B-196862.OM, MAR 2, 1981

B-196862.OM, MAR 2, 1981

SUBJECT: JURISDICTION OF THE FEDERAL ELECTION COMMISSION OVER GOVERNMENT FUNDED ACTIVITIES DURING PRESIDENTIAL ELECTION CAMPAIGNS (FILE B-196862 O.M.; CODE 905029)

COMPTROLLER GENERAL:

THIS RESPONDS TO YOUR INQUIRY CONCERNING THE POSSIBLE JURISDICTION OF THE FEDERAL ELECTION COMMISSION (FEC) OVER USES OF APPROPRIATED FUNDS FOR CERTAIN ACTIVITIES DURING A PRESIDENTIAL ELECTION CAMPAIGN, SUCH AS TRAVEL AND SPEECH MAKING BY HIGH LEVEL GOVERNMENT OFFICIALS. YOUR INQUIRY ARISES IN CONNECTION WITH AFMD'S CURRENT REVIEW OF WHITE HOUSE AND EXECUTIVE AGENCY EXPENDITURES FOR SELECTED TRAVEL, ENTERTAINMENT, AND PERSONNEL COSTS DURING LAST YEAR'S PRESIDENTIAL CAMPAIGN.

IT IS CLEAR THAT FEC HAS NO DIRECT ROLE OR RESPONSIBILITY OVER SUCH GOVERNMENT-FUNDED ACTIVITIES. AS YOU KNOW, THE FEC HAS JURISDICTION FOR CIVIL ENFORCEMENT OF THE EXPENDITURE AND CONTRIBUTION LIMITATIONS UNDER THE FEDERAL ELECTION CAMPAIGN LAWS. IN THE EVENT THAT A PRESIDENTIAL CANDIDATE DECIDES TO RECEIVE PROCEEDS FROM THE PRESIDENTIAL ELECTION CAMPAIGN FUND (26 U.S.C. SEC. 9006), THE CANDIDATE MUST LIMIT CAMPAIGN EXPENDITURES TO THE AMOUNT AVAILABLE FROM THE FUND AND MAY NOT ACCEPT ANY PRIVATE CONTRIBUTIONS TO DEFRAY CAMPAIGN EXPENSES.

FEC'S TRADITIONAL POSITION HAS BEEN THAT GOVERNMENT-FUNDED ACTIVITIES, SUCH AS TRAVEL AND SPEECH MAKING BY FEDERAL OFFICIALS DO NOT CONSTITUTE "CONTRIBUTIONS" OR "EXPENDITURES" SUBJECT TO ITS JURISDICTION. THE CONGRESS HAS SPECIFICALLY ENDORSED THIS FEC POSITION THROUGH AMENDMENTS TO THE DEFINITIONS IN THE FEDERAL ELECTION CAMPAIGN ACT OF 1971. THE FEDERAL ELECTION CAMPAIGN ACT AMENDMENTS OF 1979 FN1 CHANGED THE DEFINITIONS OF "PERSON," "EXPENDITURE" AND "CONTRIBUTION" TO SPECIFICALLY EXCLUDE THE FEDERAL GOVERNMENT OR EXPENDITURES OF FEDERAL FUNDS. THE HOUSE COMMITTEE REPORT ON THIS LEGISLATION STATES AS FOLLOWS WITH RESPECT TO REVISED DEFINITION OF "CONTRIBUTION:" FN2

"(8) CONTRIBUTION (A) GENERAL DEFINITION. - THE PHRASE 'BY ANY PERSON' WAS ADDED TO THE DEFINITION OF CONTRIBUTION TO INCORPORATE THE COMMISSION OPINION THAT THE USE OF APPROPRIATED FUNDS OF THE FEDERAL GOVERNMENT IS NOT A CONTRIBUTION. (THE FEDERAL GOVERNMENT IS ALSO EXCLUDED FROM THE DEFINITION OF PERSON.) MISUSE OF APPROPRIATED FUNDS IS A VIOLATION OF FEDERAL LAW AND SUBJECT TO ENFORCEMENT BY OTHER AGENCIES."

DIGEST

OGC MEMORANDUM TO COMPTROLLER GENERAL ON EXTENT OF FEDERAL ELECTION COMMISSION'S JURISDICTION OVER USES OF APPROPRIATED FUNDS FOR CERTAIN ACTIVITIES DURING A PRESIDENTIAL ELECTION CAMPAIGN, SUCH AS TRAVEL AND SPEECH MAKING BY GOVERNMENT OFFICIALS. OGC CONCLUDES THAT THE COMMISSION HAS NO DIRECT ROLE OR RESPONSIBILITY OVER SUCH GOVERNMENT FUNDED ACTIVITIES, AS RECENT LEGISLATIVE CHANGES TO THE DEFINITIONS OF "PERSON," "EXPENDITURE" AND "CONTRIBUTION" WITHIN FEDERAL ELECTION CAMPAIGN ACT SPECIFICALLY EXCLUDE EXPENDITURES OF FEDERAL FUNDS.

FN1 PUB. L. 96-187 (JANUARY 8, 1980), 93 STAT. 1339).

FN2 H. R. REP. NO. 96-422, AT 6-7 (1979). ALSO SEE PAGE 11 OF THE REPORT, WHICH CONTAINS SIMILAR STATEMENTS REGARDING THE DEFINITIONS OF "EXPENDITURE" AND "PERSON."