Rule2024-21918
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
September 25, 2024
Effective
January 1, 2025
Issuing agencies
Federal Election Commission
Abstract
The Federal Election Commission is amending its regulations regarding the use of campaign funds to pay for security measures for federal candidates, officeholders, and members of their family and staff. The Commission is adopting this rule to codify several Commission advisory opinions that authorize the use of campaign funds to pay for certain security measures and address additional issues raised in those advisory opinions.
Full Text
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<title>Federal Register, Volume 89 Issue 186 (Wednesday, September 25, 2024)</title>
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[Federal Register Volume 89, Number 186 (Wednesday, September 25, 2024)]
[Rules and Regulations]
[Pages 78201-78206]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-21918]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 186 / Wednesday, September 25, 2024 /
Rules and Regulations
[[Page 78201]]
FEDERAL ELECTION COMMISSION
11 CFR Part 113
[Notice 2024-22]
Use of Campaign Funds for Candidate and Officeholder Security
AGENCY: Federal Election Commission.
ACTION: Final rule.
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SUMMARY: The Federal Election Commission is amending its regulations
regarding the use of campaign funds to pay for security measures for
federal candidates, officeholders, and members of their family and
staff. The Commission is adopting this rule to codify several
Commission advisory opinions that authorize the use of campaign funds
to pay for certain security measures and address additional issues
raised in those advisory opinions.
DATES: The effective date is January 1, 2025.
FOR FURTHER INFORMATION CONTACT: Robert M. Knop, Assistant General
Counsel for Policy, Luis M. Lipchak, Attorney, or Joseph P. Wenzinger,
Attorney, 1050 First Street NE, Washington, DC 20463, (202) 694-1650 or
(800) 424-9530.
SUPPLEMENTARY INFORMATION: The Commission is amending its regulations
at 11 CFR 113 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 officeholder. The Commission is amending its regulations
consistent with prior advisory opinions that authorized such spending
on certain security measures, including non-structural security
devices; structural security devices; security personnel and services;
and cybersecurity software, devices, and services. The Commission's
amendments to the regulations also address additional issues raised in
prior advisory opinions.
Transmitting Final Rules to Congress
Before promulgating rules or regulations to carry out the
provisions of the Federal Election Campaign Act of 1971, as amended
(the ``Act''),\1\ the Commission transmits the rules or regulations to
the Speaker of the House of Representatives and the President of the
Senate for a thirty-legislative-day review period.\2\ The effective
date of the final rule is January 1, 2025.
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\1\ 52 U.S.C. 30101-45.
\2\ Id. 30111(d).
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Explanation and Justification
I. Background
A. Act and Commission Regulations
The Act identifies six categories of permissible uses of
contributions and donations 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).'' \3\ 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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\3\ 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.'' \4\ 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.\5\ 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.\6\
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\4\ 52 U.S.C. 30114(b)(2); see also 11 CFR 113.1(g) (defining
``personal use'').
\5\ See 52 U.S.C. 30114(b)(2); 11 CFR 113.1(g)(1)(i).
\6\ 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.'' \7\
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\7\ 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 numerous
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.\8\ 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
determined in each instance that the expenses for the proposed security
upgrades would not have existed irrespective of the candidate's
election campaign or the individual's duties as a federal
officeholder.\9\ Therefore, the Commission concluded that the use of
campaign funds to pay for the security
[[Page 78202]]
upgrades was permissible under the Act and Commission regulations.\10\
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\8\ 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).
\9\ 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.
\10\ 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 has also 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 that Member's duties as a federal
officeholder and that, therefore, Members of Congress may use campaign
funds to pay reasonable costs associated with such home security
systems.\11\
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\11\ 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. 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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\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. 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.\14\ 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.\15\
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\14\ Id.
\15\ 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 the
requestors' duties as federal officeholders.\16\ 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.\17\
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\16\ 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).
\17\ See Advisory Opinion 2022-17 (Warren) at 5.
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C. Notice of Proposed Rulemaking
On April 9, 2024, the Commission published a Notice of Proposed
Rulemaking (``NPRM'') in the Federal Register proposing to amend its
regulations to authorize the use of campaign funds to pay for security
measures to protect federal candidates and officeholders.\18\
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\18\ Candidate Salary, Notice of Proposed Rulemaking (``NPRM''),
89 FR 24738 (April 9, 2024), <a href="https://sers.fec.gov/fosers/showpdf.htm?docid=425136">https://sers.fec.gov/fosers/showpdf.htm?docid=425136</a>.
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The Commission's regulations at 11 CFR 113.1(g)(1) through (9)
address the personal use of campaign funds. In the NPRM, the Commission
proposed adding a new paragraph (g)(10) to address the use of campaign
funds for security measures.
Proposed paragraph (g)(10) provided that federal candidates and
officeholders may use 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
officeholder.\19\
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\19\ New paragraph (g)(10) also requires disbursements for
security measures to be for the usual and normal charge and explains
the meaning of usual and normal charge.
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It included four subparagraphs as follows:
<bullet> New 11 CFR 113.1(g)(10)(i), to identify non-structural
security devices as a category of security measures for which
reasonable expenses would not be personal use and provide a non-
exhaustive list of examples of non-structural security devices.
<bullet> New 11 CFR 113.1(g)(10)(ii), to 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.
<bullet> New 11 CFR 113.1(g)(10)(iii), to identify security
personnel and services as a category of security measures for which
reasonable expenses would not be personal use.
<bullet> New 11 CFR 113.1(g)(10)(iv), to identify cybersecurity
software, devices and services as a category of security measures for
which reasonable expenses would not be personal use.
D. Public Comments on the NPRM
The Commission received 14 timely comments and two late comments in
response to the NPRM. Seven comments were submitted by or on behalf of
organizations, and nine were from individuals.
The comments universally supported the Commission's proposal to
authorize the use of campaign funds to pay for certain security
measures for federal candidates and officeholders and the Commission's
proposal to include a non-exhaustive list of examples for which
reasonable expenses would not be deemed personal use.\20\ Commenters
agreed with the Commission's rationale that federal candidates and
officeholders should be able to spend campaign funds for security
measures given the safety and security threats that are faced by
individuals running campaigns and holding federal office. And
commenters broadly cited the
[[Page 78203]]
threats faced by candidates and officeholders and referred to specific
incidents of threats and harassment that have occurred involving
candidates and officeholders at the local, state, and federal levels.
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\20\ Three comments received from individuals were not
responsive to the NPRM.
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Although the comments broadly supported the Commission's proposal,
some raised concerns, particularly regarding the risks of improper use
of campaign funds under the pretext of security spending, such as for
security services that may not be bona fide, legitimate, and
professional, as discussed further below. Commenters also suggested two
additions to the proposed rule, most notably (1) to allow campaign
funds to be used to pay for security expenses for the staff and family
of candidates and officeholders in addition to the candidates and
officeholders themselves, and (2) to clarify that any security services
used by the federal candidate or officeholder must be bona fide,
legitimate, and professional. The Commission agrees with these
commenters and, accordingly, adopts the proposed rule with these two
additions, as discussed below.
II. Revised 11 CFR Part 113.1--Definitions
After reviewing public comments received in response to the NPRM,
the Commission is amending its regulations regarding the use of
campaign funds to allow the use of campaign funds to pay for certain
security measures for candidates, officeholders, members of their
family, and employees--as the term is defined at 26 CFR 31.3401 (c)-1--
of the campaign or office (hereinafter also referred to as ``staff'').
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.'' \21\ Consistent with this rationale and prior advisory opinions
that have authorized the use of campaign funds to pay for security
measures, the Commission is amending the regulatory definition of
personal use to clarify that campaign funds may be spent on certain
security measures.
As proposed in the NPRM, the Commission is adding a new paragraph
at 11 CFR 113.1(g)(10) to address the use of campaign funds for
security measures. Paragraph (g)(10) states the basic rule and personal
use standard. Subparagraphs (g)(10)(i) through (iv) provide a non-
exhaustive list of examples that would not be deemed personal use.
A. New 11 CFR 113.1(g)(10)--Candidate and Federal Officeholder Security
The Commission is adopting paragraph (g)(10) as proposed, with the
exception that the final rule will also cover family members and staff
of candidates and officeholders. Accordingly, the Commission's new
regulation provides that the use of campaign funds to pay for the
reasonable costs of security measures for a federal candidate or
officeholder or their family and staff 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 officeholder. The new regulation also requires that the
payment for security measures be made at the usual and normal charge
for such goods or services.\22\
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\22\ The new regulation defines ``usual and normal charge'' 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 are rendered.
See also 11 CFR 100.52(d)(2) (defining ``usual and normal charge''
generally).
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Reasonable Costs
In the NPRM, the Commission proposed to limit the use of campaign
funds for security measures to cover only the ``reasonable costs'' of
such security measures.
The Commission received five comments on the proposed ``reasonable
cost'' standard, four of which supported the proposal and one that
opposed it. One of the commenters supporting the proposal urged the
Commission to issue guidance or factors to consider in determining
reasonableness of security expenses. This commenter suggested that the
Commission take into account several factors in determining whether a
security expense is reasonable, including: (1) the nature of the
specific threat environment faced by the candidate or officeholder, (2)
the cost of the security measure and how commonly it is used, (3)
whether the security measure was recommended as part of a qualified
security assessment, (4) whether the candidate or officeholder (or a
member of their immediate family or staff) is a vulnerable person, and
(5) whether the candidate's or officeholder's personally identifiable
information is publicly available.\23\
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\23\ Brennan Center for Justice, Comment at 11-12 (June 10,
2024), <a href="https://sers.fec.gov/fosers/showpdf.htm?docid=425200">https://sers.fec.gov/fosers/showpdf.htm?docid=425200</a>.
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Another commenter suggested that a ``tailoring requirement'' should
be added, i.e., candidates and officeholders should only be permitted
to spend campaign funds on security measures that are ``reasonably
tailored to addressing ongoing dangers or threats.'' \24\ In the
commenter's view, the tailoring requirement would prevent abuse of
campaign funds and ensure that they are used in both a reasonable and
limited manner.\25\
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\24\ Campaign Legal Center, Comment at 3 (June 10, 2024),
<a href="https://sers.fec.gov/fosers/showpdf.htm?docid=425201">https://sers.fec.gov/fosers/showpdf.htm?docid=425201</a>.
\25\ Id.
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The commenter opposing the reasonableness standard viewed it as
unnecessary. This commenter asserted that the irrespective test in the
personal use regulations should be used to determine whether a security
expense is permissible rather than adopting a new reasonableness
standard.
The Commission agrees with the comments that support the use of the
reasonable cost standard in the proposed rule. The Commission finds
that the reasonable cost standard is a fair standard that provides
appropriate notice to candidates, officeholders, and the public at
large, and that the standard strikes the appropriate balance between
granting candidates and officeholders the authority to use campaign
funds for security needs while limiting such authority to prevent the
misuse of campaign funds in the name of security. Therefore, the
Commission adopts the rule as proposed in the NPRM, which authorizes
the use of campaign funds for reasonable costs.
Candidates and Officeholders
As proposed in the NPRM, the rule would authorize the use of
campaign funds to pay for certain security expenses for both candidates
and federal 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.
The Commission sought comment on whether any distinction should be
made between federal candidates and officeholders in how campaign funds
may be used to pay for security measures. Most of the commenters agreed
that the rule should authorize the use of campaign funds for security
expenses for both candidates and officeholders, and none suggested that
a distinction should be made between the two.
The Commission agrees. As is well documented in the comments and in
prior advisory opinions discussed above, both federal candidates and
officeholders face safety and security
[[Page 78204]]
threats due to running campaigns or holding federal office.
Accordingly, the Commission adopts the proposed rule authorizing the
use of campaign funds for certain security measures by both candidates
and officeholders.
Ongoing Dangers or Threats
As proposed in the NPRM, 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.
Most of the commenters generally supported the proposed rule
without commenting on the ongoing dangers or threats limitation.
Several commenters, however, questioned whether the ongoing dangers or
threats language was appropriate. One commenter recommended expanding
the rule to include ``reasonably likely future threats or dangers, or
past threats or dangers that may reoccur.'' \26\ Another commenter
expressed concern that the proposed rule was too restrictive and
recommended that the rule take into account the threat environment at
the national, state, or local level, rather than just the circumstances
of the individual.\27\
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\26\ Democratic Senatorial Campaign Committee and Democratic
Congressional Campaign Committee, Comment at 3 (June 10, 2024),
<a href="https://sers.fec.gov/fosers/showpdf.htm?docid=425203">https://sers.fec.gov/fosers/showpdf.htm?docid=425203</a>.
\27\ Brennan Center for Justice, Comment at 12 (June 10, 2024),
<a href="https://sers.fec.gov/fosers/showpdf.htm?docid=425200">https://sers.fec.gov/fosers/showpdf.htm?docid=425200</a>.
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Another commenter suggested that the proposed rule should focus on
whether the expense for the security measure would exist irrespective
of the individual's status or duties as a candidate or officeholder
rather than requiring any specific danger or threat.
Two commenters argued that the rule should not require a showing of
heightened threat environment for candidates and officeholders to spend
campaign funds on security measures. One of the commenters specifically
opposed requiring that a heightened threat environment be demonstrated
prior to spending on security measures. The other commenter explained
that many security measures are reasonable under any conditions and
should be treated as ordinary and necessary expenses, while the nature
of any threat environment should be a consideration in the
reasonableness test in the proposed rule language.
The Commission agrees with the comments that supported adopting the
proposed rule and does not find the need to change the ``ongoing
dangers or threats'' limitation. The Commission determines that the
proposed rule as drafted appropriately encompasses the scope of dangers
or threats faced by candidates and officeholders while establishing a
limit to prevent the abuse and personal use of campaign funds. The
Commission also agrees that a showing of a heightened threat
environment should not be required prior to spending of campaign funds
on security measures. Therefore, the Commission adopts the rule as
proposed in the NPRM regarding ongoing dangers or threats.
Family and Staff Security Measures
In the NPRM, the Commission's proposed rule did not explicitly
provide for the use of campaign funds for security measures for family
members or staff of federal candidates and officeholders. The
Commission, however, sought comment on whether the proposed rule should
be expanded to cover family members and staff.
Most of the commenters generally supported adopting the proposed
rule without commenting on whether family members and staff should be
explicitly covered. Four comments specifically supported it, while none
opposed it. Various commenters cited to media coverage of incidents of
threats and violence faced by the family members and staff of
candidates and officeholders, including the attack on the husband of
former House Speaker Nancy Pelosi and a death threat received by a
Congressional staff member.\28\ One of the comments supporting the
inclusion of family members and staff argued that such expenses should
be specifically included because the need for the security expenses for
family members and staff would not exist irrespective of the status of
the individual as a candidate or officeholder. One comment suggested
that the final rule should specify that ``family'' may include family
members who do not reside with the candidate or officeholder; another
comment recommended covering, at a minimum, the immediate family
members who reside with the officeholder or candidate.
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\28\ See Campaign Legal Center, Comment at 3 (June 10, 2024),
<a href="https://sers.fec.gov/fosers/showpdf.htm?docid=425201">https://sers.fec.gov/fosers/showpdf.htm?docid=425201</a>; Citizens for
Responsibility & Ethics in Washington, Comment at 2 (June 5, 2024),
<a href="https://sers.fec.gov/fosers/showpdf.htm?docid=425202">https://sers.fec.gov/fosers/showpdf.htm?docid=425202</a>.
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The Commission agrees that the proposed rule should be extended to
permit the use of campaign funds for security measures for the family
and staff of candidates and officeholders, in addition to the
candidates and officeholders themselves. The Commission acknowledges
the concerns raised by the commenters that the safety and security
threats faced by candidates and officeholders may also extend to their
families and staff, and in prior advisory opinions the Commission has
authorized the use of campaign funds to address such security
concerns.\29\ The Commission also agrees that, as with threats to
candidates and officeholders themselves, in such cases, those threats
to family members and staff would not exist irrespective of the
individual's status or duties as a federal candidate or federal
officeholder.
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\29\ 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); 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).
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The Commission therefore amends the proposed rule to permit the use
of campaign funds for reasonable security measures to address ongoing
dangers or threats to candidates and officeholders as well as members
of the candidate or officeholder's family and staff. The Commission
emphasizes that, as with candidates and officeholders, a security
expense for a member of the candidate or officeholder's family or staff
must satisfy the irrespective test, meaning that expenditures on such
security measures could only be made if the threats to the family
member or staff did not exist irrespective of the individual's status
or duties as a candidate or officeholder.
Regarding the scope of the term ``family member,'' for purposes of
this provision, the Commission will use the existing definition of
``members of the candidate's family'' in 11 CFR 113.1(g)(8). For this
section, the term ``employee'' is used as defined at 26 CFR 31.3401(c)-
1, as that is a well-recognized definition used elsewhere in Commission
regulations, such as in 11 CFR part 114. This definition generally does
not include campaign volunteers.\30\ However, candidates or
officeholders
[[Page 78205]]
may request advisory opinions in circumstances where they seek to use
campaign funds for such security measures.
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\30\ The Commission has previously stated that the fact that
individuals other than the intended protectee will benefit from a
security measure does not preclude the Commission from determining
that the use of campaign funds for such security measure is not
personal use. See Advisory Opinion 2022-17 (Warren Democrats, Inc.)
at 5 (concluding that authorized committee may use campaign funds to
pay for costs of reasonable cybersecurity measures to protect
officeholder's home network, even though the benefits of such
measures would necessarily extend to other members of the household
and visitors to the home).
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In sum, the Commission adopts the new rule as amended to permit the
use of campaign funds to pay for security measures for federal
candidates, officeholders, and their family and staff.
Law Enforcement Requirement
The proposed rule did not require law enforcement involvement or
assessment in permitting the use of campaign funds to pay for security
measures for federal candidates and officeholders. However, the
Commission sought comment on whether such a law enforcement requirement
would be appropriate.
Most of the comments generally supported adopting the proposed rule
without specifically commenting on whether law enforcement threat
assessments should be required. Although various comments acknowledged
that law enforcement assessments may play a useful role in
demonstrating the existence of threats to candidates and officeholders,
three comments opposed requiring them. One comment recommended that a
police report be required if the campaign wished to spend above a
certain limit established by the Commission. Another comment explained
that although law enforcement assessment of a candidate or
officeholder's circumstances and any security recommendations will be
relevant to the determination of whether security expenses are
reasonable, as was the case in prior Commission advisory opinions, the
Commission never suggested that a law enforcement threat assessment was
required to permit spending of campaign funds on security expenses.
After considering the arguments for and against requiring law
enforcement threat assessments, the Commission has decided not to
impose such a requirement in the final rule. As many commenters have
noted, law enforcement threat assessments may play a useful role in
determining whether a particular security measure is reasonable, and
the Commission encourages candidates and officeholders to obtain such
assessments when possible. However, imposing such a requirement in the
regulation would be too restrictive, as it would deny the use of
campaign funds for security measures in the absence of a law
enforcement threat assessment even when an actual threat is genuine.
Accordingly, the Commission adopts the rule as proposed in the NPRM,
which does not require candidates or officeholders to obtain a law
enforcement threat assessment to spend campaign funds on security
measures.
Other Issues Raised by Comments
In the NPRM, the proposed rule did not address the ownership of
tangible security devices, such as security cameras installed on a
candidate's property. One comment argued that the final rule should
treat security devices purchased with campaign funds as the property of
the candidate's principal campaign committee, citing to Advisory
Opinion 1994-20 (Charlie Rose). The comment asserted that tangible
security items should remain the campaign's property and be sold at
fair market value or otherwise disposed of when the campaign winds
down. The Commission disagrees with this comment because the ownership
of tangible goods including those purchased for security measures
remain subject to other provisions of the Act and Commission
regulations, including prior advisory opinions that have treated non-
cash assets as excess campaign funds. Accordingly, the Commission
adopts the proposed rule without the amendment to address the ownership
of tangible goods.
Several commenters urged the Commission to ensure campaign funds
for security measures are not used for personal enrichment, especially
when security measures or services are provided by candidates' family
members. The Commission agrees with these comments that raised concerns
about personal enrichment and potential abuse of campaign funds but
finds that the proposed rule language, along with the other provisions
of the Act and regulations, sufficiently addresses these concerns. The
Commission therefore adopts the rule language as proposed.
Finally, one comment urged the Commission to explicitly acknowledge
that even if campaign funds may be used for security expenses,
campaigns are not required to pay for security expenses at the homes of
candidates, officeholders, or their families, and such expenses can be
paid for by candidates, officeholders, or their family members. The
Commission declines to adopt this recommendation because it views it as
unnecessary.
B. New 11 CFR 113.1(g)(10)(i)--Non-Structural Security Devices
In the NPRM, the Commission proposed to treat non-structural
security devices as a permissible category of security measures that
candidates and officeholders could pay for using campaign funds. As
proposed, 11 CFR 113.1(g)(10)(i) also provides several examples of
permissible non-structural security devices, namely security hardware,
locks, alarm systems, motion detectors, and security cameras.
Commenters generally supported adopting this provision. One
comment, however, suggested adding ``security training'' to the list of
examples of permissible non-structural security devices.
The Commission declines to do so. As acknowledged by the commenter,
``training'' is not a security measure that would generally be
categorized as a device. Accordingly, consistent with the comments that
support adopting the proposed rule, the Commission is adopting new 11
CFR 113.1(g)(10)(i) as proposed in the NPRM.
C. New 11 CFR 113.1(g)(10)(ii)--Structural Security Devices
In the NPRM, the Commission proposed to treat structural security
devices as permissible security measures that candidates and
officeholders may pay for with campaign funds. The proposed
subparagraph also listed several examples of permissible structural
security devices, including wiring, lighting, gates, doors, and
fencing. The proposed rule, however, required such devices to be
``intended solely to provide security and not to improve the property
or increase its value.''
The commenters generally supported adopting this provision. One
comment recommended that the rule not require structural security
devices to be intended ``solely'' to provide security. Another comment
recommended allowing structural security devices at locations such as
campaign headquarters, event spaces, and residences of staff and family
members who received threats arising from their connection with the
candidate or officeholder and not limiting the permissible use of such
security devices to the candidate or officeholder's residence. This
comment also recommended clarifying that incidental increases in value
to a property from structural security devices do not necessarily make
the use of campaign funds an impermissible personal use. However, the
comment noted that additional costs for features or aesthetic options
that do not serve a security purpose should not be permissible expenses
to be paid using campaign funds.
The Commission declines to adopt a rule that would allow the
installation of structural security devices for reasons other than
security. In the Commission's view, the proposed rule appropriately
restricts expenses to those that are
[[Page 78206]]
solely intended to provide security. Expenses for structural security
devices incurred for purposes other than security, such as to improve
the property or increase property values, do not fall within the
authority of this rule and may constitute the prohibited personal use
of campaign funds. However, the Commission agrees that, as noted by
another commenter, incidental increases in property value due to the
installation of a device solely intended to provide security would be
permissible. After considering all of the comments, the Commission is
adopting new 11 CFR 113.1(g)(10)(ii) as proposed in the NPRM.
D. New 11 CFR 113.1(g)(10)(iii)--Security Personnel and Services
In the NPRM, the Commission proposed to treat professional security
personnel and services as a category of security measures for which
candidates and officeholders may use campaign funds.
The Commission received several comments on this proposed rule. One
comment urged the Commission to provide strict guidance as to who
constitutes professional security personnel under the proposed rule so
that private militias would not be hired in the guise of security
measures. Another comment recommended that the professional security
personnel and services be limited to only bona fide, legitimate,
professional security personnel as articulated in Advisory Opinion
2021-03 (NRSC, et. al). Two comments argued that security personnel
paid for with campaign funds must be licensed by a government entity
and be up to date on all required certifications to prevent untrained
personnel from providing candidate and officeholder security. Two other
comments stated that spending on professional security personnel should
not be limited to candidates or officeholders who are not otherwise
protected by law enforcement or federal agents. And one comment would
require security firms to have no connection with candidates or their
staff to avoid unjust enrichment by them.
The Commission agrees that additional guidance would be helpful in
determining what are permissible security personnel and services under
this rule. As identified by one of the commenters, limiting the rule to
security personnel and services that are bona fide, legitimate, and
professional would be consistent with the limitation the Commission
previously approved in Advisory Opinion 2021-03 (NRSC, et. al).
Adopting this proposed limitation would also address various concerns
raised by commenters regarding the hiring of private militias, use of
untrained personnel, and unjust enrichment under the pretext of
security expenses. Therefore, the Commission adopts the proposed rule
language as amended to require security personnel and services be bona
fide, legitimate, and professional.
E. New 11 CFR 113.1(g)(10)(iv)--Cybersecurity Software, Devices, and
Services
In the NPRM, the Commission proposed to treat cybersecurity
software, devices, and services as a category of security expenses for
which candidates and officeholders may use campaign funds.
The comments received in response to the NPRM generally agreed with
treating cybersecurity protection measures as a permissible type of
security measure in the new rule. One comment specifically expressed
support for identifying cybersecurity measures in the new rule. None of
the comments received opposed including cybersecurity measures in the
new rule. Accordingly, the Commission adopts new 11 CFR
113.1(g)(10)(iv) as proposed in the NPRM.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory
Flexibility Act)
The Commission certifies that the proposed rule, if adopted, would
not have a significant economic impact on a substantial number of small
entities. The 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. The 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 this
proposed rule 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 amends 11 CFR part 113 as follows:
PART 113--PERMITTED AND PROHIBITED USES OF CAMPAIGN FUNDS
0
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.
0
2. Amend Sec. 113.1 by adding 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, federal officeholder, member of their family, and
employees--as defined in 26 CFR 31.3401(c)-1)--of the candidate's
campaign or the federal officeholder's office, 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 devices are intended solely to
provide security and not to improve the property or increase its value;
(iii) Security personnel and services that are bona fide,
legitimate, and professional; and
(iv) Cybersecurity software, devices, and services.
Dated: September 19, 2024.
On behalf of the Commission,
Sean J. Cooksey,
Chairman, Federal Election Commission.
[FR Doc. 2024-21918 Filed 9-24-24; 8:45 am]
BILLING CODE 6715-01-P
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</html>Indexed from Federal Register on September 25, 2024.
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