Posted November 20, 2009 by Paul S. Ryan

FEC Ignores Law, Reopens Corporate Jet Travel to Senators

Yesterday the FEC adopted a final rule gutting restrictions on federal candidate air travel, enacted by Congress as part of a sweeping revision of federal ethics laws known as the Honest Leadership and Open Government Act of 2007 (HLOGA).

For years, federal law permitted candidates to fly around the world on corporate and other privately-owned aircraft for the price of a first-class plane ticket.  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.

But Congress ended this practice when it passed HLOGA in 2007, requiring candidates for the office of President or Senate to pay the fair market value of the flight, and prohibiting House candidates outright from flying on noncommercial aircraft.

The statute plainly states: “a candidate for election for Federal office . . . may not make any expenditure for a flight on [a noncommercial] aircraft unless . . . the candidate, the authorized committee, or other political committee pays . . . the pro rata share of the fair market value of the flight . . . .”

Yet the FEC today adopted a final rule nonsensically declaring that a candidate is not a “candidate,” for the purpose of this statute, when that candidate “is traveling on behalf of another political committee (such as a political party committee or Senate leadership PAC).”  Instead, where a candidate claims to be traveling “on behalf of” their own leadership PAC, or one of the many committees controlled by their political party, or any other political committee—the old rules apply, allowing that candidate to pay the price of a commercial air ticket instead of the price of the private plane the candidate is actually flying on.

To make matters worse, FEC Chairman Walther published a statement explaining his decision to provide the necessary fourth vote for the final rule put forth by his three Republican colleagues on the FEC.  Preposterously, Chairman Walther cited comments filed in the rulemaking proceeding by the Campaign Legal Center, together with Democracy 21, suggesting that we support this new rule gutting HLOGA.  Chairman Walther wrote: “The Campaign Legal Center and Democracy 21 agreed and indicated their support for ‘retain[ing] the existing reimbursement rate structure for non-candidate travel.’”  (emphasis added).  While we did support retaining the old rate for non-candidate travel, nowhere in our comments did we suggest that candidates should be considered to be engaging in non-candidate travel through the simple expedient of claiming that they are flying “on behalf of” their leadership PAC or other federal political committee.  Chairman Walther should know better.

Candidate travel is candidate travel—period.

The FEC’s new rule illegally contradicts the plain meaning of the statute.  Unfortunately, gutting or ignoring federal law—that Commissioners would have written differently themselves—has become a recurring habit for the FEC.  In an earlier rulemaking, the FEC gutted the intent of another key aspect of HLOGA, allowing lobbyists to easily evade required reporting of bundled campaign contributions.