Posted November 13, 2007 by Paul S. Ryan

CLC Files Comments in FEC “Candidate Travel” Rulemaking

The Campaign Legal Center, together with Democracy 21, filed comments today in the FEC’s rulemaking to interpret the “candidate travel” provisions of the “Honest Leadership and Open Government Act of 2007”—the ethics and lobbying legislation passed by Congress and signed by the President earlier this year.  At least some of the Commission’s proposed alternatives would gut the provisions by opening broad loopholes for candidates.

The new law provides that a candidate for the office of President or Senate may fly on a non-commercial flight only if the candidate pays “the pro rata share of the fair market value of such flight (as determined by dividing the fair market value of the normal and usual charter fare or rental charge for a comparable plane of comparable size by the number of candidates on the flight).”  Candidates for the House are generally prohibited by the new law from flying on non-commercial flights.  However, the new law contains an exception for flights “on an aircraft owned or leased by the candidate involved or an immediate family member of the candidate.”

Congress’ intent in enacting the new travel restrictions was to end the long-time practice of candidates being subsidized for travel on non-commercial flights through the unsurprising generosity of corporations, wealthy individuals and others.  These benefactors were happy to provide a substantial in-kind benefit to candidates in the form of the convenience and comfort of a private jet made available at the candidates’ disposal at the wildly discounted rate of first-class airfare, and in return to have the candidates’ gratitude, and often their undivided attention during those flights.

Yet several of the Commission’s proposed alternatives for implementing the new law would allow this practice of candidate travel on private airplanes being subsidized by others to continue.  Although the statute clearly requires the candidate’s share the cost of a non-commercial flight to be determined by dividing the fair market value of the flight by “the number of candidates on board,” the Commission proposes at least three methods of calculation that would enable candidates to shift these costs to others.

One proposed interpretation of the new law would, for example, allow candidates to calculate the candidate’s share of a flight cost based on the total number of political committees represented on the flight—which would enable candidates to shift costs to corporate PACs.  Another proposal would allow candidates to calculate their share of the costs based on the total number of passengers on the plane, including non-campaign passengers such as, for instance, corporate executives and enabling candidates to shift their travel costs to these individuals.  A third proposal would allow candidates to base their costs on fair market value of a hypothetical plane capable of carrying the candidate and the candidate’s staff onboard the flight, rather than on the value of the actual plane used by the candidate.  Under this proposal, a candidate could fly on a Boeing 737 with a handful of lobbyists employed by the corporate owner of the plane, while only paying the value of puddle-jumper plane capable of transporting the individual candidate the same distance and shifting the true cost of the 737 to the plane’s owner.

The Legal Center urges the Commission in our comments to reject any and all proposed provisions that would permit candidates to shift any part of the full cost of the non-commercial flight onto the plane’s owner, other political committees, or non-campaign travelers.  Any such rule would contradict and defeat the congressional purpose of ensuring that the entire cost of a charter flight is to be borne by the candidate(s) aboard the flight (or represented on the flight), regardless of who else travels on the plane.

The Commission is holding a hearing in the rulemaking on Thursday at 10 a.m. and has announced that completing the rulemaking quickly is a high priority.  Commission Chairman Robert Lenhard noted in a September press release, “The Commission considers the new law a high priority and is working diligently to implement it.”  We may see the new “candidate travel” rule before the year’s end.