the use of campaign funds to pay for the security
upgrades was permissible under the Act and Commission regulations.\9\
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\7\ See Advisory Opinion 2022-02 (Steube) at 5 (approving use of
campaign funds for the cost of a locking steel security gate at the
federal officeholder's residence); Advisory Opinion 2020-06
(Escobar) at 2 (authorizing the use of campaign funds for security
lighting and wiring at a federal officeholder's residence); Advisory
Opinion 2011-17 (Giffords) at 3 (approving use of campaign funds for
installing improved exterior lighting, improved locks, and a duress
alarm button); Advisory Opinion 2011-05 (Terry) at 4 (approving use
of campaign funds for installation of an exterior closed circuit
television monitor); Advisory Opinion 2009-08 (Gallegly) at 4
(approving use of campaign funds for non-structural upgrades to home
security system).
\8\ Additionally, in Advisory Opinion 2020-06 (Escobar), the
Commission specified that the requested wiring and lighting costs
``constitute an integral part of an ordinary and necessary expense
that may be paid with campaign funds.'' Advisory Opinion 2020-06
(Escobar) at 4. Likewise, in Advisory Opinion 2022-02 (Steube), the
Commission stated that the requested locking steel gate at the
entrance to the property was a ``necessary component'' of a
residential security system and the costs of which ``constitute an
integral part of an ordinary and necessary expense that may be paid
with campaign funds.'' Advisory Opinion 2022-02 (Steube) at 5.
\9\ See Advisory Opinion 2022-02 (Steube) at 5; Advisory Opinion
2020-06 (Escobar) at 2; Advisory Opinion 2011-17 (Giffords) at 3;
Advisory Opinion 2011-05 (Terry) at 4; Advisory Opinion 2009-08
(Gallegly) at 4.
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The Commission also has previously considered the implications of
the heightened threat environment faced by Members of Congress
collectively, necessitating increased residential security measures
even if an individual Member has not received direct threats. For
example, in Advisory Opinion 2017-07 (Sergeant at Arms), the Commission
considered information from the House Sergeant at Arms about the
threats faced by Members of Congress due to their status as federal
officeholders, and the recommendations of the Capitol Police that
Members of Congress install or upgrade residential security systems to
protect themselves and their families in response to those threats. In
light of that information, the Commission concluded that certain costs
of installing or upgrading home security systems in and around a
Member's residence would constitute ordinary and necessary expenses
incurred in connection with Members' duties as federal officeholders
and that, therefore, Members of Congress may use campaign funds to pay
reasonable costs associated with such home security systems.\10\
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\10\ Advisory Opinion 2017-07 (Sergeant at Arms) at 3.
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In two advisory opinions, the Commission has also considered
whether campaign funds may be used to pay for window security film as
an authorized security enhancement in response to a heightened threat
environment faced by federal officeholders.\11\ In Advisory Opinion
2022-05 (Crapo), the Commission considered whether campaign funds could
be used to pay for a series of residential security enhancements
recommended by the U.S. Capitol Police, including the installation of
security film ``on all accessible windows to prevent surreptitious
observation into the residence.'' \12\ Similarly, in Advisory Opinion
2023-04 (Guy for Congress), the Commission considered whether campaign
funds could be used to pay for the costs to purchase and install a
security window film to protect a Member of Congress's home. The
Commission determined in both instances that window security film, as a
removeable security measure designed to mitigate potential threats
stemming from the Members' duties as federal officeholders, falls
within the category of ``non-structural security devices'' for which
campaign funds could be used, citing Advisory Opinion 2017-07 (Sergeant
at Arms).\13\
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\11\ See Advisory Opinion 2022-05 (Crapo) at 3 (approving use of
campaign funds for the cost of window security film at the federal
officeholder's residence); Advisory Opinion 2023-04 (Guy for
Congress) at 4 (authorizing the use of campaign funds for window
security film at a federal officeholder's residence).
\12\ Advisory Opinion 2022-05 (Crapo) at 3.
\13\ Advisory Opinion 2022-05 (Crapo) at 5; Advisory Opinion
2023-04 (Guy for Congress) at 4.
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The Commission also has permitted the use of campaign funds to pay
for security measures beyond home security upgrades.\14\ In Advisory
Opinion 2021-03 (NRSC et al.), the Commission authorized the use of
campaign funds to pay for ``bona fide, legitimate, professional
personal security personnel'' as ordinary and necessary expenses
incurred in connection with an officeholder's duties.\15\ The
Commission concluded that such expenses were permissible due to the
threats arising from members' status as federal officeholders,
including the heightened threat environment faced by Members of
Congress collectively.\16\
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\14\ See Advisory Opinion 2021-03 (NRSC et al.) at 2 (concluding
that Members of Congress may use campaign funds to pay for bona
fide, legitimate, professional personal security personnel to
protect themselves and their immediate families due to threats
arising from their status as officeholders).
\15\ Id.
\16\ See id. at 3.
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Last, in two advisory opinions the Commission authorized the use of
campaign funds to pay for reasonable cybersecurity expenses as ordinary
and necessary expenses incurred in connection with duties as a federal
officeholder.\17\ In those opinions, the Commission also determined
that the incidental benefit to others of cybersecurity measures, like
the incidental benefit to others of home security measures to protect
against physical harm, do not change the conclusion that such expenses
are ordinary and necessary expenses incurred in connection with a
federal officeholder's duties.\18\
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\17\ See Advisory Opinion 2018-15 (Wyden) at 4 (permitting use
of campaign funds for cybersecurity expenses including hardware,
software, consulting services, and emergency assistance); Advisory
Opinion 2022-17 (Warren) at 5 (approving use of campaign funds for
the incremental costs of professionally managed cybersecurity
services for ongoing network monitoring, patch management, backup
management, and remote incident remediation).
\18\ See Advisory Opinion 2022-17 (Warren) at 5.
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II. Proposed Rule
Consistent with the advisory opinions described above authorizing
the use of campaign funds to pay for security measures to protect
federal candidates and federal officeholders, the Commission proposes
to amend the regulatory definition of personal use to clarify that
campaign funds may be spent on certain security measures. A general
overview of the proposed rule is followed by specific details of each
proposal. The Commission seeks comments on the proposed rule and
emphasizes that it has not made any final decisions on whether or how
to amend its regulations.
A. Overview
The Commission's current regulations at 11 CFR 113.1(g)(1) through
(9) address the personal use of campaign funds. The Commission proposes
to add a new paragraph (g)(10) to address the use of campaign funds for
security measures.
Proposed 11 CFR 113.1(g)(10) would provide that the use of campaign
funds to pay for the reasonable costs of security measures for a
federal candidate or federal officeholder is not personal use. The new
regulation would only permit the use of campaign funds to pay for
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. The proposed regulation
would require that disbursements for security measures be for the usual
and normal charge for such goods and services. Categories of
permissible security measures and examples of such measures would be
listed in the following subparagraphs.
Although the advisory opinions discussed above explicitly addressed
only federal officeholders or individuals who were both federal
candidates and federal officeholders, the proposed rule would apply to
all candidates, including those who are not officeholders. This is
consistent with the statutory and
[[Page 24740]]
regulatory framework on the personal use of campaign funds, which
generally treats candidates and officeholders the same. Should the
rule, if adopted, nonetheless distinguish between a federal
officeholder and a candidate who is not a federal officeholder as it
pertains to the permissible use of campaign funds to pay for security
measures, for example on the grounds that candidates may not
necessarily face the same heightened threat environment as sitting
Members of Congress?
Proposed 11 CFR 113.1(g)(10)(i) would identify non-structural
security devices as a category of security measures for which
reasonable expenses would not be personal use and provides a non-
exhaustive list of examples of non-structural security devices.
Proposed 11 CFR 113.1(g)(10)(ii) would identify structural security
devices as a category of security measures for which reasonable
expenses would not be personal use and include a non-exhaustive list of
examples of structural security devices. This regulation would only
permit structural security measures that are intended solely to provide
security and not to improve the property or increase its value.
Proposed 11 CFR 113.1(g)(10)(iii) would identify professional
security personnel and services as a category of security measures for
which reasonable expenses would not be personal use.
Last, proposed 11 CFR 113.1(g)(10)(iv) would identify cybersecurity
software, devices, and services as a category of security measures for
which reasonable expenses would not be personal use.
B. Proposed 11 CFR 113.1(g)(10)--Candidate and Federal Officeholder
Security
Consistent with the advisory opinions described above, the proposed
rule would permit the use of campaign funds to pay for the 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 proposed regulation would require that disbursements
for security measures be for the usual and normal charge for such goods
or services. The usual and normal charge would be defined as, in the
case of goods, the price of those goods in the market in which they are
ordinarily purchased, and, in the case of services, the hourly or
piecework charge for the services at a commercially reasonable rate
prevailing at the time the services were rendered. The proposed rule
would provide a non-exhaustive list of permissible security measures
based on the security measures that the Commission has previously
approved via advisory opinions. Are ``reasonable costs'' an appropriate
standard for determining the amount in campaign funds that may be used
to pay for the security measures, or does a reasonableness test invite
uncertainty? Should the regulation apply a reasonableness standard to
the amount of expenses overall or to the types of security measures for
which campaign funds are used? How would the Commission evaluate the
reasonableness of overall costs or of costs for specific security
measures? What kind of guidelines could the Commission use to evaluate
the reasonability of a given expense or of aggregate expenses for
security measures? Should the Commission consider different limitations
on the security measures or ``ordinary and necessary costs of security
measures''? \19\ Apart from the reasonability of the amount in campaign
funds used to pay for security measures, the Commission is proposing to
require that disbursements be for the usual and normal charge for such
goods or services. The proposed definition of ``usual and normal
charge'' is derived from the Commission's regulation at 11 CFR
100.52(d), describing in-kind contributions. This definition is also
consistent with the requirement in 11 CFR 113.1(g)(1)(H), which
prohibits a candidate from paying a salary to a family member unless
the salary is in exchange for bona fide services and the salary payment
is for the fair market value of the services. This is intended to
prevent candidates or officeholders from converting campaign funds to
personal use by paying friends or family members above-market rates for
security-related goods and services and to ensure that candidates and
officeholders do not receive a potentially impermissible in-kind
contribution from vendors.\20\ Should the Commission consider any other
limitations to ensure that candidates and officeholders don't enrich
friends and family members?
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\19\ See, e.g., 11 CFR 100.52(d)(2), 11 CFR 100.111(e)(2).
\20\ See Advisory Opinion 2022-17 (Warren) fn. 22.
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The requirement that threats be ``ongoing'' is meant to be flexible
and permissive, but to still set some concrete limits on uses, such as
after threats subside or the person is no longer an officeholder or
candidate. Is ``ongoing'' appropriate limiting language to qualify
under the rule? Should the Commission use different limiting language
on the nature of the threats in addition to or instead of ``ongoing''
(e.g., ``direct,'' ``specific'' or ``persistent'')? If a security
measure is taken in response to a specific threat, as opposed to the
``heightened threat environment'' discussed below, should the
Commission require that such threat or threats be reported to law
enforcement before a committee may use campaign funds to pay for
security measures related to that threat?
Several advisory opinions have approved the use of campaign funds
for security measures due to ongoing--but not necessarily specific--
threats to the requestors due to their status as federal officeholders
and considering the ``heightened threat environment'' in recent
years.\21\ Should the rule explicitly require that candidates or
officeholders face a ``heightened threat environment''? If so, should
the rule explain how the Commission will evaluate whether there is a
``heightened threat environment''? How would the Commission evaluate
whether a ``heightened threat environment'' no longer exists?
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\21\ See Advisory Opinion 2021-03 (NRSC et al.); Advisory
Opinion 2017-07 (Sergeant at Arms).
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The Commission has followed Advisory Opinion 2017-07 (Sergeant at
Arms) in concluding there is a ``heightened threat environment'' in
more recent advisory opinions, but should the rule allow other bases
for establishing threats or dangers, such as a law enforcement opinion
or some other standard? Should a law enforcement or a professional
security firm's recommendation be required before a candidate or
officeholder may purchase security measures with campaign funds, or
should such recommendation at least establish a presumption that the
security measures do ``address'' an ongoing danger or threat? The
Commission does not intend for the proposed rule to encompass privacy
measures that do not provide a security function, e.g. privacy hedges
or one-way mirror glass. Does the use of the term ``security measures''
in the proposed rule address that distinction or is additional
clarification needed in the rule?
In addition to candidates and officeholders, should the rule also
permit campaign funds to be used to pay for security measures
specifically for staff members of a candidate or officeholder, for
example, to pay for security measures to protect a staff member's
house? Further, should the rule also permit campaign funds to be used
to pay for security measures for the candidate or officeholder's
family,
[[Page 24741]]
including family members that do not reside with the candidate or
officeholder? To ensure that security measures are primarily for the
protection and benefit of a federal candidate or federal officeholder
and no other persons, should the rule further stipulate that any
benefits accruing to other household members or visitors from the
security measures must be ``incidental'' to the protection of the
candidate or officeholder? \22\ Should certain security measures be
explicitly permitted for the family members of candidates or
officeholders? \23\
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\22\ See Advisory Opinion 2022-17 (Warren) at 5 (concluding that
candidate and officeholder may use campaign funds for cybersecurity
measures to protect her home network, notwithstanding that family
members and visitors may also connect their personal devices to
candidate's home network, so long as any benefit to others are
incidental).
\23\ See Advisory Opinion 2021-03 (NRSC et al.) at 2.
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Finally, should the Commission require any recordkeeping
requirements beyond those that apply to all disbursements by an
authorized committee? \24\
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\24\ See 11 CFR 102.9.
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C. Proposed 11 CFR 113.1(g)(10)(i)--Non-Structural Security Devices
Under existing regulations, the Commission has authorized the use
of campaign funds for non-structural security devices in several prior
advisory opinions under the rationale that expenses for such security
measures would not exist irrespective of the duties of a federal
officeholder or candidate.\25\
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\25\ See Advisory Opinion 2011-17 (Giffords) at 3 (approving use
of campaign funds for security expenses that would not exist
irrespective of duties as a federal officeholder or candidate);
Advisory Opinion 2011-05 (Terry) at 4 (same); and Advisory Opinion
2009-08 (Gallegly) at 4 (same). See also 2017-07 (Sergeant at Arms)
at 2 (concluding that Members of Congress may use campaign funds for
security expenses as ordinary and necessary expenses); Advisory
Opinion 2018-15 (Wyden) at 3 (concluding that campaign funds can be
used to pay for cybersecurity expenses as they are ordinary and
necessary expenses in connection with duties of a federal office
holder).
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Proposed 11 CFR 113.1(g)(10)(i) would identify non-structural
security devices as a category of security measures for which
reasonable expenses would not be personal use and provides a non-
exhaustive list of examples of non-structural security devices that
includes security hardware, locks, alarm systems, motion detectors, and
security camera systems.
Are there additional examples of ``non-structural security
devices'' that should be explicitly listed in this category? For
example, should the rule explicitly allow payments for ``training and
equipment for personal defense?'' Should the use of these devices be
further limited in any way, for example limiting the use of
transportable security devices only to residences or offices?
D. Proposed 11 CFR 113.1(g)(10)(ii)--Structural Security Devices
The Commission has previously concluded that the use of campaign
funds for certain structural security devices, such as wiring,
lighting, gates, doors, and fencing, would not be personal use so long
as they are not intended to improve the property or increase its value.
The Commission reasoned that such expenses were ordinary and necessary
expenses related to the duties of a federal candidate or federal
officeholder.\26\ Proposed 11 CFR 113.1(g)(10)(ii) would identify
structural security devices as a category of security measures for
which reasonable expenses may be paid for using campaign funds by
federal officeholders and candidates. Proposed 11 CFR 113.1(g)(10)(ii)
would also include a non-exhaustive list of examples of structural
security devices. The proposed rule would only permit structural
security measures that are intended solely to provide security and not
to improve the property or increase its value.
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\26\ See Advisory Opinion 2020-06 (Escobar) at 3 (authorizing
the use of campaign funds for security lighting and wiring at
member's residence); Advisory Opinion 2022-02 (Steube) at 5
(permitting the use of campaign funds for the installation of a
security gate at member's residence).
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Should the use of structural security devices be limited to
particular properties, such as a candidate or officeholder's residence,
which are the only properties for which the Commission has specifically
approved structural security devices? \27\ Is the limitation on the use
of structural security devices--namely that the devices may not be
intended to improve the property or increase its value--sufficient or
should the Commission use a different limiting language? \28\ Should
the proposed rule provide that an incidental improvement to the
property or the increase in its value as a result of an installation of
a structural security device nonetheless would be an acceptable use of
campaign funds? \29\
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\27\ See Advisory Opinion 2020-06 (Escobar) at 3 (authorizing
the use of campaign funds for security lighting and wiring at
member's residence); Advisory Opinion 2022-02 (Steube) at 5
(permitting the use of campaign funds for the installation of a
security gate at member's residence); Advisory Opinion 2022-05
(Crapo) at 5 (concluding that campaign funds can be used for various
security upgrades at member's residences).
\28\ See Advisory Opinion 2022-02 (Steube) at 4-5 (``[T]he
purchase and installation of the gate is intended to provide an
effective security system and is not intended for the purpose of
improving your home.''); Advisory Opinion 2020-06 (Escobar) at 3
(approving use of campaign funds for installation of security
lighting and wiring ``meant solely for supporting the effectiveness
of the security system and not as an `improvement' to your home.'').
\29\ Id.
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E. Proposed 11 CFR 113.1(g)(10)(iii)--Professional Security Personnel
and Services
The Commission has previously authorized the use of campaign funds
for personal security expenses for Members of Congress and their
families as ordinary and necessary expenses arising from their status
as officeholders when they are not under the protection of federal
agents.\30\ Proposed 11 CFR 113.1(g)(10)(iii) would establish
professional security personnel and services as a category of security
expenses for which campaign funds may be used.
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\30\ See Advisory Opinion 2021-03 (NRSC et al.) at 3 (concluding
that Members of Congress may use campaign funds to pay for security
personnel to protect themselves and their immediate families due to
threats arising from their status as officeholders ``when federal
agents are not protecting the Members or the Members' families.'').
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Under the proposed rule, campaign funds could be used to pay for
personal security expenses of federal candidates and officeholders 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. Should this proposed rule be
further limited such that payment for professional security personnel
or similar services is permitted only when candidates or officeholders
are not already receiving protection from law enforcement? \31\ Should
the proposed rule explicitly permit the use of campaign funds for
professional security personnel or similar services for the immediate
family members of federal candidates or federal officeholders? \32\
Should the proposed rule require that professional security personnel
be bona fide, legitimate, professional personal security or have
additional qualifications or licenses?
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\31\ Id.
\32\ Id.
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F. Proposed 11 CFR 113.1(g)(10)(iv)--Cybersecurity Software, Devices,
and Services
Lastly, in two prior instances, the Commission has authorized the
use of campaign funds for cybersecurity measures including software,
devices, and services as ordinary and necessary expenses related to a
federal officeholder's duties.\33\ Proposed 11
[[Page 24742]]
CFR 113.1(g)(10)(iv) would establish cybersecurity software, devices,
and services as a category of security measures that may be paid for
using campaign funds for federal officeholders and candidates. Should
this proposed rule be further limited to only those that provide
``incidental'' benefits to persons other than the candidate or
officeholder, such as family members or campaign staff, who might also
benefit from enhanced cybersecurity'' when using the software, devices,
or services provided to the candidate or officeholder? \34\ And, if so,
should the Commission define the scope of permissible ``incidental''
benefits?
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\33\ See Advisory Opinion 2022-17 (Warren) at 5 (concluding that
federal officeholder could use campaign funds for cybersecurity
improvements to her home network without violating the prohibition
against personal use ``so long as the benefits accruing to household
members and visitors required by the protection of the home network
are incidental.''); Advisory Opinion 2018-15 (Wyden) at 4
(concluding that the use of campaign funds to pay for certain
cybersecurity measures for United States Senators would constitute
ordinary and necessary expenses incurred in connection with their
duties as federal officeholders.)
\34\ See Advisory Opinion 2022-17 (Warren) at 5.
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Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory
Flexibility Act)
The Commission certifies that this proposed rule, if adopted, would
not have a significant economic impact on a substantial number of small
entities. This proposed rule would provide flexibility to principal
campaign committees that choose to use campaign funds to pay for
security measures for federal candidates or officeholders. Any proposed
rule that could be construed as placing an obligation on a principal
campaign committee would apply only to campaigns that choose to pay for
security measures for federal candidates or officeholders. This
proposed rule would not impose any new recordkeeping, reporting, or
financial obligations on principal campaign committees that do not
choose to pay for security measures for federal candidates or
officeholders, and any such new obligations that may be imposed on
principal campaign committees that do choose to pay for such security
measures would be minimal. Thus, to the extent that any entities
affected by these proposed rules might fall within the definition of
``small businesses'' or ``small organizations,'' the economic impact of
complying with this rule would not be significant.
List of Subjects in 11 CFR Part 113
Campaign funds.
For the reasons set out in the preamble, the Federal Election
Commission proposes to amend 11 CFR part 113 as follows:
PART 113--PERMITTED AND PROHIBITED USES OF CAMPAIGN ACCOUNTS
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1. The authority citation for part 113 continues to read as follows:
Authority: 52 U.S.C. 30102(h), 30111(a)(8), 30114, and 30116.
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2. In Sec. 113.1, add paragraph (g)(10) to read as follows: Sec.
113.1 Definitions (52 U.S.C. 30114).
* * * * *
(g) * * *
(10) Candidate and federal officeholder security. The use of
campaign funds to pay for the reasonable costs of security measures for
a federal candidate or federal officeholder is not personal use, 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. Disbursements for security
measures must be for the usual and normal charge for such goods or
services. Usual and normal charge means, in the case of goods, the
price of those goods in the market in which they are ordinarily
purchased, and, in the case of services, the hourly or piecework charge
for the services at a commercially reasonable rate prevailing at the
time the services were rendered. Examples of such security measures
include, but are not limited to:
(i) Non-structural security devices, such as security hardware,
locks, alarm systems, motion detectors, and security camera systems;
(ii) Structural security devices, such as wiring, lighting, gates,
doors, and fencing, so long as such measures are intended solely to
provide security and not to improve the property or increase its value;
(iii) Professional security personnel and services;
(iv) Cybersecurity software, devices, and services.
Dated: March 27, 2024.
On behalf of the Commission.
Sean J. Cooksey,
Chairman, Federal Election Commission.
[FR Doc. 2024-06863 Filed 4-8-24; 8:45 am]
BILLING CODE P
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