Q:
I work for a Member of the House who has decided not to seek re-election this fall and has hand-picked his preferred replacement. Many of the Member’s staffers are supporting the replacement, and I have been working on his campaign. To comply with the rules, I work on the campaign only in my spare time, and I make sure never to use official Congressional resources like phones, office space, etc.

[IMGCAP(1)]Last weekend, I picked up $300 worth of campaign signs for an upcoming fundraiser for the candidate. I paid for the signs myself and was immediately reimbursed from campaign funds when I returned to the campaign office. I didn’t think anything of it at the time, but when the campaign attorney found out about this today, he said that it was illegal for me to pay for the signs. That doesn’t make any sense to me because I was reimbursed. He’s not right, is he?

A: No, he’s not. However, it’s not the reimbursement that makes him wrong. Rather, believe it or not, it is the fact that the campaign is for someone other than your employing Member. In fact, if your Member had not decided to step down and the signs had been for his campaign, it may well have been illegal for you to pay for the signs, even though you were reimbursed.

The federal statute in question is 18 USC § 603, which criminalizes campaign contributions from federal employees to their supervisors. Specifically, the statute makes it a crime for an “officer or employee of the United States” to make a contribution to any federal employee, Senator or Representative “if the person receiving such contribution is the employer or employing authority of the person making the contribution.”

Now, you might be asking yourself what a statute that criminalizes campaign contributions has to do with your situation. Good question. The answer lies in the definition of “contribution.”

For purposes of the statute, “contribution” has the same broad definition as it has throughout the Federal Election Campaign Act. Under that definition, a contribution includes, among other things, any “gift, subscription, advance, or deposit of money … made by any person for the purpose of influencing any election for federal office.” Federal Election Commission regulations provide further detail regarding these definitions.

In the case of an “advance,” the regulations state that, barring an exemption, a payment of money qualifies as a contribution if it is made “by an individual from his or her personal funds … for the costs incurred in providing goods or services” to a candidate or political committee. The regulations provide an exemption where the individual is reimbursed within a certain window of time, but that exemption is explicitly limited to travel and food expenses incurred while traveling on behalf of a campaign. It does not extend to expenses for other campaign goods and services.

In your case, you paid $300 for campaign signs. Under the strict FEC regulations regarding advances, it would be difficult to argue that your payment did not qualify as a contribution at the time you paid for the signs. Therefore, had the campaign been for your Member, the attorney may have been right that it was illegal to front the costs of the signs.

The House Ethics Manual drives home this point. It says that an individual’s outlay on behalf of a campaign qualifies as a campaign contribution “even if it is intended that the campaign will reimburse the individual promptly.” The manual poses an example involving a Member’s campaign that plans to purchase souvenirs to give to the Member’s supporters. The manual states: “An employee of the Member’s congressional office may not purchase the items with her own money … even if the campaign makes arrangements to reimburse her promptly.”

The manual also makes clear that the rules apply to Congressional committee staffers as well. The “employing authority” for such staffers is the committee chairman. In fact, the manual states, if a committee staffer is employed by the minority party, he or she cannot contribute to the ranking member or the chairman.

So, while you are fine in this case, don’t forget that if you do end up working on the campaign of someone who qualifies as your “employing authority,” there are strict rules regarding contributions and advances. Be aware that there will be plenty of temptations to break them. Perhaps, for example, you drive across town in rush-hour traffic to run a campaign errand only to discover that you left the campaign funds needed for the errand back at the campaign office. What to do? Fight back across town to pick up the funds? Or advance the costs and risk breaking the law?

As painful as D.C. traffic can be, the criminal penalties are much worse: up to three years in jail. Although it seems extremely unlikely that a government attorney would prosecute a staffer for such an innocent violation, you wouldn’t want to be the one to find out.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.