FEC Implemented Congress’ Vision on Travel Rules

Posted November 30, 2009 at 2:57pm

Last week, the Federal Election Commission (of which I am currently vice chairman) promulgated a new regulation governing campaign travel on noncommercial aircraft (such as corporate jets). This regulation implements a key provision of the Honest Leadership and Open Government Act of 2007.

Immediately after the travel regulation’s passage, some commentators unleashed a torrent of criticism against those of us who voted in favor of it, accusing us of creating a huge loophole that “guts— or, worse, “emasculates— HLOGA’s travel provision. Contrary to these exaggerated assertions, however, the FEC’s new travel regulation neither opens new loopholes nor vitiates HLOGA’s travel provision but, rather, accurately implements the statutory text written by Congress.

As an initial matter, Congress did not craft HLOGA’s travel provision in a vacuum but did so against the backdrop of the regulatory framework established by the FEC’s 2003 travel rules. Those rules allowed candidates, parties and political committees to pay first-class airfare for most travel on noncommercial aircraft.

Congress was well-aware of this when it considered HLOGA and changed the pre-existing framework to require that some of that travel be paid at the charter rate (which is usually significantly higher than the price of a first-class ticket). Thus, under HLOGA, presidential and Senate candidates and their authorized committees “may not make any expenditure for a flight on an aircraft unless— (1) the flight is operated by a commercial airline or (2) in the case of travel on a noncommercial aircraft, the candidate or the authorized committee pays the charter fare for such flight. HLOGA is even stricter with respect to candidates for the House of Representatives — generally prohibiting them, their authorized committees and their leadership political action committees from making any expenditure for noncommercial travel.

Therefore, the focus of the travel provision is on the identity of the payer, not the identity of the traveler. The commission is unanimous on this point. For example, the alternate rule supported by my dissenting colleagues would have allowed a political party to pay for a House candidate to travel on a noncommercial aircraft on the party’s behalf. By its express terms, HLOGA’s requirements apply only to travel expenditures of federal candidates, their authorized committees, House leadership PACs, and other political committees making in-kind contributions to federal candidates in the form of travel payments. Travel expenditures by parties and other PACs — including expenditures for a candidate to fly on their behalf — do not fall within the ambit of the provision and, thus, continue to be subject to the 2003 travel rules.

Critics of the travel regulation complain that a candidate remains a candidate, whether traveling on behalf of his or her authorized committee or on behalf of some other committee. While true, this is beside the point. Under the statute, the relevant consideration is: Who is making the travel expenditure? If it is a presidential or Senate candidate or that candidate’s authorized committee, then the charter fare must be paid for any noncommercial travel. If it is a House candidate or that candidate’s authorized committee or leadership PAC, then expenditures for noncommercial travel are generally prohibited. For all others, any travel expenditure must be consistent with the pre-existing travel rules.

The critics also fret that the new travel regulation does not apply the charter rate to candidates traveling on behalf of Senate leadership PACs. While I acknowledge there may be reasonable policy arguments for this, the Congressionally enacted text does not bring Senate leadership PACs within its reach. As a commissioner, I cannot ignore that Congress specifically referenced leadership PACs in the language governing House candidates but did not do so in the text pertaining to all other candidates.

When promulgating rules, an agency cannot include in regulation what was not enacted through legislation. Faithfully implementing the statutory language was the guiding principle throughout the travel rule-making. The final regulation passed by the commission achieves that objective.

Matthew Petersen is vice chairman of the Federal Election Commission.