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Domenici Queries FEC on Use of Campaign Cash

Senator Seeks to Pay Legal Bills With Surplus Funds

Retiring Sen. Pete Domenici (R-N.M.) is asking federal regulators whether his office can use his hefty campaign war chest to beat back allegations that he inappropriately pressured a U.S. attorney in 2006.

In a Nov. 15 letter to the Federal Election Commission, Domenici’s lawyers requested access to surplus campaign funds, totaling $1.8 million, for the six-term appropriator and his staff to pay down legal expenses charged during an ongoing investigation by the Senate Ethics Committee — or any other legal scrutiny the flap may churn up along the way.

“Sen. Domenici seeks guidance regarding whether it is permissible for [his] campaign to pay legal fees and expenses incurred in connection with the [Ethics Committee’s] preliminary inquiry, as well as any legal fees and expenses that may be incurred as a result of further or additional inquiries related to the same operative facts,” GOP campaign lawyer Don McGahn, who also is widely rumored to be in the running for an open spot at the FEC, wrote on the Senator’s behalf.

The FEC posted the guidance request letter Monday. A call to McGahn’s office was not returned before Roll Call’s press time Wednesday.

In early March 2007, Citizens for Responsibility and Ethics in Washington asked Sen. Barbara Boxer (D-Calif.), the Ethics chairwoman, to look into whether Domenici violated Senate rules when he reportedly contacted David Iglesias, then the U.S. attorney in New Mexico, in early October 2006 — just weeks before Election Day — regarding the prosecution of two Democratic politicians from the state.

CREW alleged that Domenici violated the Senate ethics rules involving direct Member and staffer contact with prosecutors and judges in ongoing court cases. The Ethics Manual says “the principle behind such advice is that the judicial system is the appropriate forum for the resolution of legal disputes and, therefore, the system should be allowed to function without interference from outside sources.”

“Communications with an agency with respect to a matter which may be the subject of litigation … is, nevertheless, generally permitted,” according to the manual.

The group charged that Domenici pressured Iglesias “to act quickly on a pending corruption investigation” based on political factors, not legal curiosity or in the interest of his constituents. CREW also alleged that Domenici’s actions reflected poorly on the Senate, a potential rule violation, by not being forthright initially regarding his contact with Iglesias’ office.

“By pressuring Mr. Iglesias to act quickly on a pending corruption investigation, Sen. Domenici attempted to intervene in a pending legal action before the matter reached a resolution in the courts,” CREW Executive Director Melanie Sloan wrote on March 5, 2007. “Sen. Domenici made the telephone call in October 2006 in an apparent attempt to influence Mr. Iglesias to take action that might have adversely affected Democrats in the November elections.”

Sloan closed: “When Sen. Domenici stated, in response to Mr. Iglesias’s allegations, ‘I have no idea what he’s talking about,’ he was obviously not telling the truth. This represents improper conduct that reflects upon the Senate.”

In their Nov. 15, 2007, letter to the FEC, Domenici’s lawyers argued that the calls simply were related to a “public corruption investigation of concern to the people of New Mexico.”

Senate ethics investigations are confidential, so the status of Domenici’s case — or potentially a case involving his staffers — remains unclear. But according to election law experts, it is almost certain that the FEC will bless Domenici’s request, which would free up nearly $1.8 million in surplus campaign funds to pay down any potential legal bills for himself or his staff associated with the scandal.

“They’re just being cautious and dotting all the i’s and crossing all the t’s with FEC,” Democratic election lawyer Marc Elias said Wednesday afternoon.

Jan Baran, a Republican election lawyer, said Domenici’s request draws from a long-standing and well-worn area of the law that allows Members to draw on existing — and sometimes large — campaign accounts rather than starting over with a legal defense fund, another type of account overseen by the ethics committee.

“The law has allowed campaign funds to be used for campaign or official-related expenses since the law was created in the 1970s,” Baran said. “This is just a political dispute, not a legal dispute, [so] it’s clearly allowed under the election law and has been for a long time.”

On Wednesday, CREW used the FEC’s posting of Domenici’s request letter to demand that the agency compel lawmakers to pay for all legal expenses out of Ethics panel-approved legal defense funds, accounts with separate restrictions on how much, and from whom, contributions may be solicited.

“Yet another member of Congress is asking that funds contributed by his supporters for the purposes of paying for electoral expenses be used to defray legal expenses stemming from unethical or illegal activities,” Sloan said in a statement. “The FEC should change its rules to put an end to this practice that makes campaign donors unwitting contributors to legal defense funds.”

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