Q: I am a staffer for a Senator, and I am hoping you can resolve a question that has arisen about the use of iPads for Senate work. As I understand it, the rules prohibit us from using computers for official Senate business if they are paid for by our Senator’s campaign. I have been a staffer for years, and this has been our practice for as long as I can remember. Others in our office say, however, that it is OK to use certain types of computers for Senate work even if paid for by the campaign. Specifically, they say that it is OK to use campaign-funded iPads for official purposes. Is this right?
A: It is right. But I can understand your confusion. Until recently, devices such as iPads had lurked in a gray area in the rules. It was not entirely clear whether it was OK to do official Senate business on campaign-funded iPads. Recently, the Senate Ethics Committee resolved that ambiguity and confirmed that it is OK.
The rule in question is Senate Rule 38, which prohibits “unofficial office accounts.” This means that Members and staffers may not fund official activities with private donations, such as campaign funds.
On the other hand, it is permissible to use campaign funds for activities that are “related to official duties or status” but do not qualify as “core Senate functions.” The idea is that private individuals should not be paying directly for official duties by Senators and staffers.
The challenge, of course, is to distinguish between activities that are merely related to official duties and those that are actually core Senate functions. Fortunately, there is official guidance on point. Specifically, campaign funds may not be used for franked mail, employee salaries, office space and equipment. Campaign funds may be used for other expenses related to Senate official duties.
The issue here is the prohibition on the use of campaign funds to pay for Senate “equipment.” The Senate Ethics Manual states that campaign funds may not be “used to provide equipment used in the performance of official duties, and Members may not accept equipment of loans of equipment from any third party, including any campaign.”
There is an exception, however, that permits the use of campaign funds to purchase a handheld communication device (iPhone or BlackBerry) and its associated information technology services. Under this exception, Members and staffers may use campaign-funded cellphones in connection with both official and campaign purposes. Before this exception was created, in order to avoid violating the rules, Senators and staffers “suffered the paradoxical inconvenience of sometimes having to carry duplicate if not triplicate cellphones (Senate, campaign and personal),” states a 2002 interpretative ruling. The exception was intended to end this inconvenience.
On the other hand, this exception does not extend to personal computers. This is consistent with your understanding that historically campaigns may not pay for computers used for official Senate business. According to the Senate Ethics Committee, a “handheld communications device includes devices such as cellular telephones and handheld digital assistants, but does not include laptop computers.”
The question here is whether an iPad is treated as a personal computer or a handheld communication device for purposes of the rule. If it’s a personal computer, Senate rules would prohibit using campaign funds to pay for an iPad used for official purposes. If it’s a handheld device, it meets the exception.
Earlier this month, this question was addressed squarely in a “Dear Colleague” letter issued jointly by the Ethics Committee and the Rules and Administration Committee. The Ethics Committee issues guidance regarding conduct by Senators and employees, while the Rules and Administration Committee oversees the appropriate use of official Senate funds.
The letter states that “tablet computers, such as iPads and other similar devices, may be purchased with funds from a Senator’s principal campaign committee and used by Members and employees on a Member’s personal office staff for both official and campaign purposes.” The reasoning is similar to the reasoning in creating the exception for handheld communications devices. Specifically, the letter states that it is “intended to provide Senate Members and employees with the convenience of using a single handheld communications device for multiple purposes (i.e., official and campaign), at no cost to the taxpayer, without unduly intruding upon the Senate’s role in providing equipment for Senate duties.”
If your Senator’s campaign decides to take advantage of this exception, or already is, there is good reason to proceed with caution.
The Dear Colleague letter closes with a useful reminder about protecting confidential information. Because campaign-funded iPads do not operate within the firewall of the Senate Computer Center, “confidentiality and security are not assured,” the letter says.
So, before using a campaign-funded iPad for official purposes, it might be wise to brush up on the rules on treatment of confidential information and to make sure the iPad is set up appropriately.
Either that, or just stick to games of Angry Birds.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.