Q:
My New Year’s resolution is to stop getting parking tickets. I would be embarrassed to count all the money I send each year to the D.C. treasurer for parking fines. Yet a recent article made me wonder if, as a Member of the House, I have to pay these fines with my own money. The article said that at least one other Member pays for parking tickets with campaign funds and that this is allowed under the rules. If this is true, maybe I don’t need a New Year’s resolution after all. I’m not sure how comfortable I would be using campaign funds for parking tickets. But, just out of curiosity, do the rules allow it?

[IMGCAP(1)]A: I presume you are referring to the recent reports that, over the past several years, Rep. Charlie Rangel (D-N.Y.) has used campaign funds to pay roughly $2,000 in parking fines. In fact, Rangel is certainly not the only Member to use campaign funds for parking tickets. In 2005, Sen. John Kerry (D-Mass.) made news when his campaign paid $300 to the City of Boston for overdue parking tickets. Similarly, during the 2008 Democratic presidential primaries, New York Sen. Hillary Rodham Clinton’s campaign reportedly paid parking fines in New Hampshire and South Carolina. And,there are likely many more campaigns that pay parking tickets without making the headlines.

So, is this OK? May Members use campaign funds for parking tickets? Or are all of these Members violating the rules? The answer, as it turns out, isn’t that straightforward. Sometimes Members may use campaign funds for parking tickets and sometimes they may not. The trick is to know the difference.

The House Ethics Manual states that a “Member’s use of campaign funds … is permissible only if it complies with the provisions of both the House Rules and the Federal Election Campaign Act.” In this case, House and Federal Election Commission rules are substantially the same. Both provide that a Member may use campaign funds for “bona fide campaign or political purposes” but may not convert campaign funds to personal use. Personal use is defined as “any use … 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.” While a federal statute defines “personal use” to include any “noncampaign-related automobile expense,” the FEC assesses vehicle expenses on a case-by-case basis.

Under these rules, FEC and House guidance both state that a Member may lease or purchase a vehicle with campaign funds and use that vehicle on an unlimited basis for campaign and official House purposes. A Member may also use campaign funds for the vehicle’s operating expenses, including insurance, maintenance, registration fees and taxes. However — and here’s the key — if a Member uses the vehicle for personal use beyond a de minimis amount, the Member must personally reimburse the campaign “in an appropriate amount.” The House Ethics Manual urges Members to consult the FEC regarding how to determine the appropriate amount.

While it is not always easy to predict exactly what the FEC would say with regard to a particular expense, the commission has issued advisory opinions regarding vehicle expenses that could shed light on how the FEC might view parking tickets. For example, in 2001 a Member sought FEC guidance regarding personal use of a vehicle purchased with campaign funds. The Member estimated that 95 percent of the vehicle’s annual mileage would be campaign-related. The Member proposed maintaining travel records of the mileage for personal use and reimbursing the campaign at the Internal Revenue Service standard mileage rate. The FEC approved the Member’s proposed record-keeping and reimbursement rate. Interestingly, the FEC added that 5 percent annual personal use was de minimis and that, therefore, the Member’s proposed reimbursement was not even necessary.

What does this all mean for parking tickets? In the absence of any guidance directly on point, it would seem reasonable that, under FEC rules, it should be permissible to use campaign funds for parking tickets incurred while a campaign-funded vehicle is being used for campaign or official purposes. Indeed, the 2005 news reports of Kerry’s use of campaign funds for parking tickets included a statement from an FEC spokesman who said that Members may use campaign funds for parking tickets as long as the tickets were “campaign-related.”

But what about parking tickets incurred during personal use of a campaign-funded vehicle? The answer here is less clear. Under the 2001 FEC opinion cited above, one could argue that, if the Member’s personal use of the vehicle was “de minimis,” it would still be permissible for the campaign to pay for the parking tickets. After all, if a Member is not required to pay for the expense associated with de minimis personal use of a vehicle, shouldn’t that also excuse the Member from paying for any parking tickets incurred during such use?

On the other hand, federal law explicitly defines “personal use” to include “a noncampaign-related automobile expense.” The FEC might interpret this to include parking tickets during personal use, meaning that Members could not use campaign funds for such tickets.

Ultimately, only the FEC and the House Committee on Standards of Official Conduct can say for sure when Members may use campaign funds to pay parking tickets and when they may not. I’d say the safest bet would be to keep your New Year’s resolution after all.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.