Congressional legal defense fund regulations

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When members of Congress and officials of the executive branch get in trouble with the law or have alleged ethical violations, they may establish a fund – commonly referred to as a legal defense fund or legal expense trust – to defend themselves. These funds are governed by House and Senate ethics rules and guidelines from the Office of Governmental Ethics (OGE) which impose various requirements. [House Committee on Standards of Official Conduct, Memorandum to All Members, Officers, and Employees, “Legal Expense Fund Regulations,” House Rule 26 (June 10, 1996). The House Rule on Legal Expense Funds has since been renumbered to Rule XXV(5)(c)(3). U.S. Senate Select Committee on Ethics, “Regulations of Trust Funds to Defray legal Expenses Incurred by Members, Officers, and Employers of the United States Senate, Senate Ethics Manual (Aug. 10, 1988). Office of Government Ethics, Letter to an Alternate Designated Agency Ethics Official (Aug. 30, 1993)]

The rules governing congressional legal defense funds generally are more restrictive and much more specific than the rules governing officials of the executive branch.

Since legal defense funds for congressional and executive branch officials have been deemed by the Federal Election Commission (FEC) to fall outside the realm of campaign finance law, donors may contribute the maximum to a candidate’s campaign and still make an additional contribution to the same official’s legal defense fund. The 2002 federal election law banning corporate and union money to federal officeholders has not been applied by the FEC to ban such contributions to legal defense funds of officeholders, though Senate rules and OGE guidelines prohibit corporate and union contributions to the legal defense funds of Senate members and executive branch officials. House members may receive contributions for their legal defense funds from any source except registered lobbyists and foreign nationals.

Congressional Legal Defense Funds

Here are the main features of a legal defense fund for members of Congress:

  • The fund must first be approved by the respective body’s ethics committee.
  • The individual must appoint a trustee to manage the account.
  • All the funds must be used to pay only for investigative, civil, criminal or other legal proceedings relating to an officeholder’s election to office, official duties while in office and administrative or fundraising expenses of the trust.
  • Contributions to the fund are limited to $5,000 per year in the House from any single source, and $10,000 per year in the Senate. House rules prohibit contributions from lobbyists and foreign nationals; Senate rules prohibit contributions from lobbyists, foreign nationals, corporations, unions and any member’s principal campaign committee.
  • Campaign funds may be transferred by any officeholder into a House member’s legal fund. [Federal Election Commission, Advisory Opinion 2000-40, 2003-15] The use of campaign funds by a legal defense fund, however, must be strictly for legal and administrative expenses associated with the fund and not for personal expenses. Contributions to the fund do not count toward a donor’s limits on campaign contributions or gifts to officeholders. An individual and the individual’s immediate family may make unlimited contributions to their own fund.
  • Quarterly financial reports must be filed with the Legislative Resource Center in the House or the Secretary of the Senate. House and Senate reporting requirements are substantively the same but differ in some technicalities. For example, in the House, the filings shall disclose all contributions and expenditures of $250 or more per year, including the full name and street address of donors and recipients of expenditures. In the Senate, the reporting threshold is $25 per year.

While most legal expenses related to election contests for candidates who are not officeholders must be subject to the limits and reporting requirements of federal election law, members of Congress thus far have been permitted to finance their legal expenses with either surplus campaign funds, legal defense funds established under ethics rules, or both. Since passage of the ban on candidates using corporate or union money to finance their election activities, there has been some controversy as to whether congressional officeholders should be allowed to use both sources of funds to finance election-related litigation. [Amy Keller, "Legal Defense Funds Face Closer Scrutiny," Roll Call (June 18, 2003)]

Acknowledgment: Original article based on a fact sheet by Public Citizen: "Legal Defense Fund Rules for Officials of the Congressional and Executive Branches".

Articles and Resources

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