[Federal Register: October 23, 2007 (Volume 72, Number 204)]
[Proposed Rules]
[Page 59953-59967]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc07-10]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 59953]]
FEDERAL ELECTION COMMISSION
11 CFR Parts 100, 113, 9004, and 9034
[Notice 2007-20]
Candidate Travel
AGENCY: Federal Election Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Election Commission requests comments on proposed
changes to its rules implementing new statutory provisions governing
the rates and timing of payment for non-commercial campaign travel on
aircraft, and a proposed definition of ``Leadership PAC.'' These
proposed changes, consistent with the new statutory provisions, would
restrict and in some cases prohibit Federal candidates and their
political committees from expending campaign funds for non-commercial
air travel. The proposed rules would apply to all Federal candidates,
including publicly funded presidential candidates. No final decisions
have been made by the Commission on any of the proposed revisions in
this Notice. Further information is provided in the supplementary
information that follows.
DATES: Comments must be received on or before November 13, 2007. The
Commission will hold a hearing on these proposed rules on November 15,
2007, at 10 a.m. Commenters wishing to testify at the hearing must so
indicate in their written or electronic comments. Anyone seeking to
testify at the hearing must file written comments by the due date and
must include a request to testify in the written comments.
ADDRESSES: All comments must be in writing, must be addressed to Ms.
Amy L. Rothstein, Assistant General Counsel, and must be submitted in
e-mail, facsimile, or paper copy form. Commenters are strongly
encouraged to submit comments by e-mail or fax to ensure timely receipt
and consideration. E-mail comments must be sent to travel07@fec.gov. If
e-mail comments include an attachment, the attachment must be in Adobe
Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments must be
sent to (202) 219-3923, with paper copy follow-up. Paper comments and
paper copy follow-up of faxed comments must be sent to the Federal
Election Commission, 999 E Street, NW., Washington, DC 20463. All
comments must include the full name and postal service address of the
commenter or they will not be considered. The Commission will post
comments on its Web site after the comment period ends. The Commission
hearing on this rulemaking will be held in the Commission's ninth floor
meeting room, 999 E Street, NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant
General Counsel, Mr. Joshua S. Blume, Attorney, or Mr. Richard Ewell,
Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or
(800) 424-9530.
SUPPLEMENTARY INFORMATION: The Commission is proposing changes to its
rules to implement section 601 of Pub. L. 110-81, 121 Stat. 735, the
``Honest Leadership and Open Government Act of 2007,'' signed September
14, 2007. The new law amended the Federal Election Campaign Act of
1971, as amended (2 U.S.C. 431 et seq.) (``the Act'') by restricting,
and in some cases prohibiting, the expenditure of campaign funds by
candidates for Federal office for non-commercial travel aboard
aircraft. See 2 U.S.C. 439a(c) (henceforth referred to as ``new 2
U.S.C. 439a(c)'' or ``the new law'').
The Commission proposes to implement these new provisions by adding
new section 11 CFR 113.5 to Part 113, which governs the expenditure of
campaign funds by candidates for Federal office and their authorized
political committees. In addition, the Commission is proposing
conforming revisions to 11 CFR 100.93, which provides an exception to
the definition of ``contribution'' for non-commercial travel aboard
aircraft by, or on behalf of, Federal candidates and political
committees, if the candidates and political committees reimburse the
service providers at specified rates. With respect to the scope of the
proposed changes, the Commission presents two alternatives. Under
Alternative 1, the proposed changes would also affect travel by other
persons, such as a staff member of a political party committee,
separate segregated fund (``SSF''), or nonconnected political
committee, if they are not traveling on behalf of a specific candidate.
Under Alternative 2, the proposed changes would affect only candidates
for Federal office and those traveling on behalf of a candidate for
Federal office and his or her authorized committee. The proposed
changes would not alter the Commission's treatment of travel by means
of transportation other than aircraft, or on travel aboard commercial
airliners or charter flights.
In addition, Congress defined the term ``Leadership PAC'' in
section 204(8)(B) of Public Law 110-81. This type of political
committee is subject to certain restrictions under the provisions of
new 2 U.S.C. 439a(c), and is also subject to certain requirements set
forth in another section of Public Law 110-81 pertaining to the
practice of ``bundling'' contributions. See section 204 of Public Law
110-81. The Commission is therefore proposing that the term be defined
in the Commission's regulations at 11 CFR 100.5(e) (examples of
``political committees'').\1\
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\1\ The Commission is initiating a separate rulemaking to
address the bundling provisions of the new law and intends to issue
a Notice of Proposed Rulemaking shortly.
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I. Background
A. The Current Statutory and Regulatory Framework
The Act defines a ``contribution'' to include ``any gift,
subscription, loan, advance, or deposit of money or anything of value
made by any person for the purpose of influencing any election for
Federal office.'' 2 U.S.C. 431(8)(A)(i); see also 11 CFR 100.52(a). The
phrase ``anything of value'' encompasses ``the provision of any goods
or services without charge or at a charge that is less than the usual
and normal charge for such goods or services.'' 11 CFR 100.52(d)(1).
When goods or services are provided at less than the usual and normal
charge, ``the amount of the in-kind contribution is the difference
between the usual and normal charge for the goods or services at the
time of the contribution and the amount charged the political
committee.'' Id.
As a result, candidates who travel aboard a commercial airliner or
other conveyance for which a fee is normally
[[Page 59954]]
charged must pay the normal and usual charge for that service in order
to avoid receiving an in-kind contribution from the person providing
the travel service. Such in-kind contributions would be prohibited if
provided by certain entities, including corporations, labor
organizations, Federal contractors, and foreign nationals. See 2 U.S.C.
441b, 441c, and 441e; 11 CFR 110.20, 114.2(b), and 115.2. Even where
the in-kind contributions are not prohibited, they would be subject to
the contribution limits in the Act and Commission regulations. See 2
U.S.C. 441a through 441k; 11 CFR Parts 110, 114, and 115.
1. Current 11 CFR 100.93--Payment for Non-Commercial Travel
The normal and usual charge for travel aboard a commercial airliner
is the publicly available price for a ticket, and the normal and usual
charge for a chartered jet is the publicly available charter or lease
rate. The normal and usual charge for travel aboard a non-commercial
flight, however, may not be as apparent. For example, there is
generally not a ticket price for a seat aboard a corporate jet that is
operated exclusively for the private travel of the corporation's
executives and their guests. Because candidates for Federal office have
traveled in the past on these privately operated flights, the
Commission has provided specific guidance in its regulations regarding
the rate of reimbursement that candidates and others must pay to avoid
receiving an in-kind contribution for travel aboard such flights.
On December 15, 2003, the Commission promulgated final rules adding
11 CFR 100.93. See Final Rules and Explanation and Justification for
Travel on Behalf of Candidates and Political Committees, 68 FR 69,583
(Dec. 15, 2003) (``2003 E&J''). Those final rules established an
exception from the definition of contribution for payments at specified
rates for non-commercial travel in connection with a Federal election.
The payment required for non-commercial air travel by ``campaign
travelers''--a term that includes individuals traveling in connection
with elections for Federal office on behalf of candidates or political
committees, and members of the news media traveling with a candidate--
depends on whether the travel is between cities served by regularly
scheduled commercial airline service, and whether that service is
available at a first-class or coach rate. See 11 CFR 100.93(a)(3)(i)
and 100.93(c). If travel between the origin and destination cities is
regularly served by commercial first-class airline service, then a
first-class rate applies. 11 CFR 100.93(c)(1). If such travel is served
at both origin and destination by coach-class commercial service and
the origin city is not served by first-class service, then a coach-
class rate applies. 11 CFR 100.93(c)(2). If either the origin or the
destination city is not served by commercial airline service, then the
rate is the normal and usual charter fare for a comparable airplane
sufficient in size to accommodate all campaign travelers. 11 CFR
100.93(c)(3). The same rates apply to travel on an airplane provided by
a government entity, unless the travel is to or from a military base or
other relatively publicly inaccessible location.\2\ The candidate or
political committee responsible for the reimbursement must pay the
service provider within seven business days of the trip. 11 CFR
100.93(c).
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\2\ If such is the case, then a first-class rate applies, drawn
from the closest city with regular first-class commercial service.
11 CFR 100.93(e)(1).
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2. Current 11 CFR 9004.7 and 9034.7--Travel by Presidential and Vice-
Presidential Candidates Accepting Public Funds
Candidates for President of the United States may elect to receive
matching funds from the Federal government to contest their primary
elections and presidential nominees may elect to receive public funding
to contest the general election. In both cases, the candidates must
agree, among other things, to use the public funds they receive solely
for ``qualified campaign expenses'' and not to exceed specified
expenditure limits. 2 U.S.C. 441a(b)(1)(A) and (B), 26 U.S.C.
9004(c)(1), 9038(b)(2).
The Commission has promulgated separate regulations at 11 CFR
9004.7(b)(5)(i) and (v), (b)(8), and 9034.7(b)(5)(i) and (v) and
(b)(8), setting forth the appropriate reimbursement rates that publicly
funded candidates must use for campaign-related travel on non-
commercial transportation. While 11 CFR 100.93 is focused on the
potential underpayment for travel resulting in a contribution, 11 CFR
9004.7 and 9034.7 are focused on the appropriate use of public funds,
and thus on whether, and to what extent, expenses for campaign-related
travel constitute qualified campaign expenses for which the candidate
may use public funds. The rates and recordkeeping requirements for
presidential and vice-presidential candidates accepting public funds
are the same as those in 11 CFR 100.93 and are mainly set forth through
cross-references to 11 CFR 100.93.
II. Revisions to 2 U.S.C. 439a--Use of Campaign Funds
New 2 U.S.C. 439a(c) prohibits House, Senate, and presidential
candidates from making any expenditure for non-commercial travel on
aircraft except at specified rates and subject to certain conditions.
An ``expenditure'' includes any payment by any person ``made for the
purpose of influencing any election for Federal office.'' 2 U.S.C.
431(9)(A)(i). Like the current regulations at 11 CFR 100.93, the new
law focuses on the appropriate reimbursement rates for non-commercial
travel. Travel on commercial flights is still governed by the current
requirements for reimbursement at the normal and usual charge. The new
law, however, directly limits expenditures by a candidate, candidate's
authorized committee, or a leadership PAC, rather than merely
specifying how to avoid the receipt of an in-kind contribution as in 11
CFR 100.93.
The new law's rates and conditions under which candidates may spend
campaign funds for aircraft travel differ depending on the office
sought. Presidential and Senate candidates may pay for their pro rata
share of the fair market value of a flight, which is 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 board the plane. 2 U.S.C. 439a(c)(1). The authorized
committees and leadership PACs of House candidates are, however,
generally prohibited from using any campaign funds to pay for non-
commercial flights, except for flights on aircraft operated by a
Federal or State government entity. 2 U.S.C. 439a(c)(2). Aircraft owned
by candidates or their immediate family members are exempt from the
prohibitions and rate requirements described above. 2 U.S.C.
439a(c)(3).
III. Proposed 11 CFR 100.5(e)(6)--Definition of ``Leadership PAC''
The term ``Leadership PAC'' is defined in section 204(a) of Public
Law 110-81 (2 U.S.C. 434(i)(8)(B)) as ``a political committee that is
directly or indirectly established, financed, maintained or controlled
by [a] candidate [for Federal office] or [an] individual [holding
Federal office] but which is not an authorized committee of the
candidate or individual and which is not affiliated with an authorized
committee of the candidate or individual, except that such term does
not include a political committee of a political party.'' The term
``PAC'' is an
[[Page 59955]]
acronym for ``political action committee,'' which is a term generally
used to refer to all political committees other than authorized
committees and committees of a political party.\3\
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\3\ The term ``PAC'' has not been a term of art in the law or in
Commission regulations. PACs sponsored by a corporation or a labor
organization are generally described in the Commission's regulations
as separate segregated funds (``SSFs''). See 2 U.S.C. 441b(b)(2)(C);
11 CFR 100.5(b). PACs that lack corporate or labor sponsorship are
referred to in the regulations as ``nonconnected committees.'' See,
e.g., 11 CFR 104.10 and 106.6(a).
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The new definition of leadership PAC is relevant to two areas of
the new law that fall within the Commission's purview: (1) The new
restrictions on candidate travel that would be implemented through both
proposed sections 11 CFR 100.93 and 113.5, and (2) the disclosure
requirements in Section 204 of the new law for contributions bundled by
lobbyists. In the provision relevant to this rulemaking, the new law
generally prohibits ``candidates for election for the office of
Representative in, or Delegate or Resident Commissioner to, the
Congress, an authorized committee and a leadership PAC'' from making
expenditures for non-commercial air travel. Public Law 110-81, section
601(a) (codified at 2 U.S.C 439a(c)(2)) (emphasis added).
The Commission proposes to incorporate a definition of ``leadership
PAC'' into 11 CFR 100.5, which is the general definition of ``political
committee.'' Specifically, ``leadership PAC'' would be added to the
list of different types of political committees in 11 CFR 100.5(e),
with the new term added at 11 CFR 100.5(e)(6). The proposed definition
mirrors the definition in the new law.
The Commission proposes to incorporate the definition of
``leadership PAC'' into the general definition section in 11 CFR Part
100, rather than within the travel rules themselves, to promote
consistency and economy within the structure of its regulations.
The definition will impact several sections of the Commission's
regulations, including proposed 11 CFR 100.93, 11 CFR 113.5, and the
new bundling regulations the Commission intends to promulgate in a
separate rulemaking. The Commission seeks comments on the content and
placement of this new definition.
IV. Proposed Revisions to 11 CFR 100.93--Payment for Travel Aboard
Aircraft and Other Means of Transportation
The majority of the Commission's current guidance regarding non-
commercial air travel is provided in 11 CFR 100.93, which provides an
exception to the definition of ``contribution'' for non-commercial
travel if the service provider is reimbursed for the travel at the
specified rates. Several of the reimbursement rates permitted under
current 11 CFR 100.93 are inconsistent with the new statutory
requirements. For example, the statute requires a candidate for
President or U.S. Senate to reimburse the service provider at the
comparable charter rate, whereas current 11 CFR 100.93 allows
reimbursement at the rate of the first class or coach airfare for
campaign travel between two cities served by regularly scheduled
commercial airline service. Therefore, the Commission is proposing
conforming changes and clarifications in 11 CFR 100.93.
The Commission wishes to clarify that, although it is proposing
changes to only some of the provisions in 11 CFR 100.93, it may make
further revisions to this section in its final rules, in response to
any public comments and additional information that it may receive
regarding the proposed rules. The Commission therefore invites comments
on the entirety of 11 CFR 100.93 and is opening the entire section for
comments through this Notice of Proposed Rulemaking. Commenters
favoring retention of current provisions of 11 CFR 100.93 should submit
comments to that effect. Conversely, those preferring additional
changes to 11 CFR 100.93 beyond those proposed should submit comments
to that effect. In particular, the Commission seeks comments on the
extent to which new 2 U.S.C. 439a(c) should be implemented solely
through revisions to 11 CFR 100.93, rather than through the addition of
11 CFR 113.5.
a. General Scope of Rule--Travel on Behalf of Candidates
New 2 U.S.C. 439a specifies that ``a candidate for election for
Federal office * * * or any authorized committee of such a candidate,
may not make any expenditure for a flight on an aircraft unless--* *
*'' 2 U.S.C. 439a(c)(1) (emphasis added). Given the inclusion of
authorized committees in this language, the proposed rule, consistent
with the current rule, would apply to the same range of individuals
covered by the term ``campaign traveler'' in the current rule. Campaign
traveler is defined in part as ``any individual traveling in connection
with an election for Federal office on behalf of a candidate.'' 11 CFR
100.93(3)(i)(A). In other words, the proposed rule would apply to
travel by candidates themselves, and also those traveling on behalf of
candidates or their authorized committees, such as campaign staff. See
proposed 11 CFR 100.93(c)(1).
This interpretation is also consistent with the personal use
prohibitions set out by Congress in 2 U.S.C. 439a(b) and the
Commission's regulatory interpretation of that section, which apply to
personal use by ``any person.'' See, e.g., 11 CFR 113.1(g) (defining
personal use as ``any use of funds in a campaign account of a present
or former candidate to fulfill a commitment, obligation or expense of
any person that would exist irrespective of the candidate's campaign or
duties as a Federal officeholder'') (emphasis added); see also
Explanation and Justification for final rules regarding Expenditures;
Reports by Political Committees; Personal Use of Campaign Funds, 60 FR
7862, 7864 (Feb. 9, 1995) (``Section 439a states that no campaign funds
`may be converted by any person to any personal use.' ''). Thus, any
use of campaign funds that would exist irrespective of the campaign or
the duties of a Federal officeholder is personal use under current
Commission regulations, regardless of whether the beneficiary is the
candidate, a family member of the candidate, or some other person.
Moreover, the Commission notes that Congress, in its amendments to
the Senate rules, set out an approach to reimbursement for non-campaign
travel that includes all Congressional staff, not just the Federal
officeholders themselves. That amendment requires reimbursement for
non-commercial travel aboard aircraft at the normal and usual charter
rate for a comparable aircraft of comparable size, ``as determined by
dividing such cost by the number of Members, officers, or employees of
Congress on the flight.'' Public Law 110-81, Section 544(c)(1),
amending Paragraph 1(c)(1) of rule XXXV of the Standing Rules of the
Senate (emphasis added).
The Commission seeks comments on this proposed interpretation of
the new law. Is there any evidence that suggests that Congress intended
to exclude campaign staff, or others traveling on the candidate's
behalf, from the general scope of the rule?
A. Proposed 100.93(a)--Scope and Definitions
1. Proposed 11 CFR 100.93(a)(3)(i)--Definition of ``Campaign Traveler''
A ``campaign traveler'' is defined as ``[a]ny individual traveling
in connection with an election for Federal office on behalf of a
candidate or political committee'' and ``[a]ny member of the news media
traveling with a
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candidate.'' 11 CFR 100.93(a)(3)(i). The Commission proposes to add
``Any candidate for Federal office or'' at the beginning of that
definition to clarify that a candidate himself or herself would be
included within the definition of ``campaign traveler.'' The Commission
seeks comments on this proposed clarification and whether any
additional changes to the definition would be appropriate.
2. Proposed 11 CFR 100.93(a)(3)(iv) and (v)--Definitions of
``Commercial Travel'' and ``Non-Commercial Travel''
The Commission's current regulations distinguish between commercial
and non-commercial air travel based on the certification system of the
Federal Aviation Administration (FAA). Specifically, the Commission's
rules in 11 CFR 100.93 apply to all airplanes not licensed by the FAA
to operate for compensation or hire under 14 CFR parts 121, 129, or
135. 11 CFR 100.93(a)(1)(i).
The new law's restrictions on expenditures for air travel by
presidential and U.S. Senate candidates are focused on the FAA's
certification and safety requirements, but do not reference specific
FAA regulatory provisions. In order to simplify and align the
Commission's regulations with the new statutory language, the
Commission is proposing to replace its reliance on specific FAA
regulatory provisions with the new terms ``commercial travel'' and
``non-commercial travel.'' The definition of ``commercial travel''
would follow the new statutory language: travel aboard an aircraft
``operated by an air carrier or commercial operator certificated by the
Federal Aviation Administration if the flight is required to be
conducted under air carrier safety rules, or, in the case of travel
which is abroad, by an air carrier or commercial operator certificated
by an appropriate foreign civil aviation authority if the flight is
required to be conducted under air carrier safety rules.'' Proposed 11
CFR 100.93(a)(3)(iv). Conversely, the proposed definition of ``non-
commercial air travel'' would encompass travel not included in the
definition of ``commercial travel.'' Proposed 11 CFR 100.93(a)(3)(v).
The Commission seeks comments on these proposed definitions. Is
there any difference between the universe of aircraft encompassed by
the new term ``non-commercial travel'' and the aircraft included in
current 11 CFR 100.93(c) (``an airplane not licensed by the Federal
Aviation Administration to operate for compensation or hire under 14
CFR parts 121, 129, or 135'')? Would additional guidance in the form of
references to FAA regulatory provisions be helpful in discerning what
aircraft qualify as ``non-commercial travel,'' or is the proposed
language sufficiently clear? In addition, the Commission seeks comments
on whether additional explanation should be provided to address flights
conducted in foreign countries and, if so, what it should be.
The Commission also seeks comments on whether the definitions of
``commercial travel'' and ``non-commercial travel'' should specifically
address more complex multiple ownership or leasing arrangements, such
as arrangements in which some of the owners of an aircraft are
commercial operators certificated by the FAA but others are not.
B. Proposed 11 CFR 100.93(c)(1)--Non-Commercial Air Travel by
Candidates for President, Vice-President, and U.S. Senate
New 2 U.S.C. 439a(c)(1)(B) requires candidates for President, Vice
President, and U.S. Senate to pay their ``pro rata share of the fair
market value'' of non-commercial flights aboard aircraft. The pro rata
share is ``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.'' Id.
Because the statutory language is specific that the ``number of
candidates on the flight'' determines the ``pro rata share,'' the
Commission proposes to define ``pro rata share of the fair market value
of a flight'' based solely on the number of candidates on the flight,
regardless of whether there are other campaign travelers or passengers
aboard. Moreover, because the statutory language applies to
expenditures made not only by candidates, but also by authorized
committees, the Commission proposes to define ``pro rata share'' based
on the number of candidates represented on a flight. See proposed 11
CFR 100.93(c)(1) and (3). A candidate is represented on a flight if a
person is traveling on behalf of that candidate, the candidate's
authorized committee, or the candidate's leadership PAC.\4\ See
proposed 11 CFR 100.93(c)(1). This reimbursement rate does not apply to
travel aboard government aircraft or aircraft owned by a candidate or a
member of candidate's immediate family, which are covered under
proposed section 100.93(e) and (g), respectively, and discussed below.
See subsections F and G of this section. This reimbursement rate also
would not apply when a candidate or representative of the candidate is
traveling on behalf of another committee (such as a political party
committee), rather than on behalf of the candidate's own campaign.
Reimbursement for a candidate's travel on behalf of another committee
is the responsibility of the committee on whose behalf the travel
occurs, at the appropriate reimbursement rate for that committee as set
forth in proposed 11 CFR 100.93(c).
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\4\ See discussion of leadership PACs in subsection E.4 of this
section.
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1. Application of Proposed Rule
Candidate A, Candidate B, and Candidate B's campaign manager travel
on a plane on behalf of their respective campaigns, along with PAC
Representative P traveling on behalf of the PAC. The pro rata share of
the fair market value of the flight would be determined by dividing the
normal and usual charter rate for the plane by two because there are
two candidates represented on the flight (Candidate A and B). Each
candidate, or the candidate's authorized committee, would therefore be
required to pay 50% of the charter rate to avoid receiving an in-kind
contribution from the non-commercial aircraft's owner. Because the full
costs of the flight would be reimbursed by the candidate travelers
(i.e., Candidate A and Candidate B), and the candidate committees would
fully compensate the aircraft's owner for the costs of the flight, PAC
Representative P's travel would not need to be reimbursed. The
Commission invites comment on whether this result--PAC Representative P
traveling without paying fair market value for the cost associated with
her travel--should be treated as an in-kind contribution to the PAC
from one or more of the candidates paying for the cost of the flight.
If so, what would the value be? If the value of the travel by a non-
candidate traveler is a reportable expenditure by one or more of the
candidates when the non-candidate traveler is the representative of a
political committee, should the expenditure also be a reportable
expenditure if the non-candidate traveler is not a political committee
representative? Does it matter whether the non-candidate traveler is
traveling at the invitation of one of the candidates or at the
invitation of the service provider?
Repayment under the proposed rule would not vary based on the
number of non-campaign travelers on the plane. For example, Candidate
A, Candidate B, Candidate B's campaign manager and PAC Representative P
travel on a twenty-seat plane with six other
[[Page 59957]]
passengers that are not campaign travelers. Candidate A and Candidate B
would still be required to pay 50% each of the entire normal and usual
charter fare or rental charge for a ``comparable plane'' seating twenty
passengers. Because the candidate committees would fully compensate the
aircraft's owner for the costs of the flight, PAC Representative P and
the six additional travelers would not be required to provide
reimbursement.
2. Per Represented Committee Alternative
As an alternative, the Commission proposes requiring reimbursement
based on the number of represented committees of any type, rather than
the number of represented candidates or candidate committees. The
Commission proposes two variations of this alternative.
(a) For example, Candidate A, Candidate B, and Candidate B's
campaign manager travel on a plane on behalf of their respective
campaigns, along with PAC Representative P traveling on behalf of the
PAC. The pro rata share of the fair market value of the flight would be
determined by dividing the normal and usual charter rate for the plane
by three because there are three represented committees on the flight
(Candidate A, Candidate B, and PAC). Each committee would be required
to pay 33% of the charter rate to avoid receiving an in-kind
contribution from the aircraft's owner.
(b) Using the same hypothetical situation set forth above, PAC
Representative P would then have the option of paying either 33% of the
calculated charter rate, or the amount that would be required under
current 11 CFR 100.93.
3. Per Passenger Alternative
As an alternative, the Commission proposes requiring reimbursement
only for the portion of the normal and usual charter rate that reflects
the number of candidate representatives as a percentage of all
passengers on the aircraft.
For example, Candidate A, Candidate B, and Candidate B's campaign
manager travel on a plane on behalf of their respective campaigns,
along with PAC Representative P traveling on behalf of the PAC. The pro
rata share of the fair market value of the flight would be determined
by dividing the normal and usual charter rate for the plane by four
because there are four passengers on the flight. Each passenger would
therefore be required to pay \1/4\, or 25%, of the charter rate to
avoid receiving a contribution. Candidate A and PAC, with one passenger
each, would pay 25% each, while Candidate B, with two passengers would
be responsible for 50% of the charter rate.
Under this alternative, the repayment would also vary based on the
number of non-campaign travelers on the plane. For example, Candidate
A, Candidate B, Candidate B's campaign manager, and PAC Representative
P travel on a twenty-seat plane with six other passengers who are not
candidates or are not traveling on behalf of candidates. Because
Candidate A was only one passenger among ten, Candidate A would be
required to pay 10% of the normal and usual charter fare or rental
charge for a ``comparable plane'' seating twenty passengers. Candidate
B, with two passengers, would pay 20%, and PAC, with one passenger,
would pay 10%.
4. Comparable Aircraft Alternative
As a further alternative, the Commission proposes to follow the
approach in its current regulations and permit reimbursement at the
normal and usual charter rate or rental charge for an aircraft of
sufficient size to carry the campaign travelers. See current 11 CFR
100.93(c)(3) (requiring reimbursement of ``the normal and usual charter
fare or rental charge for a comparable commercial airplane of
sufficient size to accommodate all campaign travelers''). Under this
approach, the campaign committee would be responsible for paying the
normal and usual charter rate for a plane of sufficient size to seat
its campaign travelers, rather than the rate for a plane comparable (in
terms of seating capacity) to the one flown. For example, Candidate A,
Candidate B, Candidate B's campaign manager, and PAC Representative P
travel on a twenty-seat plane with six other passengers who are not
candidates and are not traveling on behalf of candidates. Under this
approach, Candidate A, Candidate B, Candidate B's campaign manager, and
PAC Representative P would collectively be responsible for reimbursing
the aircraft's owner an amount equivalent to the normal and usual
charter fare or rental charge for a ``comparable plane'' that could
seat four passengers. Each candidate or committee must pay its pro rata
share of that amount.
Under a variation of this alternative, each campaign traveler would
be required to pay the normal and usual charter fare or rental charge
for a ``comparable plane'' able to accommodate only himself and those
traveling on his behalf. Thus, Candidate A would be required to pay the
normal and usual cost of a ``comparable plane'' that can seat one
passenger. Similarly, Candidate B would be required to pay the normal
and usual cost of a ``comparable plane'' that can seat two passengers.
The Commission seeks comments on this approach and the presented
alternatives. In addition, the Commission seeks comments on any other
calculations that might be more appropriate.
C. Proposed 11 CFR 100.93(c)(2)--Non-Commercial Air Travel by
Candidates for the House of Representatives
New 2 U.S.C. 439a(c)(2) states that ``in the case of a candidate
for election for the office of Representative in, or Delegate or
Resident Commissioner to, the Congress [hereinafter ``House
candidates''], an authorized committee and a leadership PAC of the
candidate may not make any expenditure'' for non-commercial air travel,
with exceptions for travel on government airplanes and aircraft owned
by the candidate or members of the candidate's immediate family. Both
exceptions are discussed below. The effect of this provision is
generally to prohibit travel by House candidates on non-commercial
aircraft. Proposed 11 CFR 100.93(c)(2)(i) would reflect new 2 U.S.C.
439a(c)(2) by prohibiting expenditures by House candidates for non-
commercial travel on behalf of that candidate, the candidate's
authorized committee, or the candidate's leadership PAC. The new law
expressly applies to expenditures by authorized committees and
leadership PACs of House candidates, including expenditures made by the
candidates themselves on behalf of their authorized committees.
Proposed 11 CFR 100.93(c)(2) would apply not only to House candidates,
but also to persons traveling on behalf of such candidate, the
candidate's authorized committee, or the candidate's leadership PAC.
This prohibition does not apply when the travel would not be considered
an expenditure by the candidate, candidate's authorized committee, or
candidate's leadership PAC. For example, travel by a House candidate on
behalf of a non-House candidate, party committee, or non-candidate
committee would be required to be reimbursed by such other committee at
the respective rate set forth for travel on behalf of that candidate or
committee. The Commission seeks comment on this approach.
The Commission seeks comments on the treatment of House candidate
travel in proposed 11 CFR 100.93(c)(2). Should House candidates be
permitted to travel on non-commercial aircraft on
[[Page 59958]]
behalf of their own campaigns if the cost of the travel is provided as
a permissible in-kind contribution? For example, if the travel was
provided by a permissible source and the costs of the travel were below
the contribution limit, should a non-candidate committee be able to
reimburse the travel costs as an in-kind contribution to the candidate?
The proposed expenditure regulations, discussed below, prohibit such
in-kind contributions. See proposed 11 CFR 113.5(b). If in-kind
contributions are allowed, at what rate should their value be
calculated for reimbursement and reporting purposes?
D. Proposed 11 CFR 100.93(c)(3)--Non-Commercial Air Travel by Other
Campaign Travelers
The Commission proposes two alternatives with respect to non-
commercial air travel by non-candidate campaign travelers.
Alternative 1
The Commission notes that the non-candidate reimbursement rate is
not addressed in new 2 U.S.C. 439a(c).\5\ These proposed changes are
intended to promote uniformity and simplicity in the regulation, and
make the regulation easier to understand. The Commission's long-
standing travel regulations addressed travel only by candidates or on
behalf of candidates. See former 11 CFR 114.9(e). In 2003, the
Commission extended its travel regulations to cover all travel in
connection with a Federal election, stating, ``By establishing a single
rate for travel reimbursement, the new rules will promote greater
uniformity among all individuals traveling in connection with a Federal
election on behalf of a political committee.''
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\5\ The statute does address payments by political committees
other than authorized committees in describing the reimbursement
rate for Senate, Vice Presidential, and Presidential candidates. See
2 U.S.C. 439a(c)(1)(B) (``the candidate, the authorized committee,
or other political committee pays * * *'') (emphasis added).
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Against this background, as one alternative, the Commission is
proposing changes to the current reimbursement rate for campaign
travelers who are not traveling on behalf of candidates. For example,
this rate would apply to individuals traveling on behalf of a political
party committee, SSF, or nonconnected committee. Under the proposed
rule, the provider must be reimbursed at the pro rata share of the fair
market value of such travel. Proposed 11 CFR 100.93(c)(3). The pro rata
share is based on the number of different committees represented on the
flight, and is calculated in the same manner as reimbursement for
travel on behalf of Senate, Vice Presidential, or Presidential
candidates under proposed 11 CFR 100.93(c)(1). For example, if a non-
commercial flight carried two PAC A campaign travelers and one PAC B
campaign traveler, each PAC would be responsible for 50% of the fair
market value of the flight.
This rate does not apply when the travel is shared with a candidate
or person traveling on behalf of a candidate. The Commission is
proposing this alternative to avoid permitting outside organizations to
subsidize a candidate's travel. Travel on an aircraft that includes a
campaign traveler flying on behalf of a candidate, candidate's
authorized committee, or candidate's leadership PAC, must be fully
reimbursed by that candidate, candidate's committee or, when
permissible, the candidate's leadership PAC. No reimbursement would be
required by the non-candidate travelers. See proposed 11 CFR
100.93(c)(3). For example, if a non-commercial flight carried two PAC A
campaign travelers, one PAC B campaign traveler, and Senator A,
traveling on behalf of his or her campaign, Senator A or Senator A's
campaign committee would be responsible for the full fair market value
of the flight. PAC A and PAC B would not have to reimburse for the
flight costs.
The Commission invites comment on whether this result should be
treated as an in-kind contribution to the PACs from Senator A. Does it
matter whether or not the non-candidate travelers are representatives
of political committees? If the value of the travel by the non-
candidate travelers is a reportable expenditure by Senator A when the
non-candidate travelers are political committee representatives, should
the expenditure also be a reportable expenditure if the non-candidate
travelers are not political committee representatives? Does it matter
whether the non-candidate travelers are traveling at the invitation of
Senator A or at the invitation of the service provider?
Alternative 2
Under this alternative, the Commission proposes to retain the
existing reimbursement rate structure for non-candidate travel. Because
non-candidate travel is not addressed in the new law, the existing rate
structure would remain the same for all campaign travelers not
traveling on behalf of a candidate or that candidate's authorized
committee (i.e., campaign travelers traveling on behalf of political
party committees, SSFs, and other non-authorized committees). The
Commission notes that this might result in the service provider being
paid more than the fair market value of the flight. Does the
possibility of such ``overcompensation'' to the service provider
represent a concern under FECA? And, if so, in what way?
The Commission seeks comment on this approach. Should the
Commission interpret the fact that new 2 U.S.C. 439a(c) does not
address non-candidate travel as a form of legislative acquiescence to
the Commission's current regulations on non-candidate travel
reimbursement? Do the first class and coach air fare rates reflect the
fair market value of the services provided? Should the Commission adopt
a different reimbursement rate for non-candidate travel, such as the
per committee or per passenger alternatives discussed above?
E. Additional Proposed Revisions to 11 CFR 100.93
1. Members of the Media and Security Personnel
Members of the news media ``traveling with a candidate'' for
Federal office are expressly included within the definition of
``campaign traveler'' in the Commission's current rules. See 11 CFR
100.93(a)(3)(i)(B). The Commission is not proposing changes to this
definition. Under the current rules, when a member of the media is
traveling with a candidate, that candidate's committee is ultimately
responsible for paying the service provider for the full costs of the
travel, but may seek reimbursement from the media for the media's
portion of the travel expenses.\6\ The Commission proposes to revise 11
CFR 100.93(b)(1)(iii) to ensure that members of the media would not be
permitted to relieve the candidates with whom they travel from
responsibility for paying the service provider the full normal and
usual charter rate or rental charge for travel on an aircraft, pursuant
to proposed 11 CFR 100.93(c)(1). Members of the media would still be
permitted to reimburse the service provider for travel on conveyances
other than aircraft. The Commission seeks comments on this approach.
Should the Commission instead continue to allow reimbursement from
members of the
[[Page 59959]]
media for travel on aircraft? At what rate should this reimbursement
take place, for example, should it be calculated at a portion of the
charter rate or at a first class rate?
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\6\ ``If a member of the news media elects to have the
candidate's authorized committee pay for the media's travel rather
than paying the service provider directly, he or she may do so and
the candidate's authorized committee is permitted to seek
reimbursement from the media. Ultimately it is the candidate's
responsibility to ensure that the service provider is reimbursed for
the value of the transportation provided to all persons traveling
with the candidate.'' 2003 E&J at 69586. See also 11 CFR 9004.6 and
9034.6.
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Security personnel are treated differently under the Commission's
current rules. Under the current rules, security personnel are not
necessarily considered ``campaign travelers,'' but could qualify as
such depending on the nature of any additional services that they
provide a candidate. Compare 11 CFR 100.93(a)(3)(i)(A) with
100.93(c)(3) and (d). For example, if Secret Service personnel travel
with a candidate for Federal office to the candidate's fundraiser
aboard a government airplane, the candidate's authorized committee
would not be required to pay for the Secret Service member's travel
under the current rules unless the Secret Service agent otherwise
qualified as a campaign traveler or the flight was required to be
reimbursed at the usual charter rate. See current 11 CFR 100.93(c)(3)
(calculation of the usual charter rate requires ``comparable commercial
conveyance of sufficient size to accommodate all campaign travelers * *
* and security personnel'') (emphasis added) and 11 CFR
100.93(e)(1)(ii). Committees can then seek reimbursement from the
Secret Service for their portion of the travel expenses. See, e.g.,
Advisory Opinion 1992-38 (Clinton/Gore) (loan proposal premised on
reimbursement from the Secret Service); see also 11 CFR 9004.6 and
9034.6.
Under the proposed rules, when security personnel travel with a
candidate or person traveling on behalf of a candidate, that
candidate's committee would be responsible for the full costs of the
travel. See proposed 11 CFR 100.93(c)(1). However, if the travel occurs
on a government aircraft, the security personnel would not be included
in the calculation. See proposed 11 CFR 100.93(e)(1). Should the
Commission allow reimbursement from security personnel for travel on
non-commercial, non-governmental aircraft? At what rate should this
reimbursement take place, for example, should it be calculated at a
portion of the charter rate or at a first class rate? Under current
regulations, how and under what circumstances do committees seek
reimbursement for travel expenses from the U.S. Secret Service?
2. ``Comparable Plane of Comparable Size''
New 2 U.S.C. 439a(c)(1)(B) requires that the candidate or the
candidate's authorized committee use the fair market value of a
``comparable plane of comparable size'' for purposes of calculating the
appropriate charter rate. The Commission interprets ``comparable size''
as an aircraft with similar physical dimensions that is able to carry a
similar number of passengers.\7\
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\7\ The Commission's current rules at 11 CFR 100.93 distinguish
between travel aboard an ``airplane'' and travel aboard all other
conveyances, including helicopters. See 11 CFR 100.93(a)(3)(ii)
(definition of ``service provider'' focuses on ``person who makes
the airplane or other conveyance available''), 11 CFR 100.93(c)
(``travel by airplane'') and 11 CFR 100.93(d) (``other means of
transportation'' includes ``any other means of transportation'' and
specifically lists helicopters). For internal consistency and to
promote uniformity within its regulations and avoid confusion, the
Commission proposes to replace all references to ``airplanes'' in 11
CFR 100.93 with ``aircraft.'' The primary impact would be that
travel aboard a helicopter would be reimbursed at the pro rata share
of the fair market value of the flight.
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The Commission interprets ``comparable plane'' as an aircraft of
similar make and model as the airplane that actually makes the trip,
with the same amenities as that airplane. This interpretation is
consistent with the Commission's current interpretation of a similar
term, ``comparable commercial airplane,'' in the current rules. See 11
CFR 100.93(c)(3); see also proposed 11 CFR 100.93(c)(3)(iii). As
explained in the 2003 E&J:
a ``comparable commercial airplane'' means an airplane of similar
make and model as the airplane that actually makes the trip, and
with the same amenities as that airplane. For example, in Advisory
Opinion 1984-48, the Commission interpreted a comparable airplane as
being ``of the same type (e.g., jet aircraft versus prop plane) and
services offered (e.g., plane with dining service or lavatory versus
one without)'' as the plane actually used. The Commission further
explained that when a candidate used a twin engine prop jet, a
single engine, prop aircraft would not be a comparable aircraft. The
term ``comparable commercial airplane'' is intended to require these
distinctions as well as other differences such as when a plane is
chartered with a crew or without, or with or without fuel.
2003 E&J at 69588-69589.
The Commission seeks comments on this approach.
3. Presidential and Vice-Presidential Candidates Accepting Public
Financing
The Commission proposes to continue its policy of promoting equal
treatment of travel by publicly financed candidates and presidential or
vice-presidential candidates who have not accepted public funds.
Therefore, proposed 11 CFR 100.93(c)(1) would apply directly to
presidential and vice-presidential candidates who have not accepted
public funds, while the proposed revisions to 11 CFR 9004.7 and 9034.7,
discussed below, would continue to incorporate the section 100.93 rates
by reference and thereby indicate that they also apply to candidates
who have accepted public funds. One important distinction, however, is
that a presidential candidate accepting public funds for the general
election is prohibited from receiving any in-kind contribution from any
person, which would include an in-kind contribution of non-commercial
air travel.
The Commission seeks comments on the proposed application of the
new rules to publicly financed presidential and vice-presidential
candidates.
4. Travel on Behalf of Leadership PACs of Senate, Presidential, and
Vice-Presidential Candidates
Under new 2 U.S.C. 439a(c), payments by leadership PACs of House
candidates are subject to the same restrictions as payments by
authorized committees of House candidates. See 2 U.S.C. 439a(c)(2). In
contrast, new 2 U.S.C. 439a(c) is silent with respect to leadership
PACs of Senate candidates and Federal officeholders with leadership
PACs who are also presidential or vice-presidential candidates.
The Commission proposes to apply the new reimbursement rates to
travel on behalf of a Senate candidate's leadership PAC. See 11 CFR
100.93(c)(1). The Commission seeks comment on this approach.
Alternatively, should the Commission decline to extend the new
reimbursement rate structure to travel on behalf of a Senate
candidate's leadership PAC because the new law does not explicitly do
so?
5. Commercially Reasonable Time Frame
Candidates for President, Vice-President, and the U.S. Senate must
pay their pro rata share of non-commercial travel on aircraft ``within
a commercially reasonable time frame after the date on which the flight
is taken.'' 2 U.S.C. 439a(c)(1)(B). Proposed 11 CFR 100.93(c) would
define the statutory ``commercially reasonable time frame'' as a seven-
day time frame beginning on the first day of the flight. The proposed
approach would be located in the introductory clause of 11 CFR
100.93(c) and thus would be applicable to all payments required under
that paragraph. The Commission seeks comment on this approach.
Is seven days a ``commercially reasonable time frame'' for
reimbursement or is it too short a period? Would another time period
for
[[Page 59960]]
reimbursement be more appropriate or reasonable? Should the Commission
instead establish the seven-day period (or some other period) as a safe
harbor, and consider longer periods on a case-by-case basis to
determine if the ``commercially reasonable time frame'' requirement was
satisfied?
F. Proposed 11 CFR 100.93(e)--Government Conveyances
The Commission's current rules at 11 CFR 100.93(e) require
reimbursement for travel aboard airplanes owned by the Federal
government, or by any State or local government entity, at the same
rate as travel aboard other airplanes (i.e., the rate for a first-class
or coach ticket aboard a commercial flight if the travel is between two
cities served by regularly scheduled commercial airline service, or the
equivalent charter rate if there is no such service between the
cities).\8\ Non-commercial campaign travel aboard other government
conveyances is also required to be reimbursed at the same rate as
travel aboard equivalent means of transportation not owned by a
government entity. 11 CFR 100.93(e)(2).
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\8\ Travel to or from a military airbase or other location not
accessible to the general public is treated as travel from the
nearest city with regularly-scheduled commercial airline service. 11
CFR 100.93(e)(1)(i).
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New 2 U.S.C. 439a(c) generally prohibits candidates for the U.S.
House of Representatives from using campaign funds for non-commercial
campaign travel, but provides an exception for travel aboard an
aircraft ``operated by an entity of the Federal government or the
government of any State.'' 2 U.S.C. 439a(c)(2)(B). The new law does not
specify any particular rate of reimbursement for travel aboard
government aircraft, nor does it explicitly require or prohibit
reimbursement for such travel.\9\
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\9\ The Commission notes that Public Law 110-81 also amends the
Senate ethics rules regarding travel. These amendments similarly
require Senators to pay this pro rata share of the fair market value
of a flight for non-commercial travel. See Public Law 110-81, Sec.
544(c)(1), amending Paragraph 1(c)(1) of rule XXXV of the Standing
Rules of the Senate. These amendments, however, expressly except
from these restrictions any travel aboard ``an aircraft owned or
leased by a governmental entity.'' Standing Rules of the Senate,
Rule XXXV, Paragraph 1(c)(1)(C)(iii).
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Proposed 11 CFR 100.93(e) would require all campaign travelers,
including candidates for Federal office and those traveling on their
behalf, who travel on aircraft provided by a Federal or State
government entity (including local governments), to reimburse the
appropriate government entity for the travel. See proposed 11 CFR
100.93(e). The proposed rules set out two alternative rates of
reimbursement for travel by candidates and candidate representatives,
and either rate would be acceptable.
The first proposed rate of reimbursement, which would be similar to
current 11 CFR 100.93(c)(1), would be the pro rata share per
represented candidate of the normal and usual charter fare or rental
charge for the flight on a comparable aircraft of sufficient size to
accommodate all of the campaign travelers. The pro rata share would be
determined by dividing the normal and usual charter fare by the number
of different candidates represented on the flight, regardless of the
total number of campaign travelers or other passengers. Under this
proposal, the ``comparable aircraft'' used for determining the required
reimbursement amount would not be required to accommodate the non-
campaign related passengers and equipment aboard the aircraft. For
example, if Presidential Candidate A, two campaign staffers traveling
on behalf of Presidential Candidate A, two members of the Secret
Service, and PAC representative P, travel on a twenty-seat government
aircraft, reimbursement would be required at the normal and usual
charter rate for comparable aircraft of sufficient size to accommodate
four passengers (Presidential Candidate A, his two campaign staffers,
and PAC representative P; the two Secret Service agents would not be
counted). Presidential Candidate A would pay the full charter rate, and
PAC representative P would not be required to reimburse for his or her
travel. The Commission seeks comment on this approach. Specifically, do
non-candidate campaign travelers use government aircraft when not
accompanied by a candidate, or person traveling on behalf of a
candidate? At what rate should travel on a government plane that does
not include any candidate-related campaign travelers be calculated?
The Commission seeks comments on a variation of this first
reimbursement rate, in which Presidential Candidate A and PAC
representative P would each be responsible for the full cost of the
normal and usual charter rate for an aircraft of sufficient size to
accommodate only those campaign travelers who are traveling on their
behalf. Under this variation, Presidential Candidate A would pay the
normal and usual charter rate for an aircraft capable of accommodating
three campaign travelers: Candidate A and his two staffers. PAC
representative P would be required to pay only the normal and usual
charter rate for an aircraft of sufficient size to carry one passenger.
With respect to campaign travel aboard Air Force One or other
government aircraft dedicated to transporting the Vice President, the
Speaker of the House of Representatives, or other such officials, the
Commission intends that the reimbursement amount under this proposal
would be determined with reference to an aircraft of sufficient size to
accommodate the campaign travelers, and excluding all non-campaign-
related personnel and equipment. The Commission acknowledges that it
may be difficult, if not impossible, to apply the ``comparable plane of
comparable size'' standard to circumstances in which the campaign
traveler travels exclusively aboard a specially-outfitted, government-
owned aircraft by virtue of his or her status as an officeholder. For
example, few, if any, aircraft exist with the ``same amenities'' as Air
Force One. See proposed 11 CFR 100.93(e)(1)(i).
The second proposed rate of reimbursement would be the private
traveler reimbursement rate per campaign traveler. This rate would be
the rate specified by the Federal, State, or local government agency or
other government entity for private travel on its aircraft by a member
of the public. The Department of Defense, for example, publishes a list
of hourly reimbursement rates for both fixed-wing aircraft and
helicopters and includes an ``All Other User'' rate.\10\ Using the
private traveler reimbursement rate, the reimbursement rate is
calculated by dividing the private traveler reimbursement rate by the
number of campaign travelers. Reimbursement would not be required for
national security staff or other government officials on the flight
that are not campaign travelers. The Commission seeks comment on this
approach. Should the campaign traveler be permitted to reimburse the
government entity at a lower rate specified by the government entity,
such as the rate offered by some government agencies to travelers of
other government agencies? Should the regulations offer a choice
between alternative acceptable valuation methods, or should the
Commission adopt a single method of determining the reimbursement rate?
The Commission recognizes that campaign travel aboard government
conveyances such as Air Force One and Air Force Two present special
circumstances. Therefore, the
[[Page 59961]]
Commission requests comment on how it should address Air Force One and
Air Force Two in its regulations.
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\10\ See Fiscal Year 2008 Reimbursement Rates, available at
http://www.defenselink.mil/comptroller/rates/fy2008/2008_f.pdf and
http://www.defenselink.mil/comptroller/rates/fy2008/2008_h.pdf.
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The proposed rules would not specify a particular time for
repayment for travel on government aircraft under either of the
alternative rates. Should the Commission require payment within a
specific time period, such as seven days, as for travel on other
aircraft under proposed 11 CFR 100.93(c)?
G. Proposed 11 CFR 100.93(g)--Exception for Aircraft Owned by Federal
Candidates and Their Family Members
The amendments to 2 U.S.C. 439a include an exception for travel
aboard aircraft that are ``owned or leased'' by a candidate or
candidate's immediate family member, including an aircraft owned or
leased by any entity in which the candidate or a member of the
candidate's immediate family ``has an ownership interest,'' provided
that the entity is not a ``public corporation'' and the use of the
aircraft is not ``more than the candidate's or immediate family
member's proportionate share of ownership allows.'' 2 U.S.C.
439a(c)(3)(A). The exception would operate as an exception to all of
the restrictions on expenditures for air travel in new 2 U.S.C.
439a(c). See discussion of proposed 11 CFR 113.5. The Commission seeks
comment on this approach.
While the new exception relieves the restrictions on expenditures,
it does not relieve candidates of the obligation to reimburse the
service providers (candidates, members of their family, or entities in
which either owns an interest) to avoid receiving an in-kind
contribution for the use of the aircraft. See 11 CFR 100.93. Even
though a candidate for Federal office may make an unlimited amount of
contributions to his or her own campaign, those contributions must be
reported by the candidate's authorized committee.\11\ 11 CFR 110.10;
Advisory Opinions 1991-09 (Hoagland), 1990-09 (Mueller), 1985-33
(Collins), 1984-60 (Mulloy). Contributions by all other persons,
including immediate family members, are subject to the applicable
amount limits and source prohibitions. 11 CFR 110.1 et seq.
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\11\ A contribution by a candidate for the House or Senate to
his own campaign may also impact separate disclosure requirements
for expenditures from personal funds under 2 U.S.C. 441a(i), the so-
called ``Millionaires Amendment.'' 2 U.S.C. 441a(i)(1)(C); 11 CFR
Part 400. The Commission seeks comment on the impact of these
proposed regulations on the Millionaire's Amendment.
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The Commission proposes several reimbursement alternatives.
Proposed 11 CFR 100.93(g) would require reimbursement for aircraft
owned by candidates and their immediate family at the rates set forth
in the Commission's existing rules, which would be moved to 11 CFR
100.93(g)(1)(i) through (iii): first-class, coach, or charter rates,
depending on whether the origin and destination cities are served by
regularly scheduled commercial airline service. The charter rate would
be required only if the travel is between two cities not served by
regularly scheduled first class or coach commercial airline service.
1. Incremental Cost Alternative
As an alternative, the Commission proposes that such travel be
reimbursed at the actual incremental cost of such travel. For example,
in the case of a candidate piloting his or her own aircraft to a
campaign event, the rate of reimbursement would be the actual cost of
fuel and any incremental costs such as landing fees. Depreciation or
the candidate's piloting services would not be included in the
reimbursement calculation. However, under this alternative, if a pilot
or crew were employed for the flight, the cost of their services would
be included in the reimbursement rate. Should reimbursement not be
required if the pilot or crew (including family members) are volunteers
for the candidate or campaign committee?
2. Actual Value Alternative
In the case of travel on an aircraft that is owned or leased under
a shared-ownership or other time-share arrangement, the Commission
proposes as an additional alternative that reimbursement be required at
the hourly, mileage, or other applicable rate charged the candidate,
corporation, or immediate family member for the costs of the travel.
For example, if a candidate traveled on an aircraft leased by an
immediate family member at a cost of $1,000 per hour, the appropriate
reimbursement rate to that family member would be $1,000 per hour.
The Commission seeks comment on the proposed approaches or any
other method of calculation. For example, the Commission seeks comment
on whether the exception should require reimbursement at all for travel
on candidate-owned aircraft. Alternatively, should the Commission
require reimbursement at the same reimbursement rate required for all
other candidate travel under the proposed regulations, i.e., the pro
rata share of the fair market value of such flight? Moreover, should
the Commission allow one or more methods for calculating the
appropriate reimbursement rate?
Because the exception in 2 U.S.C. 439a(c)(3) for travel on aircraft
owned by candidates or members of their immediate family functions to
permit otherwise restricted or prohibited expenditures by candidates
and their committees, the Commission proposes to limit the exception to
travel by candidates or persons traveling on behalf of candidates.
Thus, proposed 11 CFR 100.93(g) would cover travel on an aircraft owned
by a candidate, the candidate's immediate family member, or an entity
other than a public corporation in which the candidate or immediate
family member has an ownership interest. The exception would not,
however, be available for other candidates traveling on behalf of their
own campaigns.\12\ The Commission seeks comment on this approach.
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\12\ The reimbursement rates in proposed 11 CFR 100.93(c)(3)(i)
through (iii) would apply to officials of a political party
committee who are traveling on behalf of the party committee, and
other campaign travelers who are traveling on behalf of a political
committee other than a candidate's authorized committee or
leadership PAC.
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In addition, the exception in new 2 U.S.C. 439a(c)(3) includes
several terms warranting clarification. First, the term ``ownership
interest'' is not defined. The Commission proposes to interpret the
term ``ownership interest'' to include fractional ownership, equity, or
use arrangements, as well as ``time-sharing'' arrangements in which the
candidate or an immediate family member pays a fee for a specified
amount of travel on the aircraft.
The Commission proposes to interpret the term ``public
corporation'' as applying to any corporation with publicly traded
shares. Therefore, aircraft owned by privately held corporations
without publicly traded shares, partnerships without publicly traded
equity interests, limited liability companies without publicly traded
shares, and all other entities without publicly traded shares or equity
interests would fall within this exception, so long as a candidate or
member of the candidate's immediate family owns an equity interest or
voting interest in that entity.
The new statutory exception limits a candidate's use of the
aircraft to not ``more than the candidate's or immediate family
member's proportionate share of ownership allows.'' 2 U.S.C.
439(c)(3)(A). However, the statute does not specify the exact nature of
the relationship between ownership shares and use of the aircraft.
[[Page 59962]]
Rather than account for all of the potential ownership structures
of an entity that may own or lease an aircraft, the Commission is
proposing a simple condition for the exception to apply: unless the
candidate or immediate family member is the sole owner of the aircraft,
the amount of use of the aircraft to which each ownership share is
entitled must be specified in writing prior to the candidate's use of
the airplane. As long as the written policy provides a reasonable
relationship between the use of the aircraft and the percentage of
ownership by the candidate or candidate's immediate family member, the
Commission would not delve into the various ownership structures. The
Commission requests comments on this proposal. If the candidate's use
of the aircraft exceeds his or her proportionate ownership share, how
should that excessive use be reimbursed? Should the excessive use be
prohibited altogether?
The proposed rules would not specify a particular time for
repayment for travel on aircraft owned by a candidate or a member of
the candidate's immediate family. Should the Commission require payment
within a specific time period, such as seven days, as for travel on
other aircraft under proposed 11 CFR 100.93(c)?
H. Recordkeeping Requirements
In light of the proposed changes to the reimbursement rates
required for candidates and candidate representatives, the Commission
proposes two revisions to its current recordkeeping requirements for
non-commercial travel at 11 CFR 100.93(i), which would be relocated to
proposed 11 CFR 100.93(j).
First, although the Commission's current rules permit candidates
and persons traveling on their behalf to pay first-class or coach rates
for certain flights, candidates and their representatives would be
required to pay the normal and usual charter rates under the proposed
rules. See proposed 11 CFR 100.93(c)(1) and (2). Accordingly, the
Commission proposes to establish a new paragraph in its revised
recordkeeping section to specify that candidates, and those paying for
travel by candidates and candidate representatives, must follow the
current recordkeeping requirements for persons paying the normal and
usual charter rate for air travel. See proposed 11 CFR 100.93(j)(3)(i)
(referencing the recordkeeping requirements in proposed paragraph
(j)(2) of the same section). These requirements are intended to
preserve information, such as the tail number of an aircraft and the
number of campaign travelers, that would enable the Commission to
determine whether the correct amount of reimbursement was provided for
specific flights. To avoid any inference that candidates would be
permitted to pay the first class or coach rates, proposed paragraphs
(j)(1) and (j)(2) would also be revised to expressly provide that
candidates and person traveling on behalf of candidates would be
governed by paragraph (j)(3), not (j)(1).
Second, the Commission would require that a record of the written
agreement required for aircraft owned in part by a candidate for
Federal office or a member of his or her immediate family be maintained
by the committee. The Commission seeks comment on the appropriate
duration of this record retention requirement. See proposed 11 CFR
100.93(j)(3)(ii). Where an aircraft is owned by an entity in which the
candidate or a member of the candidate's immediate family owns an
interest, this document would be required by proposed 11 CFR 100.93(g)
to specify the proportionate use of the aircraft corresponding to the
percentage of ownership of the candidate or member of the candidate's
immediate family.
The Commission seeks comments on these proposed revisions.
V. Use of Campaign Funds for Non-Commercial Travel--11 CFR 113.5
In addition to the proposed revisions to the travel reimbursement
regulations at 11 CFR 100.93, the Commission also proposes to add a new
section 11 CFR 113.5 to implement the limit on expenditures for non-
commercial air travel contained in new 2 U.S.C. 439a(c).
A. Proposed Change of Title for 11 CFR Part 113
Along with the proposed addition of new 11 CFR 113.5 implementing
new 2 U.S.C. 439a(c), the Commission proposes to change the title of
Part 113. The current title, ``Use of Campaign Accounts for Non-
Campaign Purposes,'' is insufficiently broad to encompass the subject
matter of the proposed rule, which regulates a use of campaign funds
for campaign purposes rather than for non-campaign purposes. The
Commission proposes instead the broader title, ``Permitted and
Prohibited Uses of Campaign Accounts,'' to capture the content of both
the existing regulations in this part and that of the proposed rule.
B. Proposed 11 CFR 113.5(a)--Rule for Presidential, Vice-Presidential
and Senate Candidates
Proposed 11 CFR 113.5(a)(1) reflects the general prohibition in new
2 U.S.C. 439a(c) on the expenditure of funds by candidates for
President, Vice-President or the Senate and their authorized committees
and leadership PACs for aircraft flights, except in certain specified
situations. The first situation is when air travel is taken on
``commercial'' flights. See proposed 11 CFR 113.5(a)(1). The second
situation is when air travel is taken on ``non-commercial'' flights and
the candidate or his or her authorized committee reimburses the
provider of the airplane in the amount of the candidate's pro rata
share of the fair market value of the flight within seven days of the
flight. See proposed 11 CFR 113.5(a)(2). Proposed 11 CFR 113.5(a)(1)
and (2) provide cross-references to definitions of the terms
``commercial travel,'' ``non-commercial travel,'' and ``pro rata share
of the fair market value of the flight'' in proposed 11 CFR
100.93(a)(3)(iv), (v) and (vi).
Proposed 11 CFR 113.5(a) includes restrictions on expenditures by
leadership PACs of Senate, presidential, and vice-presidential
candidates, to conform to the Commission's proposed language in 11 CFR
100.93(c)(1).
The Commission requests comments on all of the above aspects of
proposed 11 CFR 113.5(a).
C. Proposed 11 CFR 113.5(b)--Rule for House Candidates
New 2 U.S.C. 439a(c)(2) contains the applicable rule for candidates
for election to office in the House of Representatives. Unlike
candidates for President, Vice-President, or the U.S. Senate, House
candidates, including authorized committees and leadership PACs of such
candidates, are prohibited from spending campaign funds on private,
non-commercial air travel. Instead, House candidates may spend campaign
funds on air travel only when the flight is commercial or when the
flight is operated by an entity of the Federal government or of a State
government (including local governments). Other than travel permitted
under 11 CFR 100.92(g), because House candidates, their authorized
committees, and their leadership PACs are prohibited from spending
campaign funds on non-commercial travel, the proposed rule also
prohibits House candidates from accepting in-kind contributions in the
form of non-commercial air travel. Proposed 11 CFR 113.15(b).
[[Page 59963]]
Proposed 11 CFR 113.5(b)(1) and (2) implement these provisions.
Proposed subparagraph (1) contains the same ``commercial exception'' as
is set forth in proposed 11 CFR 113.5(a)(2). Travel on government-
operated aircraft is reflected in proposed subparagraph (2).
D. Proposed 11 CFR 113.5(c)--Exception to Rules for Aircraft Owned or
Leased by Candidate or Immediate Family Member
The restrictions on expenditures in the amendments to 2 U.S.C. 439a
do not apply to travel aboard aircraft that are ``owned or leased'' by
the candidate or the candidate's immediate family member, and aircraft
owned or leased by any entity in which the candidate or a member of the
candidate's immediate family ``has an ownership interest,'' provided
that the entity is not a ``public corporation'' and the use of the
aircraft is not ``more than the candidate's or immediate family
member's proportionate share of ownership allows.'' 2 U.S.C.
439a(c)(3)(A).
The Commission proposes to implement this exception in proposed 11
CFR 113.5(c). Proposed 11 CFR 113.5(c)(1) contains the exceptions.
Proposed 11 CFR 113.5(c)(2) states that candidates and immediate family
members will be considered to own or lease aircraft under the
conditions described in proposed 11 CFR 100.93(g)(2), namely, when
there is an ownership interest in an entity other than a public
corporation that owns the aircraft. Proposed 11 CFR 113.5(c)(3)
contains a cross-reference to proposed 11 CFR 100.93(g)(3), which
defines the term ``immediate family member'' in accordance with new 2
U.S.C. 439a(c)(3)(B).
E. Proposed 11 CFR 113.5(d)--Unreimbursed Air Travel as Contribution
Proposed 11 CFR 113.5(d) states that the unreimbursed value of
transportation provided to any campaign traveler, as defined in
proposed 11 CFR 100.93(a)(3)(i), is an in-kind contribution from the
service provider to the candidate or political committee on whose
behalf, or with whom, the campaign traveler traveled, and that such
contributions are subject to the limits and prohibitions of the Act.
VI. Publicly-Financed Presidential and Vice-Presidential Candidates--11
CFR 9004.7 & 9034.7
Although new 2 U.S.C. 439a(c) does not amend either the
Presidential Election Campaign Fund Act (Fund Act) (26 U.S.C. 9001 et
seq.) or the Presidential Primary Matching Payment Account Act
(Matching Payment Act) (26 U.S.C. 9031 et seq.), the Commission
proposes to make certain amendments to its regulations implementing
these laws to conform to the changes it proposes to make to 11 CFR
100.93.
Sections 9004.7 and 9034.7 are identically worded regulations
promulgated under the authority of the Fund Act and the Matching
Payment Act, respectively, and contain cross-references to 11 CFR
100.93. Both regulations prescribe the procedures that publicly funded
primary and general election presidential campaigns must follow in
attributing their travel expenses to campaign-related and to non-
campaign-related activities. The Commission proposes the following
technical amendments to conform these regulations to proposed 11 CFR
100.93:
A. Aircraft
Proposed 11 CFR 9004.7(b)(5)(i), (iii), and (v), and 11 CFR
9004.7(b)(8) replace the word ``airplane'' with the word ``aircraft.''
These changes conform the regulations to the scope of new 2 U.S.C.
439a(c) and to proposed 11 CFR 100.93, as well as to proposed 11 CFR
113.5.
B. Recordkeeping Requirements
Currently, 11 CFR 9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v)
require the authorized committees of presidential and vice-presidential
candidates to maintain documentation of the lowest unrestricted non-
discounted airfare as required in 11 CFR 100.93(i)(1) or (2). Sections
100.93(i)(1) and (2) contain recordkeeping requirements relating to
rates of reimbursement prescribed in 11 CFR 100.93(c) and (e). Proposed
11 CFR 100.93 replaces the current reimbursement rate for non-
commercial air travel by presidential and vice-presidential candidates
with a rate based on the ``pro rata share of the fair market value'' of
the flight and sets out the corresponding recordkeeping requirements in
proposed 11 CFR 100.93(j)(3). The Commission proposes to change 11 CFR
9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) to conform the recordkeeping
requirements to those proposed in 11 CFR 100.93(j)(3). The Commission
also proposes to make a conforming amendment to the final sentence in
this provision, which addresses recordkeeping requirements for travel
on other conveyances. Recordkeeping requirements in such cases would be
addressed in proposed 11 CFR 100.93(j)(4). Thus, the Commission
proposes to require recordkeeping in accordance with proposed 11 CFR
100.93(j)(4).
C. 11 CFR 9004.7(b)(8) and 11 CFR 9034.7(b)(8)--Scope
Sections 9004.7(b)(8) and 9034.7(b)(8) identify the scope of 11 CFR
100.93 in terminology used in current section 100.93. Specifically, the
provisions speak in terms of aircraft that are ``licensed for
compensation or hire'' under various FAA certification authorities. The
Commission proposes to change this language to conform to the proposed
language used in new 2 U.S.C. 439a(c) and in proposed 11 CFR 100.93.
Proposed 11 CFR 9004.7(b)(8) and 11 CFR 9034.7(b)(8) state that travel
on non-commercial airplanes is governed by 11 CFR 100.93 and that the
term ``non-commercial'' is defined in accordance with proposed section
11 CFR 100.93(a)(3)(v).
The Commission invites comments from the public concerning any of
the proposals outlined above. The Commission also invites comments from
the public regarding any additional changes that should be made to 11
CFR 100.5(e), 100.93, 113.5, 9004.7(b)(5)(i), (iii), (v) or (b)(8), or
9034.7(b)(5)(i), (iii), (v), or (b)(8).
Certification of No Effect Pursuant to 5 U.S.C. 605(b) [Regulatory
Flexibility Act]
The Commission certifies that the attached proposed rules, if
promulgated, will not have a significant economic impact on a
substantial number of small entities. The basis for this certification
is that few, if any, small entities would be affected by these final
rules, which impose obligations only on Federal candidates, their
campaign committees, other individuals traveling in connection with a
Federal election, and the political committees on whose behalf this
travel is conducted. Federal candidates, their campaign committees, and
most political party committees and other political committees entitled
to rely on these rules are not small entities. These rules would
generally clarify or supplement existing rules and are largely intended
to implement a statutory directive and simplify the process of
determining reimbursement rates. The rules would not impose compliance
costs on any service providers (as defined in the rules) that are small
entities so as to cause a significant economic impact. With respect to
the determination of the amount of reimbursement for travel, the new
rules would merely reflect an extension of existing similar rules. To
the extent that operators of air-taxi services or on-demand air charter
services are small entities indirectly impacted by these rules, any
economic
[[Page 59964]]
effects would result from the travel choices of individual candidates
or other travelers rather than Commission requirements and, in any
event, are likely to be less than $100,000,000 per year.
List of Subjects
11 CFR Part 100
Elections.
11 CFR Part 113
Campaign funds, and political candidates.
11 CFR Part 9004
Campaign funds.
11 CFR Part 9034
Campaign funds, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Federal Election
Commission proposes to amend subchapters A, E, and F of chapter 1 of
title 11 of the Code of Federal Regulations as follows:
PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)
1. The authority citation for part 100 would be revised to read as
follows:
Authority: 2 U.S.C. 431, 434, 438(a)(8), and 439a(c).
2. Section 100.5 would be amended by adding a new paragraph (e)(6)
to read as follows:
Sec. 100.5 Political committee (2 U.S.C. 431 (4), (5), (6)).
* * * * *
(e) The following are examples of political committees:
* * * * *
(6) Leadership PAC. Leadership PAC means a political committee that
is directly or indirectly established, financed, maintained or
controlled by a candidate for Federal office or an individual holding
Federal office but which is not an authorized committee of the
candidate or individual and which is not affiliated with an authorized
committee of the candidate or individual, except that leadership PAC
does not include a political committee of a political party.
* * * * *
3. Section 100.93 is revised to read as follows:
Sec. 100.93 Travel by aircraft or other means of transportation.
(a) Scope and definitions. (1) This section applies to all campaign
travelers who use non-commercial travel
(2) Campaign travelers who use commercial travel, such as a
commercial airline flight, charter flight, taxi, or an automobile
provided by a rental company, are governed by 11 CFR 100.52(a) and (d),
not this section.
(3) For the purposes of this section:
(i) Campaign traveler means
(A) Any candidate for Federal office or any individual traveling in
connection with an election for Federal office on behalf of a candidate
or political committee; or
(B) Any member of the news media traveling with a candidate.
(ii) Service provider means the owner of an aircraft or other
conveyance, or a person who leases an aircraft or other conveyance from
the owner or otherwise obtains a legal right to the use of an aircraft
or other conveyance, and who uses the aircraft or other conveyance to
provide transportation to a campaign traveler. For a jointly owned or
leased aircraft or other conveyance, the service provider is the person
who makes the aircraft or other conveyance available to the campaign
traveler.
(iii) Unreimbursed value means the difference between the value of
the transportation service provided, as set forth in this section, and
the amount of payment for that transportation service by the political
committee or campaign traveler to the service provider within the time
limits set forth in this section.
(iv) Commercial travel means travel aboard:
(A) An aircraft operated by an air carrier or commercial operator
certificated by the Federal Aviation Administration, provided that the
flight is required to be conducted under Federal Aviation
Administration air carrier safety rules, or, in the case of travel
which is abroad, by an air carrier or commercial operator certificated
by an appropriate foreign civil aviation authority, provided that the
flight is required to be conducted under air carrier safety rules; or
(B) Other means of transportation operated for commercial passenger
service
(v) Non-commercial travel means travel aboard any conveyance that
is not commercial travel, as defined in paragraph (a)(3)(iv) of this
section.
(b) General rule. (1) No contribution is made by a service provider
to a candidate or political committee if:
(i) Every candidate's authorized committee, leadership PAC, or
other political committee on behalf of which the travel is conducted
pays the service provider, within the required time, for the full value
of the transportation, as determined in accordance with paragraphs (c),
(d), (e) or (g) of this section, provided to all campaign travelers who
are traveling on behalf of that candidate or political committee; or
(ii) Every campaign traveler for whom payment is not made under
paragraph (b)(1)(i) of this section pays the service provider for the
full value of the transportation provided to that campaign traveler as
determined in accordance with paragraphs (c), (d), (e) or (g) of this
section. See 11 CFR 100.79 and 100.139 for treatment of certain
unreimbursed transportation expenses incurred by individuals traveling
on behalf of candidates, authorized committees, and political
committees of political parties; and
(iii) Every member of the news media traveling with a candidate for
whom payment is not made under paragraph (b)(1)(i) of this section pays
the service provider for the full value of his or her transportation as
determined in accordance with paragraphs (d) or (e)(2) of this section.
(2) Except as provided in 11 CFR 100.79, the unreimbursed value of
transportation provided to any campaign traveler, as determined in
accordance with paragraphs (c), (d) or (e) of this section, is an in-
kind contribution from the service provider to the candidate or
political committee on whose behalf, or with whom, the campaign
traveler traveled.
(c) Travel on aircraft. When a campaign traveler uses aircraft for
non-commercial travel, other than a government aircraft described in
paragraph (e) of this section or an aircraft described in paragraph (g)
of this section, reimbursement must be provided no later than seven (7)
calendar days after the date the flight began at one of the following
rates to avoid the receipt of an in-kind contribution:
(1) Travel by or on behalf of Senate, presidential, or vice-
presidential candidates. A Senate, presidential, or vice-presidential
candidate traveling on his own behalf, or any person traveling on
behalf of such candidate, the candidate's authorized committee, or the
candidate's leadership PAC, must pay the pro rata share per represented
candidate of the normal and usual charter fare or rental charge for
travel on a comparable aircraft of comparable size. The pro rata share
shall be calculated by dividing the normal and usual charter fare or
rental charge by the number of different candidates represented on the
flight, regardless of the total number of campaign travelers or other
passengers.
(2) House candidates. Except as otherwise provided in paragraphs
(e) and (g) of this section, a campaign traveler who is a candidate for
election
[[Page 59965]]
for the office of Representative in, or Delegate or Resident
Commissioner to, the Congress, or a person traveling on behalf of any
such candidate or any authorized committee or leadership PAC of such
candidate, is prohibited from non-commercial travel on behalf of any
such candidate or any authorized committee or leadership PAC of such
candidate.
(3) Other campaign travelers. No reimbursement is required for
travel by campaign travelers not covered by paragraphs (c)(1) or (c)(2)
of this section if that travel is required to be reimbursed by a
candidate, or any authorized committee or leadership PAC of a
candidate, pursuant to paragraphs (c)(1) or (c)(2) of this section.
Otherwise, a campaign traveler not covered by paragraphs (c)(1) or
(c)(2) of this section, or the political committee on whose behalf the
travel is conducted, must pay the service provider the pro rata share
per represented committee of the normal and usual charter fare or
rental charge for travel on a comparable airplane of comparable size.
The pro rata share shall be calculated by dividing the normal and usual
charter fare or rental charge by the number of different committees
represented on the flight, regardless of the total number of campaign
travelers or other passengers.
(d) Other means of transportation. If a campaign traveler uses any
means of transportation other than an aircraft, including an
automobile, or train, or boat, the campaign traveler, or the political
committee on whose behalf the travel is conducted, must pay the service
provider within thirty (30) calendar days after the date of receipt of
the invoice for such travel, but not later than sixty (60) calendar
days after the date the travel began, at the normal and usual fare or
rental charge for a comparable commercial conveyance of sufficient size
to accommodate all campaign travelers, including members of the news
media traveling with a candidate, and security personnel, if
applicable.
(e) Government conveyances. (1) If a campaign traveler uses an
aircraft that is provided by the Federal government, or by a State or
local government, the campaign traveler, or the political committee on
whose behalf the travel is conducted, must pay the governmental entity
either:
(i) The pro rata share per represented candidate of the normal and
usual charter fare or rental charge for the flight on a comparable
aircraft of sufficient size to accommodate all campaign travelers. The
pro rata share shall be calculated by dividing the normal and usual
charter fare or rental charge by the number of different candidates
represented on the flight, regardless of the total number of campaign
travelers or other passengers. For purposes of this paragraph, the
comparable aircraft need not accommodate any authorized or required
government personnel and equipment; or
(ii) The private traveler reimbursement rate, as specified by the
governmental entity providing the aircraft, per campaign traveler.
(2) If a campaign traveler uses a conveyance, other than an
aircraft, that is provided by the Federal government, or by a State or
local government, the campaign traveler, or the political committee on
whose behalf the travel is conducted, must pay the government entity in
accordance with paragraph (d) of this section.
(f) Date and public availability of payment rate. For purposes of
paragraphs (c), (d), (e), and (g) of this section, the payment rate
must be the rate available to the general public for the dates traveled
or within seven (7) calendar days thereof. The payment rate must be
determined by the time the payment is due under paragraph (c), (d), (e)
or (g) of this section.
(g) Aircraft owned by a candidate or an immediate member of a
candidate's family.
(1) For non-commercial travel by a candidate for Federal office, or
a person traveling on behalf of such candidate, on an aircraft owned or
leased by a candidate or an immediate family member of the candidate,
the candidate's authorized committee must pay
(i) In the case of travel between cities served by regularly
scheduled first-class commercial airline service, the lowest
unrestricted and non-discounted first-class airfare;
(ii) In the case of travel between a city served by regularly
scheduled coach commercial airline service, but not regularly scheduled
first-class commercial airline service, and a city served by regularly
scheduled coach commercial airline service (with or without first-class
commercial airline service), the lowest unrestricted and non-discounted
coach airfare; or
(iii) In the case of travel to or from a city not served by
regularly scheduled commercial airline service, the rate for Senate and
Presidential campaign travelers in paragraph (c)(1) of this section.
Paragraph (g)(1)--Alternative 1 (Incremental Cost Alternative)
(g) Aircraft owned by a candidate or an immediate member of a
candidate's family.
(1) For non-commercial travel by a candidate for Federal office, or
a person traveling on behalf of such candidate, on an aircraft owned or
leased by a candidate or an immediate family member of the candidate,
the candidate's authorized committee must pay the incremental cost of
such travel. The incremental cost includes, but is not limited to, the
cost of fuel and crew, but does not include depreciation costs.
Paragraph (g)(1)--Alternative 2--(Actual Value Alternative)
(g) Aircraft owned by a candidate or an immediate member of a
candidate's family.
(1) For non-commercial travel by a candidate for Federal office, or
a person traveling on behalf of such candidate, on an aircraft owned or
leased by a candidate or an immediate family member of the candidate,
the candidate's authorized committee must pay, in the case of travel on
an aircraft that is owned or leased under a shared-ownership or other
time-share arrangement, the hourly, mileage, or other applicable rate
charged the candidate, corporation, or immediate family member for the
costs of the travel.
(2) A candidate, or an immediate family member of the candidate,
will be considered to own or lease an aircraft under paragraph (g)(1)
of this section if the candidate or the immediate family member of the
candidate has an ownership interest in an entity that owns the
aircraft, provided that the entity is not a corporation with publicly
traded shares and that the owning entity specifies in writing the
amount of use of the aircraft to which that ownership interest is
entitled.
(3) For the purposes of this section, an ``immediate family
member'' of a candidate is the father, mother, son, daughter, brother,
sister, husband, wife, father-in-law, or mother-in-law of the
candidate.
(h) Preemption. In all respects, State and local laws are preempted
with respect to travel in connection with a Federal election to the
extent they purport to supplant the rates or timing requirements of 11
CFR 100.93.
(i) Reporting. (1) In accordance with 11 CFR 104.13, a political
committee on whose behalf the unreimbursed travel is conducted must
report the receipt of an in-kind contribution and the making of an
expenditure under paragraph (b)(2) of this section.
(2) When reporting a disbursement for travel services in accordance
with this section, a political committee on whose behalf the travel is
conducted must report the actual dates of travel for
[[Page 59966]]
which the disbursement is made in the ``purpose of disbursement''
field.
(j) Recordkeeping. (1) Except as provided in paragraph (j)(3) of
this section, for travel by aircraft between cities served by regularly
scheduled first-class or coach commercial airline service, or for
travel to or from a military base on a government airplane, the
political committee on whose behalf the travel is conducted shall
maintain documentation of:
(i) The service provider and tail number (or other unique
identifier for military aircraft) of the aircraft used;
(ii) An itinerary showing the departure and arrival cities and the
date(s) of departure and arrival, a list of all passengers on such
trip, along with a designation of which passengers are and which are
not campaign travelers; and
(iii) The lowest unrestricted non-discounted airfare available in
accordance with paragraphs (c), (e) and (f) of this section, including
the airline offering that fare, flight number, travel service, if any,
providing that fare, and the dates on which the rates are based.
(2) Except as provided in paragraph (j)(3) of this section, for
travel by aircraft to or from a city not served by regularly scheduled
commercial airline service, the candidate or political committee on
whose behalf the travel is conducted shall maintain documentation of:
(i) The service provider and the size, model, make and tail number
(or other unique identifier for military aircraft) of the aircraft
used;
(ii) An itinerary showing the departure and arrival cities and the
date(s) of departure and arrival, a list of all passengers on such
trip, along with a designation of which passengers are and which are
not campaign travelers or security personnel; and
(iii) The rate for the comparable charter aircraft available in
accordance with paragraphs (c), (e) and (f) of this section, including
the airline, charter or air taxi operator, and travel service, if any,
offering that fare to the public, and the dates on which the rates are
based.
(3) For non-commercial travel on aircraft by any candidate for
Federal office, or a person traveling on behalf of such candidate, the
candidate's authorized committee, or the candidate's leadership PAC,
the candidate or political committee on whose behalf the travel is
conducted shall maintain:
(i) The documentation required by paragraph (j)(2)(i) through (iii)
of this section, and
(ii) Where the travel is aboard an aircraft owned in part by the
candidate or an immediate family member of the candidate, the document
specifying the amount of use of the aircraft corresponding to the
candidate's or an immediate family member's ownership interest in the
aircraft, as required by paragraph (g) of this section.
(4) For travel by other conveyances, the political committee on
whose behalf the travel is conducted shall maintain documentation of:
(i) The service provider and the size, model and make of the
conveyance used;
(ii) An itinerary showing the departure and destination locations
and the date(s) of departure and arrival, a list of all passengers on
such trip, along with a designation of which passengers are and which
are not campaign travelers or security personnel; and
(iii) The commercial fare or rental charge available in accordance
with paragraphs (d) and (f) of this section for a comparable commercial
conveyance of sufficient size to accommodate all campaign travelers
including members of the news media traveling with a candidate, and
security personnel, if applicable.
PART 113--PERMITTED AND PROHIBITED USES OF CAMPAIGN ACCOUNTS
4. The authority citation for part 113 would continue to read as
follows:
Authority: 2 U.S.C. 432(h), 438(a)(8), 439a, 441a.
5. The heading to part 113 would be revised to read as set forth
above.
6. Part 113 would be amended by adding a new Sec. 113.5 to read as
follows:
Sec. 113.5 Restrictions on use of campaign funds for flights on
noncommercial aircraft (2 U.S.C. 439a(c)).
(a) Presidential, vice-presidential and Senate candidates.
Notwithstanding any other provision of the Act or Commission
regulations, a presidential, vice-presidential, or Senate candidate,
and any authorized committee or leadership PAC of such candidate, shall
not make any expenditure for travel on an aircraft unless the flight is
(1) Commercial travel as provided in 11 CFR 100.93(a)(3)(iv); or
(2) Noncommercial travel as provided in 11 CFR 100.93(a)(3)(v), and
the pro rata share of the fair market value of such a flight, as
provided in 11 CFR 100.93(c), is paid by the candidate, the authorized
committee, or other political committee on whose behalf the travel is
conducted, to the owner, lessee, or other person who provides the
aircraft within seven days after the date on which the flight is taken.
(b) House candidates. Notwithstanding any other provision of the
Act or Commission regulations, a candidate for the office of
Representative in, or Delegate or Resident Commissioner to, the
Congress, and any authorized committee or leadership PAC of such
candidate, shall not make any expenditures, or receive any in-kind
contribution, for travel on an aircraft unless the flight is
(1) Commercial travel as provided in 11 CFR 100.93(a)(3)(iv); or
(2) Provided by the Federal government or by a State or local
government.
(c) Exception for aircraft owned or leased by candidates and
immediate family members of candidates. (1) Paragraphs (a) and (b) of
this section do not apply to flights on aircraft owned or leased by the
candidate, or by an immediate family member of the candidate, provided
that the candidate does not use the aircraft more than the candidate's
or immediate family member's proportionate share of ownership allows.
(2) A candidate, or an immediate family member of the candidate,
will be considered to own or lease an aircraft under the conditions
described in 11 CFR 100.93(g)(2).
(3) An ``immediate family member'' is defined in 11 CFR
100.93(g)(3).
(d) In-kind contribution. Except as provided in 11 CFR 100.79, the
unreimbursed value of transportation provided to any campaign traveler
is an in-kind contribution from the service provider to the candidate
or political committee on whose behalf, or with whom, the campaign
traveler traveled. Such contributions are subject to the reporting
requirements, limitations and prohibitions of the Act.
PART 9004--ENTITLEMENT OF ELIGIBLE CANDIDATES TO PAYMENTS; USE OF
PAYMENTS
7. The authority citation for part 9004 would continue to read as
follows:
Authority: 26 U.S.C. 9004 and 9009(b).
8. Section 9004.7 would be amended by revising paragraphs
(b)(5)(i), (iii), and (v) and (b)(8) to read as follows:
Sec. 9004.7 Allocation of travel expenditures.
* * * * *
(b) * * *
(5)(i) If any individual, including a candidate, uses a government
aircraft for campaign-related travel, the candidate's authorized
committee shall pay the appropriate government entity an amount equal
to the applicable rate set forth in 11 CFR 100.93(e).
* * * * *
(iii) If any individual, including a candidate, uses a government
[[Page 59967]]
conveyance, other than an aircraft, for campaign-related travel, the
candidate's authorized committee shall pay the appropriate government
entity an amount equal to the amount required under 11 CFR 100.93(d).
* * * * *
(v) For travel by aircraft, the committee shall maintain
documentation as required by 11 CFR 100.93(j)(3) in addition to any
other documentation required in this section. For travel by other
conveyances, the committee shall maintain documentation of the
commercial rental rate as required by 11 CFR 100.93(j)(4) in addition
to any other documentation required in this section.
* * * * *
(8) Non-commercial travel, as defined in 11 CFR 100.93(a)(3)(v), on
aircraft, and travel on other means of transportation not operated for
commercial passenger service, is governed by 11 CFR 100.93.
PART 9034--ENTITLEMENTS
9. The authority citation for part 9034 would continue to read as
follows:
Authority: 26 U.S.C. 9034 and 9039(b).
10. Section 9034.7 would be amended by revising paragraphs (b)(5)
(i), (iii), and (v) and (b)(8) to read as follows:
Sec. 9034.7 Allocation of travel expenditures.
* * * * *
(b) * * *
(5)(i) If any individual, including a candidate, uses a government
aircraft for campaign-related travel, the candidate's authorized
committee shall pay the appropriate government entity an amount not
less than the applicable rate set forth in 11 CFR 100.93(e).
* * * * *
(iii) If any individual, including a candidate, uses a government
conveyance, other than an aircraft, for campaign-related travel, the
candidate's authorized committee shall pay the appropriate government
entity an amount equal to the amount required under 11 CFR 100.93(d).
* * * * *
(v) For travel by aircraft, the committee shall maintain
documentation as required by 11 CFR 100.93(j)(3) in addition to any
other documentation required in this section. For travel by other
conveyances, the committee shall maintain documentation of the
commercial rental rate as required by 11 CFR 100.93(j)(4) in addition
to any other documentation required in this section.
* * * * *
(8) Non-commercial travel on aircraft, and travel on other means of
transportation not operated for commercial passenger service is
governed by 11 CFR 100.93.
Dated: October 18, 2007.
Robert D. Lenhard,
Chairman, Federal Election Commission.
[FR Doc. E7-20901 Filed 10-22-07; 8:45 am]
BILLING CODE 6715-01-P