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Federal Election Commission - RNC and PFC Payment of Presidential Travel Expenses (3)
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Federal Election Commission - RNC and PFC Payment of Presidential Travel Expenses (3)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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Republican National Committee (U.S.)
Presidential election committees
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Presidential campaign, 1976
Presidential trips
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The original documents are located in Box 16, folder "Federal Election Commission - RNC
and PFC Payment of Presidential Travel Expenses (3)" of the Philip Buchen Files at the
Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 16 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
September 2, 1975
not
needed
MEMORANDUM FOR:
JIM CONNOR
FROM:
PHIL BUCHEN
SUBJECT:
Request to the FEC for an
Advisory Opinion
As you requested, attached is a draft request to the Federal
Election Commission for an advisory opinion concerning the
apportionment of Presidential travel expenditures on mixed
official-political trips. Please have this letter staffed with
comments back to me by COB today in order to allow us to
submit this request to the FEC as early as possible tomorrow.
As the request will be on the public record once it is received
by the FEC, I believe the best way to handle the press will be
for Ron Nessen to release the letter at tomorrow morning's
briefing.
Thank you.
Attachment
Political
THE WHITE HOUSE
activities
WASHINGTON
September 2, 1975
MEMORANDUM FOR:
BARRY ROTH
PHIL BUCHEN P.W.B.
FROM:
Please check tomorrow's Federal Register for
a Treasury Department item concerning the tax
aspects of travel by various persons on the
Presidential plane and get a copy for me.
Sept 3.
STATE FORD LIBRARY
THE WHITE HOUSE
chron
WASHINGTON
September 3, 1975
Dear Mr. Curtis:
This is in response to Notice 1975-38 (F. R. 40202) in which
the Federal Election Commission has sought comments concern-
ing a request from the campaign manager for Mr. Louis Wyman
for an opinion of the FEC General Counsel on several questions
relating to possible travel by "President Ford and former
Governor Reagan" to New Hampshire for the purpose of endorsing
Mr. Wyman in the September 16, 1975, special Senatorial election.
The General Counsel has proposed for Commission review an
opinion responding to this request which states, in part, as follows:
"Presidential expenditures in connection
with such a visit provide unique problems of
attribution. It would be illogical, and un-
necessarily restrictive, to require the attribution
of the actual cost of a presidential campaign
foray. Hence, only the equivalent commercial
rates will be chargeable against an incumbent
President's individual contribution limitations
and against the candidate's overall expenditure
limitation. Expenses for accompanying staff
personnel will be charged against the foregoing
limitations only if such staff personnel serve
primarily as advance persons or other campaign
staff members and do not provide support services
to the Office of the President. Additionally, special
costs attendant upon Ford's office as President,
such as the Secret Service, police and medical
attention, are not to be included within this
amount. These costs are relatively fixed and
are related to Ford's position as President and
not to his political function as head of his
party."
-2 -
In the form of comment on this one provision, we wish to bring
to your attention the manner in whi we intend to apportion
the various costs incurred to operate government-owned aircraft
on which the President and accompanying government personnel
travel to and from localities where the President appears for
other than official purposes. As the General Counsel's proposed
opinion indicates, expenditures for such travel by the President
present problems that are unique to his Federal office, in that
the President must continue to perform in his official capacity
at the same time he undertakes political activities.
For this reason, whenever the President travels, regardless of
the purpose of the particular trip, he is accompanied by a number
of persons who are present to support him in his official role.
For example, certain members of the White House staff, military
aides, medical aides, Secret Service and communications personnel
are present not for any political purpose, but solely to provide the
President with support which in many cases they are required by
law to perform. The Secret Service, in particular, is required
by P.L. 90-331 to provide protection to "major Presidential and
Vice Presidential" candidates at the direction of the Secretary of
the Treasury and on the basis of consultation with an advisory
committee of bipartisan congressional membership.
(1) Costs of Operating Government-Owned Aircraft
on Political Trips
When the President travels on a trip which entails
only political stops, the cost of operating the Government-owned
aircraft that are used to transport the President can be readily
determined from the enclosed hourly rate schedule, used by the
Department of Defense to recover its costs from other government
agencies that use military aircraft. In our view, the costs of
transporting any persons aboard the aircraft who are traveling for
political purposes should be borne by the appropriate political
committee. On the other hand, the costs of transporting those
persons who are traveling for the purpose of supporting the Office
of the President should not be attributed to a political committee.
For the purpose of the President's future travels, we will identify
those individuals who could be considered to be present for a
-3-
political purpose. We plan to treat as political travelers the
President and First Family, political committee officials, certain
White House and other officials, who may perform some political
activities, and any other persons whose activities could be viewed
as political. Although White House officials are present for official
support activities, and generally spend a substantial majority, if
not all, of their time on official business, we intend to consider
the following categories of officials to be political for the purpose
of such travel: White House officials who may advise on political
matters (e.g., Donald Rumsfeld, Robert Hartmann, John Marsh,
Ron Nessen, Richard Cheney, etc.), speechwriters, advancemen,
and a White House photographer.
The remainder of the White House personnel is present for the
purpose of supporting the President in his official capacity, e.g.,
a civilian aide or personal secretary, along with non-White House
support personnel, e.g., the Secret Service, military aides,
medical and communications personnel, etc. They are not
present for any political purpose, and the costs of their travel
should not be attributed to a political committee. In this regard,
it is our understanding that in 1972 the Secret Service paid up to
the cost of comparable first-class airfare for its agents traveling
on board chartered aircraft of non-incumbent Presidential candidates.
Therefore, on future Presidential travel the appropriate political
committee will be charged by DOD for its pro rata share of the
hourly costs of using government-owned aircraft, based on the
percentage of the passengers on board who are present mainly
or in part for a political purpose.
(2) Costs of Operating Government-Owned Aircraft
on Mixed Official-Political Trips
In most cases, it is not possible to schedule the
President's travel in a manner that will allow trips to be solely
official or solely political. We believe that the best formula for
apportioning the transportation costs on mixed official-political
purpose trips is one which may be referred to as the "round trip
airfare formula. " Under this formula, the political stops are
-4-
isolated from the official stops in order to establish the political
trip that would have been made if the President did not have the
responsibilities of his office. For this purpose, where a particular
stop includes both official and political events, it will be treated as
a political stop. A stop will be regarded as official when that is
its main purpose, even though the President may meet, incidental
to the official event, with political figures in an informal and
unpublicized meeting, e.g., a private breakfast with a local
political figure or greeting a small group of local politicians.
Once the political stops of such a trip have been determined, DOD
calculates the cost of that "political" trip and charges the appro-
priate political committee for its share, as described above, of
the costs of the trip, based on the round trip flying time between
the initial point of departure, generally, Washington, D. C., and
the political stops made. An example might help to clarify this
approach. Suppose the President makes a trip from Washington
to San Francisco for official purposes, then to Los Angeles for
political purposes, and returns to Washington via St. Louis where
a stop is made for official purposes. Under this formula, the
appropriate political committee is charged for its pro rata share
of the hourly costs of a trip from Washington to Los Angeles and
return to Washington, even though there was no direct Washington
to Los Angeles leg of the flight.
(3) Other Travel Costs
In order to assure that all costs related to the political
portion of a trip are treated as political costs, the appropriate
political committee will be charged the expenses for each political
stop of any member of the Presidential party who is present
mainly or in part for a political purpose, as determined above.
Thus, political funds will pay the expenses of the President and
these other officials, but not the expenses of those persons who
are present to support the President entirely in his official capacity.
Such items as communications arrangements, motorcades,
automobile rentals, and other miscellaneous items are readily
identifiable as to their purpose, and are to be paid by the appro-
priate political committee when they are for political purposes.
-5-
Where an item, such as the cost of a bus for a motorcade involves
a mixed purpose, e.g., transporting the members of the Presidential
party who are considered to be present for a political purpose, and
also those serving the President in his official capacity, the appro-
priate political committee will bear the full cost of that item.
In every case where a candidate for Federal office is an incumbent,
either in an office to which he seeks re-election or in another
office, his campaign activities may become intermingled with
his offic activities, and similar problems will arise in ascertain-
ing which costs he incurs are campaign-related. The proposals
herein made provide a reasonable method for resolving such
problems.
(4) Services of Government Personnel
For the purpose of identifying the costs of travel to be
borne by the appropriate political committee, we understand that
it is not necessary to apportion the salaries of those members of
the personal staffs of incumbent candidates for Federal office
within either the Executive or Legislative Branches who, in
addition to their official duties, also participate in some limited
political activities. For example, employees "paid from the
appropriation for the office of the President "are exempted by
5 U.S.C. 7324(d)(1) from the general prohibition contained in
5 U.S.C. 7324(a)(2) against Executive Branch employees participat-
ing in "political management or in political campaigns." This
section effectively places the White House staff in a position
comparable to that of the personal staffs of members of Congress.
No precise dividing line now exists, nor is one likely to be drawn,
which clearly indicates when such employees are performing
official duties and when those duties are political. So long as
these employees expend a substantial majority (an average in excess of
forty hours per week) of their time on official duties, there is
no need to attribute any portion of the salaries of such employees
to a political committee.
The reason for this letter is to bring to the Commission's attention
the means by which we intend to attribute to a political committee
the costs of the President's travel for purposes of support of the
-6-
Republican Party, support of specific candidates, or support of
his own candidacy. To the extent this treatment may be different
from that proposed by the General Counsel, we do not imply that
a change need be made in the proposed opinion of such counsel.
Rather we believe that the proposed opinion is consistent with the
requirements of the applicable law and that if a more liberal
attribution of expenses is made to a political committee such is
within a candidate's discretion.
We intend to now implement with respect to future travel by the
President, this treatment for attribution of such travel costs.
We would appreciate very much any comments or suggestions
the Commission may think are appropriate to make with respect
to our treatment of the President's travel costs.
Sincerely,
Buchen
Philip Buchen
Counsel to the President
The Honorable Thomas B. Curtis
Chairman
Federal Election Commission
Washington, D.C. 20463
27000 (Air Force One) (VC-137C)
Cost per hour:
$2,206.00
Passengers:
Approximately 50
26000 (Air Force One backup) VC-137C)
Cost per hour:
$2,206.00
Passengers:
Approximately 50
Jet Star (VC-140)
Cost per hour:
$ 889.00
Passengers:
8
White Top Helicopter (VH-3A)
Cost per hour:
$ 723.00
Passengers:
12
Huey Helicopter (VH-IN)
Cost per hour:
$ 262.00
Passengers:
8
mr. Buchens
THE WHITE HOUSE
WASHINGTON
copy
September 3, 1975
Dear Mr. Curtis:
This is in response to Notice 1975-38 (F. R. 40202) in which
the Federal Election Commission has sought comments concern-
ing a request from the campaign manager for Mr. Louis Wyman
for an opinion of the FEC General Counsel on several questions
relating to possible travel by "President Ford and former
Governor Reagan" to New Hampshire for the purpose of endorsing
Mr. Wyman in the September 16, 1975, special Senatorial election.
The General Counsel has proposed for Commission review an
opinion responding to this request which states, in part, as follows:
"Presidential expenditures in connection
with such a visit provide unique problems of
attribution. It would be illogical, and un-
necessarily restrictive, to require the attribution
of the actual cost of a presidential campaign
foray. Hence, only the equivalent commercial
rates will be chargeable against an incumbent
President's individual contribution limitations
and against the candidate's overall expenditure
limitation. Expenses for accompanying staff
personnel will be charged against the foregoing
limitations only if such staff personnel serve
primarily as advance persons or other campaign
staff members and do not provide support services
to the Office of the President. Additionally, special
costs attendant upon Ford's office as President,
such as the Secret Service, police and medical
attention, are not to be included within this
amount. These costs are relatively fixed and
are related to Ford's position as President and
not to his political function as head of his
party."
BERRAD R. FORD 1
-2 -
In the form of comment on this one provision, we wish to bring
to your attention the manner in whi ch we intend to apportion
the various costs incurred to operate government-owned aircraft
on which the President and accompanying government personnel
travel to and from localities where the President appears for
other than official purposes. As the General Counsel's proposed
opinion indicates, expenditures for such travel by the President
present problems that are unique to his Federal office, in that
the President must continue to perform in his official capacity
at the same time he undertakes political activities.
For this reason, whenever the President travels, regardless of
the purpose of the particular trip, he is accompanied by a number
of persons who are present to support him in his official role.
For example, certain members of the White House staff, military
aides, medical aides, Secret Service and communications personnel
are present not for any political purpose, but solely to provide the
President with support which in many cases they are required by
law to perform. The Secret Service, in particular, is required
by P.L. 90-331 to provide protection to "major Presidential and
Vice Presidential" candidates at the direction of the Secretary of
the Treasury and on the basis of consultation with an advisory
committee of bipartisan congressional membership.
(1) Costs of Operating Government-Owned Aircraft
on Political Trips
When the President travels on a trip which entails
only political stops, the cost of operating the Government-owned
aircraft that are used to transport the President can be readily
determined from the enclosed hourly rate schedule, used by the
Department of Defense to recover its costs from other government
agencies that use military aircraft. In our view, the costs of
transporting any persons aboard the aircraft who are traveling for
political purposes should be borne by the appropriate political
committee. On the other hand, the costs of transporting those
persons who are traveling for the purpose of supporting the Office
of the President should not be attributed to a political committee.
For the purpose of the President's future travels, we will identify
those individuals who could be considered to be present for a
-3-
political purpose. We plan to treat as political travelers the
President and First Family, political committee officials, certain
White House and other officials, who may perform some political
activities, and any other persons whose activities could be viewed
as political. Although White House officials are present for official
support activities, and generally spend a substantial majority, if
not all, of their time on official business, we intend to consider
the following categories of officials to be political for the purpose
of such travel: White House officials who may advise on political
matters (e.g., Donald Rumsfeld, Robert Hartmann, John Marsh,
Ron Nessen, Richard Cheney, etc.), speechwriters, advancemen,
and a White House photographer.
The remainder of the White House personnel is present for the
purpose of supporting the President in his official capacity, e.g.,
a civilian aide or personal secretary, along with non-White House
support personnel, e.g., the Secret Service, military aides,
medical and communications personnel, etc. They are not
present for any political purpose, and the costs of their travel
should not be attributed to a political committee. In this regard,
it is our understanding that in 1972 the Secret Service paid up to
the cost of comparable first-class airfare for its agents traveling
on board chartered aircraft of non-incumbent Presidential candidates.
Therefore, on future Presidential travel the appropriate political
committee will be charged by DOD for its pro rata share of the
hourly costs of using government-owned aircraft, based on the
percentage of the passengers on board who are present mainly
or in part for a political purpose.
(2) Costs of Operating Government-Owned Aircraft
on Mixed Official-Political Trips
In most cases, it is not possible to schedule the
President's travel in a manner that will allow trips to be solely
official or solely political. We believe that the best formula for
apportioning the transportation costs on mixed official-political
purpose trips is one which may be referred to as the "round trip
airfare formula. " Under this formula, the political stops are
-4-
isolated from the official stops in order to establish the political
trip that would have been made if the President did not have the
responsibilities of his office. For this purpose, where a particular
stop includes both official and political events, it will be treated as
a political stop. A stop will be regarded as official when that is
its main purpose, even though the President may meet, incidental
to the official event, with political figures in an informal and
unpublicized meeting, e.g., a private breakfast with a local
political figure or greeting a small group of local politicians.
Once the political stops of such a trip have been determined, DOD
calculates the cost of that "political" trip and charges the appro-
priate political committee for its share, as described above, of
the costs of the trip, based on the round trip flying time between
the initial point of departure, generally, Washington, D. C., and
the political stops made. An example might help to clarify this
approach. Suppose the President makes a trip from Washington
to San Francisco for official purposes, then to Los Angeles for
political purposes, and returns to Washington via St. Louis where
a stop is made for official purposes. Under this formula, the
appropriate political committee is charged for its pro rata share
of the hourly costs of a trip from Washington to Los Angeles and
return to Washington, even though there was no direct Washington
to Los Angeles leg of the flight.
(3) Other Travel Costs
In order to assure that all costs related to the political
portion of a trip are treated as political costs, the appropriate
political committee will be charged the expenses for each political
stop of any member of the Presidential party who is present
mainly or in part for a political purpose, as determined above.
Thus, political funds will pay the expenses of the President and
these other officials, but not the expenses of those persons who
are present to support the President entirely in his official capacity.
Such items as communications arrangements, motorcades,
automobile rentals, and other miscellaneous items are readily
identifiable as to their purpose, and are to be paid by the appro-
priate political committee when they are for political purposes.
SERVICE FORD LIBRANT
-5-
Where an item, such as the cost of a bus for a motorcade involves
a mixed purpose, e.g., transporting the members of the Presidential
party who are considered to be present for a political purpose, and
also those serving the President in his official capacity, the appro-
priate political committee will bear the full cost of that item.
In every case where a candidate for Federal office is an incumbent,
either in an office to which he seeks re-election or in another
office, his campaign activities may become intermingled with
his official activities, and similar problems will arise in ascertain-
ing which costs he incurs are campaign-related. The proposals
herein made provide a reasonable method for resolving such
problems.
(4) Services of Government Personnel
For the purpose of identifying the costs of travel to be
borne by the appropriate political committee, we understand that
it is not necessary to apportion the salaries of those members of
the personal staffs of incumbent candidates for Federal office
within either the Executive or Legislative Branches who, in
addition to their official duties, also participate in some limited
political activities. For example, employees "paid from the
appropriation for the office of the President "are exempted by
5 U.S.C. 7324(d)(1) from the general prohibition contained in
5 U.S.C. 7324(a)(2) against Executive Branch employees participat-
ing in "political management or in political campaigns. 11 This
section effectively places the White House staff in a position
comparable to that of the personal staffs of members of Congress.
No precise dividing line now exists, nor is one likely to be drawn,
which clearly indicates when such employees are performing
official duties and when those duties are political. So long as
these employees expend a substantial majority (an average in excess of
forty hours per week) of their time on official duties, there is
no need to attribute any portion of the salaries of such employees
to a political committee.
The reason for this letter is to bring to the Commission's attention
the means by which we intend to attribute to a political committee
the costs of the President's travel for purposes of support of the
-6-
Republican Party, support of specific candidates, or support of
his own candidacy. To the extent this treatment may be different
from that proposed by the General Counsel, we do not imply that
a change need be made in the proposed opinion of such counsel.
Rather we believe that the proposed opinion is consistent with the
requirements of the applicable law and that if a more liberal
attribution of expenses is made to a political committee such is
within a candidate's discretion.
We intend to now implement with respect to future travel by the
President, this treatment for attribution of such travel costs.
We would appreciate very much any comments or suggestions
the Commission may think are appropriate to make with respect
to our treatment of the President's travel costs.
Sincerely,
Counsel to the President
The Honorable Thomas B. Curtis
Chairman
Federal Election Commission
Washington, D.C. 20463
Enclosure
27000 (Air Force One) (VC-137C)
Cost per hour:
$2,206.00
Passengers:
Approximately 50
26000 (Air Force One backup) VC-137C)
Cost per hour:
$2,206.00
Passengers:
Approximately 50
Jet Star (VC-140)
Cost per hour:
$ 889.00
Passengers:
8
White Top Helicopter (VH-3A)
Cost per hour:
$ 723.00
Passengers:
12
Huey Helicopter (VH-IN)
Cost per hour:
$ 262.00
Passengers:
8
THE WHITE HOUSE
chrongt
WASHINGTON
Hugher.
September 3, 1975
Dear Mr. Curtis:
This is in response to Notice 1975-38 (F.R. 40202) in which
the Federal Election Commission has sought comments concern-
ing a request from the campaign manager for Mr. Louis Wyman
for an opinion of the FEC General Counsel on several questions
relating to possible travel by "President Ford and former
Governor Reagan" to New Hampshire for the purpose of endorsing
Mr. Wyman in the September 16, 1975, special Senatorial election.
The General Counsel has proposed for Commission review an
opinion responding to this request which states, in part, as follows:
"Presidential expenditures in connection
with such a visit provide unique problems of
attribution. It would be illogical, and un-
necessarily restrictive, to require the attribution
of the actual cost of a presidential campaign
foray. Hence, only the equivalent commercial
rates will be chargeable against an incumbent
President's individual contribution limitations
and against the candidate's overall expenditure
limitation. Expenses for accompanying staff
personnel will be charged against the foregoing
limitations only if such staff personnel serve
primarily as advance persons or other campaign
staff members and do not provide support services
to the Office of the President. Additionally, special
costs attendant upon Ford's office as President,
such as the Secret Service, police and medical
attention, are not to be included within this
amount. These costs are relatively fixed and
are related to Ford's position as President and
not to his political function as head of his
party."
LIBRARY
-2
In the form of comment on this one provision, we wish to bring
to your attention the manner in which we intend to apportion
the various costs incurred to operate government-owned aircraft
on which the President and accompanying government personnel
travel to and from localities where the President appears for
other than official purposes. As the General Counsel's proposed
opinion indicates, expenditures for such travel by the President
present problems that are unique to his Federal office, in that
the President must continue to perform in his official capacity
at the same time he undertakes political activities.
For this reason, whenever the President travels, regardless of
the purpose of the particular trip, he is accompanied by a number
of persons who are present to support him in his official role.
For example, certain members of the White House staff, military
aides, medical aides, Secret Service and communications personnel
are present not for any political purpose, but solely to provide the
President with support which in many cases they are required by
law to perform. The Secret Service, in particular, is required
by P.L. 90-331 to provide protection to "major Presidential and
Vice Presidential" candidates at the direction of the Secretary of
the Treasury and on the basis of consultation with an advisory
committee of bipartisan congressional membership.
(1) Costs of Operating Government-Owned Aircraft
on Political Trips
When the President travels on a trip which entails
only political stops, the cost of operating the Government-owned
aircraft that are used to transport the President can be readily
determined from the enclosed hourly rate schedule, used by the
Department of Defense to recover its costs from other government
agencies that use military aircraft. In our view, the costs of
transporting any persons aboard the aircraft who are traveling for
political purposes should be borne by the appropriate political
committee. On the other hand, the costs of transporting those
persons who are traveling for the purpose of supporting the Office
of the President should not be attributed to a political committee.
For the purpose of the President's future travels, we will identify
those individuals who could be considered to be present for a
-3-
political purpose. We plan to treat as political travelers the
President and First Family, political committee officials, certain
White House and other officials, who may perform some political
activities, and any other persons whose activities could be viewed
as political. Although White House officials are present for official
support activities, and generally spend a substantial majority, if
not all, of their time on official business, we intend to consider
the following categories of officials to be political for the purpose
of such travel: White House officials who may advise on political
matters (e.g., Donald Rumsfeld, Robert Hartmann, John Marsh,
Ron Nessen, Richard Cheney, etc.), speechwriters, advancemen,
and a White House photographer.
The remainder of the White House personnel is present for the
purpose of supporting the President in his official capacity, e.g.,
a civilian aide or personal secretary, along with non-White House
support personnel, e.g., the Secret Service, military aides,
medical and communications personnel, etc. They are not
present for any political purpose, and the costs of their travel
should not be attributed to a political committee. In this regard,
it is our understanding that in 1972 the Secret Service paid up to
the cost of comparable first-class airfare for its agents traveling
on board chartered aircraft of non-incumbent Presidential candidates.
Therefore, on future Presidential travel the appropriate political
committee will be charged by DOD for its pro rata share of the
hourly costs of using government-owned aircraft, based on the
percentage of the passengers on board who are present mainly
or in part for a political purpose.
(2) Costs of Operating Government-Owned Aircraft
on Mixed Official-Political Trips
In most cases, it is not possible to schedule the
President's travel in a manner that will allow trips to be solely
official or solely political. We believe that the best formula for
apportioning the transportation costs on mixed official-political
purpose trips is one which may be referred to as the "round trip
airfare formula. " Under this formula, the political stops are
SEAL
UNITED
-4-
isolated from the official stops in order to establish the political
trip that would have been made if the President did not have the
responsibilities of his office. For this purpose, where a particular
stop includes both official and political events, it will be treated as
a political stop. A stop will be regarded as official when that is
its main purpose, even though the President may meet, incidental
to the official event, with political figures in an informal and
unpublicized meeting, e.g., a private breakfast with a local
political figure or greeting a small group of local politicians.
Once the political stops of such a trip have been determined, DOD
calculates the cost of that "political" trip and charges the appro-
priate political committee for its share, as described above, of
the costs of the trip, based on the round trip flying time between
the initial point of departure, generally, Washington, D. C., and
the political stops made. An example might help to clarify this
approach. Suppose the President makes a trip from Washington
to San Francisco for official purposes, then to Los Angeles for
political purposes, and returns to Washington via St. Louis where
a stop is made for official purposes. Under this formula, the
appropriate political committee is charged for its pro rata share
of the hourly costs of a trip from Washington to Los Angeles and
return to Washington, even though there was no direct Washington
to Los Angeles leg of the flight.
(3) Other Travel Costs
In order to assure that all costs related to the political
portion of a trip are treated as political costs, the appropriate
political committee will be charged the expenses for each political
stop of any member of the Presidential party who is present
mainly or in part for a political purpose, as determined above.
Thus, political funds will pay the expenses of the President and
these other officials, but not the expenses of those persons who
are present to support the President entirely in his official capacity.
Such items as communications arrangements, motorcades,
automobile rentals, and other miscellaneous items are readily
identifiable as to their purpose, and are to be paid by the appro-
priate political committee when they are for political purposes.
-5-
Where an item, such as the cost of a bus for a motorcade involves
a mixed purpose, e.g., transporting the members of the Presidential
party who are considered to be present for a political purpose, and
also those serving the President in his official capacity, the appro-
priate political committee will bear the full cost of that item.
In every case where a candidate for Federal office is an incumbent,
either in an office to which he seeks re-election or in another
office, his campaign activities may become intermingled with
his official activities, and similar problems will arise in ascertain-
ing which costs he incurs are campaign-related. The proposals
herein made provide a reasonable method for resolving such
problems.
(4) Services of Government Personnel
For the purpose of identifying the costs of travel to be
borne by the appropriate political committee, we understand that
it is not necessary to apportion the salaries of those members of
the personal staffs of incumbent candidates for Federal office
within either the Executive or Legislative Branches who, in
addition to their official duties, also participate in some limited
political activities. For example, employees "paid from the
appropriation for the office of the President "are exempted by
5 U.S.C. 7324(d)(1) from the general prohibition contained in
5 U.S.C. 7324(a)(2) against Executive Branch employees participat-
ing in "political management or in political campaigns. " This
section effectively places the White House staff in a position
comparable to that of the personal staffs of members of Congress.
No precise dividing line now exists, nor is one likely to be drawn,
which clearly indicates when such employees are performing
official duties and when those duties are political. So long as
these employees expend a substantial majority (an average in excess of
forty hours per week) of their time on official duties, there is
no need to attribute any portion of the salaries of such employees
to a political committee.
The reason for this letter is to bring to the Commission's attention
the means by which we intend to attribute to a political committee
the costs of the President's travel for purposes of support of the
in
DEPAIR
DEBT
LIQUARY
-6-
Republican Party, support of specific candidates, or support of
his own candidacy. To the extent this treatment may be different
from that proposed by the General Counsel, we do not imply that
a change need be made in the proposed opinion of such counsel.
Rather we believe that the proposed opinion is consistent with the
requirements of the applicable law and that if a more liberal
attribution of expenses is made to a political committee such is
within a candidate's discretion.
We intend to now implement with respect to future travel by the
President, this treatment for attribution of such travel costs.
We would appreciate very much any comments or suggestions
the Commission may think are appropriate to make with respect
to our treatment of the President's travel costs.
Sincerely,
V.
Counsel to the President
The Honorable Thomas B. Curtis
Chairman
Federal Election Commission
Washington, D. C. 20463
FREE
LIBRARY
27000 (Air Force One) (VC-137C)
Cost per hour:
$2,206.00
Passengers:
Approximately 50
26000 (Air Force One backup) VC-137C)
Cost per hour:
$2,206.00
Passengers:
Approximately 50
Jet Star (VC-140)
Cost per hour:
$ 889.00
Passengers:
8
White Top Helicopter (VH-3A)
Cost per hour:
$ 723.00
Passengers:
12
Huey Helicopter (VH-IN)
Cost per hour:
$ 262.00
Passengers:
8
in '76 Committee / William Lane, Chairman / Jack Blanton, Treasurer / 505 C Street, N.E. / Washington, D.C. 20002 i 202-544-1070
A copy of our report is filed with the Federal Elections Commission and is available for purchase from the FEC, Washington, D.C.
Sentember 3, 1975
Contact: Bob Healy 202/544-1070
FOR IMEDIATE RELEASE:
Washington, D.C. - Senator Lloyd Bentsen (D-Tex.) charged Wednesday that
General Counsel to the Federal Election Commission is seeking to open a "triple
loophole" in the campaign funding law which would benefit only an incumbent President
In a letter to FEC Chairman Thomas B. Curtis, Bentsen responded to a request
for comment on the opinion of FEC counsel John G. Murphy regarding a trip by
President Ford to New Hampshire this month.
Murphy maintains that travel expenses for the New Hampshire trip should not be
charged against Ford's expenditure limit as a candidate for President; that money
spent by the Republican National Committee is not a contribution to the Ford campaign
subject to a $5,000 contribution limit by political parties to candidates for their
presidential nomination; and that, even if expenditure and contribution limits
applied, the Ford campaign should be charged only the "equivalent commercial rates."
"The General Counsel reasons that a Ford appearance in New Hampshire -- five
months before its important Presidential primary, on business that he admits is
political -- will have a major impact only on the Wyman Senate candidacy and merely
a 'carryover effect' on the President's expected candidacy in the New Hampshire
primary," Bentsen said.
Noting that press secretary Ron Nessen has indicated that Ford plans to have
the Republican Party pay for all his political trips this year, Bentsen said "each
time my political committee receives a contribution in cash or in kind from a
qualified political committee, those contributions are subject to a $5,000 limit."
"Each time I make an expenditure for campaign travel, those expenditures are
charged to my $10 million primary expenditure limit -- even if I have been invited
to speak on legislative matters before a Chamber of Commerce or other large group."
"Each time another political committee charters a plane for my campaign travel,
the full charter rate is a contribution to my campaign and a charge against my over-
all expenditure limit."
"I do not advocate limiting the amounts paid by the Federal government to
support the President in his official capacity while on his political travels. I am
not seeking in any way to restrict or hamper the President in carrying out the duties
of his office," Bentsen said.
"Nevertheless, where private money is used to defray the cost of political
travels, the FEC should count the full amount as a contribution or expenditure.
Surely, an incumbent President has enough advantages by virtue of his incumbency
without the Foderal Election Commission carving out additional exceptions from the
law for his sole benefit," Senator Bentsen said.
-30-
THE WHITE HOUSE
PFC
WASHINGTON
September 3, 1975
MEMORANDUM FOR:
JIM CONNOR
FROM:
BARRY ROTH BR
Ray Zook advises that a chartered 727 to Denver for an overnight
stay and return the next day to Washington would cost approximately
$27,000, on the basis of his average costs for the last ten rentals
of such a plane. This figure is subject to a number of variables,
that can only be determined at the precise point in time such a
plane is needed, and which could change this figure. The 727
holds approximately 100 persons, making the approximate per
passenger cost of such a trip $270. It does not have the range
to fly non-stop to California.
Bill Gulley advises that the same trip to Denver aboard Air Force
One would cost $15,500. This plane has a capacity of either 52
or 54 passengers, for an approximate per passenger cost of
either $298 or $287.
Thus, our conclusion that the net per passenger costs of travel
aboard the charter or Air Force One is roughly equivalent is
accurate in this particular case.
cc: Phil Buchen
MERIA R. FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
September 4, 1975
MEMORANDUM FOR:
DICK CHENEY
THROUGH:
PHIL BUCHEN
FROM:
BARRY ROTH
BR
SUBJECT:
FEC Decision on Attribution of Presidential
Travel Expenses to the Wyman Campaign
The Federal Election Commission (FEC) held an open hearing today
at which it discussed the Wyman campaign request for an opinion
concerning what, if any, costs related to a possible Presidential
appearance on behalf of Wyman would be attributed to Wyman's
campaign spending limitation. The FEC formally approved (an
unusual, but favorable action) an opinion of their General Counsel
which held that only the normal commercial rate for travel by the
President, any advancemen and other persons who serve primarily
in a political role, need be attributed to the political campaign.
Both Chairman Curtis and the General Counsel felt that the formula
to be used for the President's political travels, as described in
Phil Buchen's letter, is more restrictive than necessary. The
General Counsel used Don Rumsfeld as an example of a person who
he felt should be considered official. Although the FEC indicated
that they would further examine this formula, their reaction was
definitely favorable. The FEC also approved the portion of the
opinion which stated that in this one particular case, such expenditures
should not be attributed to the Ford Presidential campaign, but indicated
they would not likely be so inclined in other circumstances.
In a related action, the FEC established a task force chaired by
Vice Chairman Staebler (D) and Thompson (R) to study the apportion-
ment of expenditures by all incumbent candidates, and not just the
President.
Finally, in discussing the refusal of the Eugene McCarthy Committee
to allow the FEC to audit their financial records, Chairman Curtis
read from Bo Calloway's letter submitting a PFC fundraising manual to
the FEC for review, and stated that the cooperation exemplified by the
PFC was what the Commission expected from the other political committees.
GREATO R. FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
September 4, 1975
MEMORANDUM FOR:
DICK CHENEY
THROUGH:
PHIL BUCHEN
FROM:
BARRY ROTH
BR
SUBJECT:
FEC Decision on Attribution of Presidential
Travel Expenses to the Wyman Campaign
The Federal Election Commission (FEC) held an open hearing today
at which it discussed the Wyman campaign request for an opinion
concerning what, if any, costs related to a possible Presidential
appearance on behalf of Wyman would be attributed to Wyman's
campaign spending limitation. The FEC formally approved (an
unusual, but favorable action) an opinion of their General Counsel
which held that only the normal commercial rate for travel by the
President, any advancemen and other persons who serve primarily
in a political role, need be attributed to the political campaign.
Both Chairman Curtis and the General Counsel felt that the formula
to be used for the President's political travels, as described in
Phil Buchen's letter, is more restrictive than necessary. The
General Counsel used Don Rumsfeld as an example of a person who
he felt should be considered official. Although the FEC indicated
that they would further examine this formula, their reaction was
definitely favorable. The FEC also approved the portion of the
opinion which stated that in this one particular case, such expenditures
should not be attributed to the Ford Presidential campaign, but indicated
they would not likely be so inclined in other circumstances.
In a related action, the FEC established a task force chaired by
Vice Chairman Staebler (D) and Thompson (R) to study the apportion-
ment of expenditures by all incumbent candidates, and not just the
President.
Finally, in discussing the refusal of the Eugene McCarthy Committee
to allow the FEC to audit their financial records, Chairman Curtis
read from Bo Calloway's letter submitting a PFC fundraising manual to
the FEC for review, and stated that the cooperation exemplified by the
PFC was what the Commission expected from the other political committees.
GERAU FORD
Some items in this folder were not digitized because it contains copyrighted
materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.
THENEW YORK TIMES FRIDAY, EMBER 5, 1975
Political age
C
9
CANDIDATE TO PAY
torial candidate. but not
amount candidates may spend
convention political trips
all touring Government em-
proposed that the cost of ap-
against the ceilings for the ac-
in both primaries and general
should be limited to $5,000
ployes will work at least 40
pearances by national candi-
tual or prospective national
elections and the size of politi-
under the campaign law.
hours a week beyond their
dates on behalf of state and
COST OF FORD TRIP
campaigns of the two visitors.
cal contributions they may re-
ceive.
Mr. Buchen said only tha
travel time with the President.
local candidates be divided
Commissioner Thomas E.
"the appropriate political com-
During the hour-long debate,
The White House contem-
among the spending ceilings
Harris, the sole dissenter,
mittee" would pay for the por-
of the various candidates and
the commission made public
tion of White House travel that
plates apportioning the cost
protested that the agency was
committees as they see fit, but
Election Panel Ruling Applies
a six-page letter from the
of the military aircraft normal-
violating its earlier ruling that
was classed as political under
he withdrew his amendment
White House outlining how the
to New Hampshire Visit
mid-1975 appearances by De-
the formula he proposed.
ly used by the President, which
when it ran into opposition,
President proposes to divide
mocratic Presidential candi-
financing of his travels be-
Before passage of the 1974
ranges from $262 an hour for
leaving another controversial
dates in primary states were
campaign law, White House
an eight-passenger helicopter
question unanswered.
tween public funds for his offi-
By WARREN WEAVER Jr.
part of their 1976 campaign
officials rarely if ever bothered
to $2,206 an hour for Air Force
cial duties and private funds
to differentiate between a Pres-
One.
Special to The New York Times
there, and thus subject to
for campaigning.
WASHINGTON, Sept. 4 -
spending limits.
ident's public activities and his
The legal opinion approved
Ultimately, it will be up to
'One-Shot Exception'
the commission to decide whe-
political campaigning in terms
by the commission today sug-
President Ford and former Gov.
the the White
of who was paying the bills.
gested charging "equivalent
FEDERAL ELECTION COMMISSION
WASHINGTON, DC 20463
1325 K Street, N. W.
Washington, D. C. 20463
September 5, 1975 202-382-5162
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D. C. 20500
Dear Mr. Buchen:
Thank you for your letter of September
3, 1975, responding to the Commission's request
for comment on the proposed Opinion of Counsel
regarding the New Hampshire Senatorial Election
scheduled for September 16, 1975. The information
you supplied with respect to proposed allocation
of costs for presidential travel was and remains
most helpful to the Commission. I wish to stress
that as the Commission develops its rules with
respect to expenditure allocations for presidential
candidacies over the coming months, the informa-
tion and views set forth in your letter will re-
ceive the most careful consideration.
In the meantime the Commission thanks
you for your prompt submission of views with
regard to the immediate problems with the New
Hampshire election.
We look forward to further communiaation
with you with respect to this and other important
problems under the Federal Election Campaign Act
of 1971, as amended.
Sincerely yours,
The B Cout
Thomas B. Curtis
Chairman
TBC:me
FEDERAL ELECTION COMMISSION
WASHINGTON, DC 20463
1325 K Street, N. W.
Washington, D. C. 20463
September 5, 1975
202-382-5162
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D. C. 20500
Dear Mr. Buchen:
Thank you for your letter of September
3, 1975, responding to the Commission's request
for comment on the proposed Opinion of Counsel
regarding the New Hampshire Senatorial Election
scheduled for September 16, 1975. The information
you supplied with respect to proposed allocation
of costs for presidential travel was and remains
most helpful to the Commission. I wish to stress
that as the Commission develops its rules with
respect to expenditure allocations for presidential
candidacies over the coming months, the informa-
tion and views set forth in your letter will re-
ceive the most careful consideration.
In the meantime the Commission thanks
you for your prompt submission of views with
regard to the immediate problems with the New
Hampshire election.
We look forward to further communiaation
with you with respect to this and other important
problems under the Federal Election Campaign Act
of 1971, as amended.
Sincerely yours,
Cout
Thomas B. Curtis
Chairman
TBC :me
Presidential
THE WHITE HOUSE
travel
WASHINGTON
September 8, 1975
Dear Bob:
You may be interested in the enclosed draft of regulations
issued by the Treasury Department which deals in part
with the effects of employer-financed travel on the
employee, his family and his guests. I think the implica-
tions for the President are very favorable.
Best wishes.
Sincerely,
Thil
Philip W. Buchen
Counsel to the President
Mr. Robert J. McBain
Robert J. McBain & Company, P.C.
435 Old Kent Building
Number One Vandenberg Center
Grand Rapids, Michigan 49502
Enclosure
CENTER R. FORD LIBRARY
DRAFT
Remid
Republican
National
Committee.
Mary Louise Smith
Chairman
September 10, 1975
Honorable Thomas B. Curtis
The Federal Election Commission
1325 K Street, N. W.
Washington, D. C. 20005
Dear Chairman Curtis:
As indicated by Philip W. Buchen, Counsel to
the President, on August 7, 1975, the Republican National
Committee (R.N.C.) has undertaken the payment of certain
expenditures incurred by the President, Vice President and
their aides when engaged in National, state or local polit-
ical party promotional activities. He correctly observed
that these R.N.C. expenditures are within the public domain,
having been filed quarterly by the R.N.C. with the Federal
Election Commission, the Clerk of the House of Representa-
tives and the Secretary of the United States Senate. This
correspondence shall serve to further amplify those filings,
to discuss the historical tradition associated with the
President's role and obligation as head of the Republican
Party, to consider alternative sources of payment for such
expenditures, and, finally, to briefly categorize the items
paid for by the Republican National Committee.
Mr. Buchen's letter of September 3, 1975, responded
to F.E.C. Notice 1975-38 (F.R. 80202) wherein the Commission,
"sought comments concerning a request from the Campaign Man-
ager for Mr. Louis Wyman". Counsel's correspondence dis-
closed the method employed by the White House to allocate
the cost of operating Government-owned aircraft on political
and mixed official-political trips by the President, Vice
President and their aides. Accordingly, this Memorandum
will not address itself to the apportionment formula con-
tained in Mr. Buchen's letter of September 3, 1975.
Honorable Thomas B. Curtis
Page 2
September 10, 1975
The question to be considered is:
"DOES THE FEDERAL ELECTION CAMPAIGN LAW OF 1974
HAVE APPLICATION TO THE HISTORICAL TRADITION
OF A NATIONAL POLITICAL PARTY'S PAYMENT OF
EXPENSES INCURRED BY THE PRESIDENT OF THE
UNITED STATES, THE VICE PRESIDENT OF THE UNITED
STATES AND THEIR AIDES WHILE ENGAGED IN NATIONAL,
STATE, OR LOCAL PARTY PROMOTIONAL ACTIVITIES?"
The question of the Federal Election Campaign
Law's application is restricted to expenses incurred for
acts of the President, Vice President and their aides when
engaged in Republican Party political activities and is
not addressed to those expenses incurred by the President,
Vice President and their aides when engaged politically on
behalf of any individual political candidate, including the
candidacy of the President and Vice President themselves.
National political parties in the United States
arose in the late Eighteenth and Nineteenth centuries.
What had been largely legislative parties evolved into con-
stituency-based parties when the states expanded male suf-
frage by eliminating property-owning and taxpaying qualifi-
cations for the voting franchise. Although not mentioned
in the American Constitution, National political parties
have historically served to effectuate, organize and promote
the exercise of the franchise right by the electorate.
In the early days of the Republic, Federal candi-
dates had no great need for funds to reach a vast popular
electorate. The electorate was widely scattered, served
by a primitive communication system and largely restricted
in its size by racial, sexual and property holding quali-
fications. The typical campaign was waged, almost exclu-
sively, in the newspapers and financed largely by the indi-
vidual candidates themselves. With the abolition of voting
right restrictions, a new electorate resulted. To service,
to communicate and to persuade that new electorate, National
political parties evolved.
Honorable Thomas B. Curtis
Page 3
September 10, 1975
The American President has traditionally served
as the leader of his party. President John F. Kennedy
viewed the presidents' partisan role in the following
manner:
"No President, it seems to me, can
escape politics. He has not only been
chosen by the nation--he has been chosen
by his party
if he neglects the
party machinery and avoids his party's
leadership--then he has not only weakened
the political party.
he has dealt
a blow to the democratic process itself. "1/
In the minds of the public, the programs of the President
are also the programs of his party; his personal success
or failure becomes the party's success or failure. The
Chief Executive is the embodiment of his party.
Thomas W. Madron and Carl P. Chelf, 1974 treatise
titled Political Parties in the United States, commented
on the President's role as head of the party:
"Frequently the party and the executive
constitute a sort of mutual accommodation
society
the executive uses the party
as a channel for interacting with other
elements in the political system, while
on other occasions the executive will
function as a vehicle for promoting party
goals. "
But, who shall assume the cost incurred when the executive
so functions?
Quoted by Stuart G. Brown, The American Presidency:
Leadership, Partisanship, and Popularity (New York: The
Macmillan Co., 1966) Flyleaf.
2/
Mandron and Chelf, Political Parties in the United
States, Holbrook Press, 1974, at page 286.
Honorable Thomas B. Curtis
Page 4
September 10, 1975
The Federal Election Campaign Law of 1974
reflects definitional distinctions between a "national
committee" [2 U.S.C. 431(1)], a "state committee" [2 U.S.C.
431 (1) and a "political committee" [2 U.S.C. 431 (d) ].
These distinctions are indicative of Congress' recognition
of the existence of general partisan activity conducted
on an ongoing basis by National political parties when
compared to those activities of a specific candidate's
organization seeking election to a specific office within
a specific geographical area. State and National party
organizations engage in a day-to-day business which,
among other things, includes maintaining offices, staffs,
telephones, registration drives, speaker programs, pub-
lications, research, travel, fund raising, convention
arrangements and voter education in both election and non-
election years. The 1974 Act contains no limiting provi-
sion for contributions to and/or expenditures by a National
or State political party for these functions. The Act does
limit the amounts that National and State parties may con-
tribute to individual candidates for office, but does not
impose a maximum monetary budget for the conduct of on-
going party business.
Political campaign committees accept contribu-
tions and make expenditures that are identifiable with
that committee's support of its particular candidate for
a particular office. National political parties, conversely,
are charged with the ongoing responsibility of creating
voter recognition of party identity and ideology, without
reference to an individual candidate or election. A large
measure of this function is performed by the President,
Vice President and their aides on behalf of their National
and State parties. When these party functions are per-
formed and costs result from same, the beneficiary of those
functions, i.e., the National or State political parties,
should and does assume the cost incurred.
Obviously, some slight personal political divi-
dends may accrue to an incumbent President traveling and
speaking on his National party's behalf simply by the
Presidential exposure. Such incidentials, as name recog-
nition and constituency exposure, are not specifically
Honorable Thomas B. Curtis
Page 5
September 10, 1975
prohibited by the Federal Election Campaign Law and are,
in fact, reserved under the Act, itself, to incumbent
United States Senators and Representatives seeking re-
election by virtue of the Act's allowed continuing use
of franked mail privileges after a declaration of candi-
dacy [2 U.S.C. 439 (b) The legislative body that enacted
the Federal Election Campaign Law rightfully concluded that
a declaration of candidacy should not prohibit a legis-
lator from continuing to conduct his or her usual, routine
ongoing business, and thereby allowed continued free mail-
ing privileges even when seeking reelection. To postu-
late a different rule for an incumbent President seeking
reelection, and thereby mandating an abdication by an
rolo
10
incumbent President of his continuing to conduct routine
ongoing National party obligations, would be manifestly
unfair. He would be required, as President Kennedy sug-
gested, to avoid the party's leadership role he was chosen
to fulfill, and thereby weakening his political party and
dealing a blow to the democratic process itself.
Congress further recognized Congressional office-
holders' needs for supportive funds during the period of
their incumbency. Section 439 (a) of the Act permits Con-
gressional candidates to use political contributions
received, in excess of expenditures incurred, to defray
the "ordinary and necessary" expenses associated with the
activities of a Federal officeholder, subject only to dis-
closure to the Federal Election Commission. The ordinary
and necessary expenses associated with the activities of
Federal legislative officeholders are not dissimilar to
those activities undertaken by a Presidential party head
in furtherance of his National party's goals.
Partisan political activity is a recognized
and Federally codified facet of an incumbent President's
ordinary business. The purpose of the Federal Hatch Act
(5 U.S.C. 7321, et seq.) is to prohibit partisan political
activities by employees of the Executive Branch of the
Federal government. That prohibition excludes employees
of the Office of the President. This statutory exclusion
Honorable Thomas B. Curtis
Page 6
September 10, 1975
is a Congressional recognition of the inherent partisan
nature and duties of the Presidency. It does not neces-
sarily follow that because Congress recognized the polit-
ical role of the President of the United States as head
of his party, and authorized his aides to assist him in
fulfilling that role, that the expenses thereby incurred
should be borne by the Treasury of the United States.
As suggested earlier, the more feasible and practical
alternative to the taxpayer bearing these costs is that
payment of these obligations be assumed by the beneficiary
of the acts, i.e., the President's National political
party.
In 1975, the Republican National Committee
allocated the sum of Five Hundred Thousand Dollars
($500,000) to support the activities of the President,
the Vice President and their aides when engaged in the
role as head of the National party. This budgetary allot-
ment is consistent with past years budgets, without regard
to the year in question was an election or nonelection
year. On September 1, 1975, the Republican National
Committee had received and paid bills totaling Three
Hundred Nine Thousand Dollars ($309,000) toward the annual
allotment. The Republican National Committee has filed
quarterly reports reflecting its quarterly expenditures
with the Federal Election Commission since the establish-
ment of that agency. The Republican National Committee
believes that it is the proper body to assume these expen-
ditures, just as presumably, the Democratic National Com-
mittee believed it was the proper body to pay the expenses
incurred by Democratic Presidents engaged in their National
party affairs during the years 1960 through 1968.
When the President, Vice President and their
aides are engaged in political activity on behalf of their
National or State political parties, the R.N.C. assumes
the cost of their travel and transportation, advance men
expense, telephone and telegraph cost and the cost of
receptions incidental to those activities. In addition,
the Republican National Committee assumes the costs incurred
for films and photographs taken during such Presidential
Honorable Thomas B. Curtis
Page 7
September 10, 1975
travel and the expense of Presidential and Vice Presi-
dential gifts such as cuff links, tie bars and charm
bracelets picturing the Presidential or Vice Presidential
seal.
The Republican National Committee does not
assume the expenses resulting from Presidential and Vice
Presidential travel incurred when engaged in Presidential
or Vice Presidential candidacy or travel associated with
the candidacy of other individuals. In those instances,
the candidate's committee is required to pay all cost,
in accordance with the strictures of the Federal Election
Campaign Law. With one notable exception, the R.N.C.
does not pay any of the expense associated with Presi-
dential official travel, i.e., travel occurring as an
adjunct to the Chief Executive's role as President of
the United States, having no political overtones. That
exception is the expenditures incurred by advance men
during Presidential official travel. These charges are
incurred by individuals, most frequently not employed by
the Government, and not engaged in any official Govern-
mental business. Although the National Committee is not,
per se, a beneficiary of official Presidential travel, it
assumes the advance men cost on official trips in the
belief that such an expenditure from the United States
Treasury would be unjustified. All other expenditures
incurred during the Presidential official travel are borne
by the White House budget.
The differing roles of a Presidential candidate
and a Presidential party leader are sometimes subtle, but
nonetheless real and subject to dispassionate analysis.
The past and present system of payments by National polit-
ical parties for expenses incurred by the President, Vice
President and their aides for party promotional activity
has the virtue of fairness. The alternatives, full payment
of Presidential party promotional expenses by the taxpayers
or, in those years when applicable, by the incumbent Presi-
dent's campaign committee, are simply not practicable.
The former would constitute an improper expenditure of
Honorable Thomas B. Curtis
Page 8
September 10, 1975
Government funds and the latter imposes an equitable
disadvantage upon incumbent Presidents seeking re-election,
requiring them to deplete a significant amount of their
Ten Million Dollar ($10,000,000) primary election limit
for expenses unrelated to their primary campaign effort.
Incumbency would then become a serious political liability
to an American President.
The Republican National Committee plans to con-
tinue to implement the procedures outlined in this commu-
nication. We would appreciate very much any comments or
suggestions that the Commission may think appropriate to
make with respect to our treatment of the payment of
expenses incurred by the President, the Vice President
and their aides when engaged in party promotional activities.
Sincerely yours,
MARY LOUISE SMITH
Chairman
Republican
National
Pary
Committee.
copy
Mary Louise Smith
Chairman
September 15, 1975
Honorable Thomas B. Curtis
The Federal Election Commission
1325 K Street, N. W.
Washington, D. C. 20005
Dear Chairman Curtis:
As indicated by Philip W. Buchen, Counsel to
the President, on August 7, 1975, the Republican National
Committee (R.N.C.) has undertaken the payment of certain
expenditures incurred by the President, Vice President and
their aides when engaged in National, state or local polit-
ical party promotional activities. He correctly observed
that these R.N.C. expenditures are within the public domain,
having been filed quarterly by the R.N.C. with the Federal
Election Commission, the Clerk of the House of Representa-
tives and the Secretary of the United States Senate. This
correspondence shall serve to further amplify those filings,
to discuss the historical tradition associated with the
President's role and obligation as head of the Republican
Party, to consider alternative sources of payment for such
expenditures, and, finally, to briefly categorize the items
paid for by the Republican National Committee.
Mr. Buchen's letter of September 3, 1975, responded
to F.E.C. Notice 1975-38 (F.R. 80202) wherein the Commission,
"sought comments concerning a request from the Campaign Man-
ager for Mr. Louis Wyman". Counsel's correspondence dis-
closed the method employed by the White House to allocate
the cost of operating Government-owned aircraft on political
and mixed official-political trips by the President, Vice
President and their aides. Accordingly, this Memorandum
will not address itself to the apportionment formula con-
tained in Mr. Buchen's letter of September 3, 1975.
STATE R. FORD LIBRARY
Dwight D. Eisenhower Republican Center: 310 First Street Southeast, Washington, D.C. 20003. (202) 484-6500.
Honorable Thomas B. Curtis
Page 2
September 15, 1975
The question to be considered is:
"DOES THE FEDERAL ELECTION CAMPAIGN LAW OF 1974
HAVE APPLICATION TO THE HISTORICAL TRADITION
OF A NATIONAL POLITICAL PARTY'S PAYMENT OF
EXPENSES INCURRED BY THE PRESIDENT OF THE
UNITED STATES, THE VICE PRESIDENT OF THE UNITED
STATES AND THEIR AIDES WHILE ENGAGED IN NATIONAL,
STATE, OR LOCAL PARTY PROMOTIONAL ACTIVITIES?"
The question of the Federal Election Campaign
Law's application is restricted to expenses incurred for
acts of the President, Vice President and their aides when
engaged in Republican party political activities and is
not addressed to those expenses incurred by the President,
Vice President and their aides when engaged politically on
behalf of any individual political candidate, including the
candidacy of the President and Vice President themselves.
National political parties in the United States
arose in the late Eighteenth and Nineteenth centuries.
What had been largely legislative parties evolved into con-
stituency-based parties when the states expanded male suf-
frage by eliminating property-owning and taxpaying qualifi-
cations for the voting franchise. Although not mentioned
in the American Constitution, National political parties
have historically served to effectuate, organize and promote
the exercise of the franchise right by the electorate.
In the early days of the Republic, Federal candi-
dates had no great need for funds to reach a vast popular
electorate. The electorate was widely scattered, served
by a primitive communication system and largely restricted
in its size by racial, sexual and property holding quali-
fications. The typical campaign was waged, almost exclu-
sively, in the newspapers and financed largely by the indi-
vidual candidates themselves. With the abolition of voting
right restrictions, a new electorate resulted. To service,
to communicate and to persuade that new electorate, National
political parties evolved.
FORD STATE LIBRARY
Honorable Thomas B. Curtis
Page 3
September 15, 1975
The American President has traditionally served
as the leader of his party. President John F. Kennedy
viewed the Presidents' partisan role in the following
manner:
"No President, it seems to me, can
escape politics. He has not only been
chosen by the nation--he has been chosen
by his party
if he neglects the
party machinery and avoids his party's
leadership--then he has not only weakened
the political party
he has dealt
a blow to the democratic process itself. 1/
In the minds of the public, the programs of the President
are also the programs of his party; his personal success
or failure becomes the party's success or failure. The
Chief Executive is the embodiment of his party.
Thomas W. Madron and Carl P. Chelf, 1974 treatise
titled Political Parties in the United States, commented
on the President's role as head of the party:
"Frequently the party and the executive
constitute a sort of mutual accommodation
society
the executive uses the party
as a channel for interacting with other
elements in the political system, while
on other occasions the executive will
function as a vehicle for promoting party
goals. "
But, who shall assume the cost incurred when the executive
so functions?
Quoted by Stuart G. Brown, The American Presidency:
Leadership, Partisanship, and Popularity (New York: The
Macmillan Co., 1966) Flyleaf.
Mandron and Chelf, Political Parties in the United
States, Holbrook Press, 1974, at page 286.
GENERAL FORD LIBRARY
Honorable Thomas B. Curtis
Page 4
September 15, 1975
The Federal Election Campaign Law of 1974
reflects definitional distinctions between a "national
committee" [2 U.S.C. 431 (1)], a "state committee" [2 U.S.C.
431 (1)], and a "political committee" [2 U.S.C. 431 (d) ].
The distinctions are indicative of Congress' recognition
of the existence of general partisan activity conducted on
an ongoing basis by National political parties when
compared to those activities of a specific candidate's
organization seeking election to a specific office within
a specific geographical area. National and State party
organizations engage in day-to-day business which, among
other things, includes maintaining offices, staffs,
telephones, registration drives, speaker programs, pub-
lications, research, travel, fund raising, convention
arrangements and voter education in both election and non-
election years. The 1974 Act contains no limiting provi-
sion for expenditures by a National or State political party
for these functions. The Act does limit the amounts that
National and State parties may contribute to, or spend on
behalf of, individuals seeking, "
Nomination for
election, or for election, to Federal office
(18 U.S.C.
608), but it does not impose a maximum monetary budget for
the conduct of ongoing party business.
Political campaign committees accept contributions
and make expenditures that are identifiable with the com-
mittee's support of its particular candidate for a particular
office. National political parties, conversely, are charged
with the ongoing responsibility of promoting voter registration
and creating voter recognition of party identity and ideology,
without reference to an individual candidate or election.
A large measure of this function is performed by the President,
Vice President and their aides on behalf of their National
and State parties. When these party functions are performed
and costs result from same, the beneficiary of those functions,
i.e., the National or State political parties, should and
does assume the cost incurred.
Partisan political activity is a recognized and
Federally codified facet of an incumbent President's ordinary
business. The purpose of the Federal Hatch Act (5 U.S.C.
7321, et seq.) is to prohibit partisan political activities
by employees of the Executive Branch of the Federal Govern-
ment. That prohibition excludes employees of the Office of
FORD LIBRARY
Honorable Thomas B. Curtis
Page 5
September 15, 1975
the President and the President, himself. This statutory
exclusion is a Congressional recognition of the inherent
partisan nature and duties of the Presidency. It does not
necessarily follow that because Congress recognized the
political role of the President of the United States as
head of his party, and authorized his aides to assist him
in fulfilling that role, that the expenses thereby incurred
should be borne by the Treasury of the United States. As
suggested earlier, a more feasible and practical alternative
to the taxpayer bearing these costs is that payment of
these obligations be assumed by the beneficiary of the
acts, i.e., the President's National Political Party.
The obligation to assume a party role for one's
National Political Party is not restricted to the President
of the United States. Senators and Congressmen frequently
are called upon to function as spokesmen for, to aid in
fund raising events of, and, generally, to represent their
own National Political Party. Such a party role is often
undertaken by Members of Congress after announcing their
candidacy for reelection to the position they presently hold
and/or after announcing their candidacy to the Office of
President of the United States. The costs incurred by a
United States Senator, who is an announced candidate for the
Presidency, when attending a fund raising event for his
National or State Party should not deplete his Ten Million
Dollar ($10,000,000) Presidential primary effort. The party
role performed by such individuals, acting as party spokesmen
at party function, is identical to that party role of a
President. Neither incurs the expenditures associated with
their role in furtherance of their quest,
"
for nom-
ination for election, or for election, to Federal office
"
(18 U.S.C. 608). Democratic National Committee Chairman
Strauss' September 5, 1975, press release reflected his
disagreement with this principle and argued:
"Suppose I as Chairman of the Democratic
Party, should name one of our presidential
candidates, or four of them, or all of them,
as party leaders and sent them around the
country at D.N.C. expense, without limit,
and without allocating charges against their
spending limits?"
OFFICER
Honorable Thomas B. Curtis
Page 6
September 15, 1975
Where the purpose of an expenditure is not for furthering
an individual's candidacy, it is both wrong and unjust to
insist that the political status of an individual's candidacy
automatically denies to the National Political Parties the
party services of its party spokesmen. If that is to be the
result, then an artificial distinction has been established
which ignores the purpose of the expenditure and, at the
same time, expands 18 U.S.C. §608 to limit expenditures
which are made for purposes other than those covered by the
statute.
In 1975, the Republican National Committee allocated
the sum of Five Hundred Thousand Dollars ($500,000) to support
the activities of the President, the Vice President and their
aides when engaged in a party role. This budgetary allotment
is consistent with past years budgets, without regard to whether
the year in question was an election or nonelection year.
On September 1, 1975, the Republican National Committee had
received and/or paid bills totaling Three Hundred Nine
Thousand Dollars ($309,000) against the annual allotment.
The National Party and various State Parties have been
substantially aided financially and otherwise by this effort.
The purpose of the travel associated with these payments by
R.N.C. was not to further the candidacy of the incumbent
President, but rather to further Republican Party interest.
The Republican National Committee has filed quarterly reports
reflecting its quarterly expenditures with the Federal
Election Commission since the establishment of that agency.
The Republican National Committee believes that it is the
proper body to assume these expenditures, just as the Demo-
cratic National Committee believed it was the proper body to
pay the expense incurred by Democrat Presidents engaged in their
National party affairs during the years 1960 through 1968.
When the President, Vice President, and their aides
are engaged in political activity on behalf of their National,
State or Local political parties, the R.N.C. assumes the
cost of their travel and transportation, advance men expense,
telephone and telegraph cost and the cost of receptions
incidental to those activities. In addition, the Republican
National Committee assumes the costs incurred for films and
photographs taken during such Presidential travel and the
expense of Presidential and Vice Presidential gifts such as
cuff links, tie bars and charm bracelets picturing the
Presidential or Vice Presidential seal.
FORD
STATES
LIBRARY
Honorable Thomas B. Curtis
Page 7
September 15, 1975
The Republican National Committee does not assume
the expenses resulting from Presidential travel incurred when
engaged in Presidential candidacy or Presidential travel asso-
ciated with the candidacy of other individuals. In those
instances, the candidate's committee is primarily responsible
for the payment of cost, in accordance with the structures of
the Federal Election Campaign Law. With one notable exception,
the R.N.C. does not pay any of the expense associated with
Presidential official travel, i.e., travel undertaken by the
President of the United States in his role as Chief Executive.
That exception is for certain expenditures incurred by advance
men in relation to official travel by the President. These ex-
penditures, which in most cases are for persons not employed
by the Government, are assumed by the R.N.C. because the
Chief Executive's appearances, regardless of their purpose,
further party interest. All other expenditures incurred
during the Presidential official travel are borne from
appropriated funds.
The differing roles of a Presidential candidate
and a Presidential party leader are sometimes subtle, but
nonetheless real and subject to dispassionate analysis.
The past and present system of payments by National polit-
ical parties for expenses incurred by the President, Vice
President and their aides for party promotional activity
has the virtue of fairness. The alternatives, full payment
of Presidential party promotional expenses by the taxpayers
or, in those years when applicable, by the incumbent Presi-
dent's campaign committee, are simply not practicable.
The former would constitute an improper expenditure of
Government funds and the latter imposes an inequitable dis-
advantage upon incumbent Presidents seeking reelection,
requiring them to deplete a significant amount of their
Ten Million Dollar ($10,000,000) primary campaign effort.
Incumbency would then become a serious political liability
to an American President.
The Republican National Committee plans to con-
tinue to implement the procedures outlined in this commu-
nication. Naturally, the records of the R.N.C. reflecting
these past expenditures are available for inspection by
the F.E.C., should the Commission so desire. We would appre-
ciate very much any comments or suggestions that the Com-
mission may think appropriate to make with respect to our
FORD
GERALD
LEVERTY
Honorable Thomas B. Curtis
Page 8
September 15, 1975
treatment of the payment of expenses incurred by the Presi-
dent, the Vice President and their aides when engaged in
party promotional activities.
Sincerely yours,
MARY LOUISE SMITH
Chairman
STATE FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
Date 9/19
TO: PWB
FROM:
Barry Roth
For your information. Bob
Visser informs me that the
FEC may also be contacting
you for the purpose of
discussing our letter on
fund allocation in connection
with their task force's overall
study. This is no problem.
MEMORANDUM
September 16, 1975
TO:
Bo Callaway
Dave Packard
FROM:
Bob Visser
REV
RE:
Task Force on Allocation of Funds -
Federal Register Notice
Attached hereto is an FEC Memorandum regarding a
proposed Federal Register Notice setting forth questions
concerning allocation of funds. I would appreciate it if
you would please review the proposed questions and let me
have any comments or suggestions.
I should note that with regard to question numbered
9, with respect to apportionment of fund raising expenses
for Presidential candidates on a state by state basis, the
General Counsel has informally advised me that it is the
conclusion of his legal staff that the 20% allocation formula
for fund raising expenses is not applicable to the states
but will be charged only against the $10,000,000 "expenditure
limitation".
There is a meeting of this task force this afternoon
at 3:00 PM and I would appreciate any thoughts you have
with regard to this list of questions, or other additional
questions you would like to see submitted, given to me by
noon today.
Thank you.
CC:
Phil Buchen
Bob Moot
em
FORD
FEDERAL ELECTION COMMISSION
WASHINGTON, DC 20463
September 18, 1975
MEMORANDUM TO: THE TASK FORCE ON ALLOCATION OF FUNDS
FROM:
Bill Loughrey
SUBJECT:
Proposed Federal Register Publication (for your comments)
The Federal Election Commission is preparing Regulations
and Policy Statements to implement the Federal Election Campaign Act
of 1974. Any interested person (s) or organization (s) are invited to
submit written comments to the FEC concerning any part of this Notice.
A. The Commission seeks guidance and comments on the
allocation of contributions and expenditures:
(1) among candidates;
(2) between political party committees and the
candidates they support;
(3) between non-party committees and the candidates
they support.
B. The Commission hopes to promulgate general principles
for allocating contributions and expenditures among candidates and
committees. The Commission solicits public comments on developing
a basic philosophy for such allocations. In general:
I
(1) Should the rules be as simple and general as possible,
or should they be more detailed; thereby giving candidates and
committees specific guidance?
(2) Should the Commission simply allow reasonable estimated
allocations among candidates and committees; thereby risking possible
inequities and difficulties in enforcement or should it provide for
comprehensive, specific regulations and thus reduce the possibilities
for inequities but increase the regulation of campaigns and the
complexity of campaign finance laws?
(3) Should political party and non-party committees
be treated differently?
STATE FORD LIBRARY
MEMORANDUM TO: THE TASK FORCE ON ALLOCATION OF FUNDS
September 18, 1975
Page Two
(4) Should allocation formulas rely on self-policing
or on enforcement and compliance actions on the part of the Commission?
(5) Should allocation systems be structured as much as
possible to allow candidates free choice within reasonable bounds?
The Commission also solicits public comment on specific
problems in allocating contributions and expenditures. Below, the
Commission cites these problems and gives some examples for illustra-
tive purposes. Specifically, how should the Commission provide for
the allocation:
(1) of political travel expenses for incumbent Presidents?
For security reasons, Presidents must use special transportation such
as Air Force One. For both safety and official government purposes,
members of the President's staff frequently accompany him on political
trips. The President may make public appearances as titular head of
his Party. The President may also combine official government
activities with those that are political or campaign-related in nature.
To what extent should such activities be classified as political
expenditures and be attributable to expenditure limitations?
(2) of travel expenses for non-incumbent candidates
for President? Are all travel expenses by a candidate for President
chargeable to the candidate's expenditure limitation?
(3) of travel expenses for incumbent Members of
Congress? Members of Congress are allowed a specified number of trips
to their State or Districts at government expense. Are all trips
above this allotment a "political expenditure"? Are such "official
business" trips campaign expenditures if political appearances are made?
(4) of travel expenses of non-incumbent candidates
for Congress?
(5) of travel expenses for candidates campaigning on
behalf of other candidates? Should such costs be charged to both
candidates, a portion to each candidate, or to neither candidate?
(6) of travel expenses of nationally prominent figures
who campaign on behalf of candidates? Are such outlays contributions
"in-kind"?
FORD LIBRARY
MEMORANDUM TO: THE TASK FORCE ON ALLOCATION OF FUNDS
September 18, 1975
Page Three
(7) of expenses between private personal expenses and
campaign expenditures? Candidates may buy new suits and other similar
items for campaign appearances and activities. A candidate may take -
a family vacation and bring along his campaign staff. To what
extent are such activities campaign expenditures?
(8) of expenses for public appearances which are political
but not directly campaign related? For example, a candidate may
appear as a Party Official at a Party function.
(9) of fundraising expenses for Presidential candidates?
Should fundraising expenses for Presidential candidates be allocated
on a State-by-State basis?
(10) of expenditures of Presidential candidates for
National headquarters?
(11) of expenditures for partisan registration and
get-out-the-vote activities which benefit, directly or indirectly,
candidates for Federal Office?
(12) of expenses for mass mailings, phone banks and other
similar activities by multi-candidate and political party committees
on behalf of two or more Federal candidates?
(13) of consulting services, photographic and recording
services and other similar services provided on a pooled basis by
multi-candidate and political party committees to two or more Federal
candidates?
(14) of goods and services provided by the Senate Recording
Studio, House Recording Studio, Republican or Democratic Senatorial
Campaign Committee, the Democratic National Congressional Committee or
National Republican Congressional Committee to Members of Congress
or candidates for Federal office?
(15) of expenditures made jointly by two or more Federal
candidates on their own behalf?
(16) of paid workers, headquarters and other goods and
services provided by political parties to all candidates on the Party
ticket?
(17) of day-to-day administrative and general overhead
expenses of multi-candidate and political party committees?
GERALD FORD LIBERTY
MEMORANDUM TO: THE TASK FORCE ON ALLOCATION OF FUNDS
September 18, 1975
Page Four
(18) of expenditures made by an individual running
for more than one Federal office?
(19) of fundraising expenses by multi-candidate or political
Party committees made directly or indirectly, on behalf of identifiable
candidates for Federal office?
(20) of expenditures made jointly by or on behalf of
both State or local and Federal candidates?
(21) of expenditures between primary and general
elections?
(22) of expenditures made in two or more States?
WL:jet
R. FORD LIBRANY
THE WHITE HOUSE
FEC
WASHINGTON
September 19, 1975
MEMORANDUM FOR:
JIM CONNOR
THROUGH:
PHIL BUCHEN
T.W.B.
FROM:
BARRY ROTH
BR
SUBJECT:
Status on FEC Related Questions
Referencing your request, the following should bring you up-
to-date on the "legal" questions raised by Dick Cheney
concerning the payment of various Presidential expenditures:
Are we going to seek a final authoritative ruling? Not exactly.
The RNC has instead written to the FEC (at Tab A) explaining
their practice of making expenditures on behalf of the
President and Vice President, inviting the FEC to examine
their financial records, advising that the RNC intends to
continue to make these expenditures, and finally requesting
comments or suggestions from the FEC on this practice.
Although the RNC letter did not request an advisory opinion,
the FEC General Counsel told Bill Cramer that they will
probably treat it as a request for an advisory opinion.
With respect to our formula for the apportionment of travel
expenses between the appropriate political committee and
the government, Chairman Curtis has written to Phil Buchen
(at Tab B) thanking him for our letter. No comments from
the FEC will be made at this time, although informally they
have indicated that we are unnecessarily restrictive in
requiring the political committee to pay travel of persons
they view to be primarily official.
Have we resolved the question of how we handle the staff
traveling on the press plane? No, and in order to preserve
our flexibility we recommend that we wait at least until the
FEC has responded to the RNC. Phil Buchen explained the
press travel account to the FEC in his letter of August 7,
and at that time invited the FEC to look at our records for
this account. From an FEC standpoint, an immediate change
- 2 -
is unnecessary. At the present time, only the Press Office
staff travels "free" aboard the plane. All other passengers
pay their own way. At least for the interim, this practice
is satisfactory.
With respect to the remaining questions concerning continued
RNC expenditures, we must await the FEC response to the
RNC. We believe that the concept of the President's role as
head of the party as presented by the RNC does have merit.
However, we can not safely predict what the FEC opinion will
be. An appearance of abuse of this practice could be used by
the FEC to justify an adverse ruling. From a quantitative
standpoint, our plans to have approximately 40 RNC trips, but
no candidate trips during the remainder of the year, do
raise such questions.
Although no clear dividing line exists, the President's speech
to the Republican women in Dallas does seem to be very similar
to the type of speech a candidate would give. Even though the
invitation to appear comes from the RNC, we must also look
at what the President says and does at a particular event. For
these reasons, we recommend that consideration be given to
at least a few candidate trips this year. In addition, before
finally determining who pays for any trip, we should review
the transcript of the speeches that were actually made, and
not just the drafts that were staffed out. We believe that we
should discuss these points further as soon as possible.
You should also be aware that the FEC last week adopted language
in an advisory opinion to suggest that, as a general policy,
their rulings will be prospective in application on questions
where the law is not clear and the candidate has acted in good
faith by following traditional practices. The RNC has requested
that we not rule out the possibility of their appealing an adverse
ruling to the courts. However, the President, at his Tuesday
press conference, stated that we would follow any FEC rulings
in this regard.
THE WHITE HOUSE
WASHINGTON
September 10, 1975
MEMORANDUM FOR:
JIM CONNOR
D
FROM:
DICK CHENEY
I need a status report on where we stand in terms of our filings
with the Federal Election Commission to resolve once and for all
the questions about who pays for what.
Are we going to seek final authoritative ruling?
Have we resolved the question of how we handle the staff travelling
on the press plane?
Are we justified in having the RNC pay for trips when the President
goes out and does a fund raiser' ?
Have you made provisions with Callaway so that he has some idea
of the budget costs involved, if he has to pick up part of the tab.
now paid for by the RNC ?
What about gifts, such as cuff links, etc. paid for by the RNC?
THE WHITE HOUSE
WASHINGTON
Date 10/4
TO: Phil Buchen
FROM:
Barry Roth
FEC questions on alloca tion
of candidabe expenditures public
comments will be used to
nelp develop regula tionswhich
would have to be approved by
the Congress.
PROPOSED RULES
45297
FEDERAL ELECTION COMMISSION
principles and policy guidelines for the
g. Of expenditures made jointly by or
allocation of contributions and expendi-
on behalf of both State or local and Fed-
11 CFR Part 107]
tures by, between and among candidates
eral candidates?
and committees. For example:
h. Of contributions and expenditures
[Notice 1975-56]
1. Should the Commission seek to pro-
between primary and general elections?
ALLOCATION OF CAMPAIGN EXPENDI-
mulgate rules that permit reasonable es-
1. Of expenditures made in two or more
TURES AND CONTRIBUTIONS; IMPLE-
timated allocations to be determined by
States?
MENTATION OF FEDERAL ELECTION
candidates and committees themselves,
2. Allocation among two or more can-
CAMPAIGN ACT
recognizing that this may risk inequities
didates:
Advance Notice of Proposed Rulemaking
and difficulties in enforcement; or should
a. Of travel expenses for candidates
The Federal Election Commission
the rules be specific, thereby giving can-
campaigning on behalf of other candi-
(FEC) was established by the Federal
didates and committees greater guid-
dates: Should such costs be-charged to
Election Campaign Act Amendments of
ance?
the appropriate limits of candidates, a
1974 (Pub. L. 93-443, 2 U.S.C. 431 et seq.).
2. Should the rules establish a single
portion to each candidate, or to neither
The FEC is responsible for the adminis-
strict formula (such as an allocation of
candidate?
tration of, for obtaining compliance with,
contributions and/or expenditures equal-
b. Of expenditures made jointly by two
and for formulating policy with respect
ly among candidates benefitted) or
or more Federal candidates on their own
should a more detailed and specific for-
behalf?
to the Federal Election Campaign Act
mula or formulas be established by the
3. Allocation between party-related or-
of 1971, as amended (the Act), and sec-
tions 608, 610, 611, 613, 614, 615, 616, and
Commission? This involves the same
ganizations and candidate:
617 of Title 18, United States Code (the
question of possible inequities and en-
a. Of National Party expenditures for
Act and these sections are collectively
forcement difficulties vs. more complex
headquarters, benefitting Presidential
referred to herein as the "Statutory Pro-
rules as in #1 above.
candidate, and other Federal, state, and
3. Should enforcement of allocation
local candidates?
visions".) Pursuant to these responsibil-
ities, the FEC is preparing regulations
rules and/or formulas rely on self-polic-
b. OF empenditures for particant
to implement certain of the Statutory
ing or on Commission enforcement and
tration and getwout
Provisions; the FEC proposes to make
compliance actions?
which benefit, directly or indirectly,
4. Should party and non-party polit-
candidates for Federal office?
rules with respect to some or all of the
ical committees be treated the same or
c. Of expenses for mass mailings,
allocation situations set forth herein
below. Such regulations will be designed
differently?
phone banks and other similar activities
to insure that all persons and organiza-
EXAMPLES OF ALLOCATION QUESTIONS
by multi-candidate and political party
committees on behalf of two or more
tions subject to the Statutory Provisions
C. The Commission invites public com-
Federal candidates?
are equally treated, and that the public
ment on the following questions as
d. Of goods and services provided by
interest requiring a clear development of
illustrative of those to which general
the Senate Recording Studio, House Re-
constitutional safeguards is served. In
principles and specific regulations would
cording Studio, Republican or. Demo-
addition, such regulations will: be de-
apply
cratic Senatorial Campaign Committee,
signed to be reasonable and practical, so
Allocation of activities of a single
the Democratic National Congressional-
that they may be understood and effec-
Committee or National Republican Con-
tively used by the public and those who
a. Incumbent President: How should
gressional Committee to Members of
are subject to them
the political travel, appearance and
Congress or candidates for Federal of-
Any interested person or organization.
fund-raising expenses of an incumbent
fice?
is invited to submit written comments to
President be allocated or attributed? For
e. Of paid workers, headquarters and
the FEC. concerning any part of this
security reasons, Presidents use special
other goods and services provided by po-
notice. The facts, opinions, and recom-
transportation such as Air. Force One.
litical parties to all candidates on the
mendations presented in writing, in re-
For both safety and official government
Party ticket.
sponse to this notice will be considered
activities with those that are political or
f. Of day-to-day administrative and
in drafting regulations related to the
campaign-related in nature. To what ex-
general overhead expenses of political
Statutory Provisions
tent should activities be classified as po-
party committees?
Set forth below is a general description
litical expenditures and be attributable
4. Allocation by committees other than
of the subjects and issues concerning al-
location that the FEC believes require the
to expenditure limitations?
party committees among candidates:
b. Non-incumbent candidate for Pres-
a. Of consulting, polling, photographic
most immediate attention:
ident: Are all travel expenses by a non-
and recording services and other similar
GENERAL ALLOCATION SITUATIONS
incumbent candidate for President
services provided on a pooled basis by
A. The Commission seeks guidance and
chargeable to the candidate's expendi-
multi-candidate and political party com-
ture limitation?
mittees to two or more Federal candi-
comments on the allocation or attribu-
C. Expenses for incumbent Members
dates?
tion of contributions and expenditures
of Congress: Members of Congress are
b. Of fundraising expenses by multi-
made with the intent or effect of influ-
allowed a specified number of trips to
candidate committees made directly or
encing the campaign of one or more can-
their State or Districts at Government
indirectly, on behalf of identifiable can-
didates for federal office. Specifically, the
expense. Are all trips above this allot-
didates for Federal office?
Commission is concerned with the ap-
ment a "political expenditure"? Are such
5. By other "persons":
propriate allocation of contributions and
"official business" trips campaign ex-
a. of travel expenses of nationally
expenditures:
penditures if political appearances are
prominent figures who campaign on be
1. By a single candidate who engages
in campaign activity in the course of
made?
half. of candidates? Are such outlays
d. Travel expenses for non-incumbent
contributions "in kind"?
other business or personal activities;
candidates for Congress: How should
Comment Period. Comments should be
2. By one candidate campaigning on
such trips be treated?
mailed to Rulemaking Section, Office of
behalf of another, or among two or more
e. Expenses between private personal
candidates campaigning together;
General Counsel, Federal Election Com-
3. Between a political party committee
expenses and campaign expenditures?
mission, 1325 K Street, NW., Washing-
A candidate incurs both normal and ex-
and the candidate(s) it supports;
ton, D.C. 20463 by October 14, 1975. For
4. By a non-party political committee
traordinary travel and living expenses
further information call (202) 382-5162.
among the candidate(s) it supports;
while campaigning. To what extent are
5. By other "persons" on behalf of can-
such activities campaign expenditures?
SEPTEMBER 26, 1975.,
didate(s).
1. Of fundraising expenses for Presi-
NEIL STAEBLER,
dential candidates? Should fundraising
Vice Chairman, for the
CONSIDERATIONS IN ALLOCATION
expenses for Presidential candidates be
Federal Election Commission.
B. The Commission solicits public
allocated on a state-by-state basis?
[FR Doc.75-26295 Filed 9-30-75;8:45 am]
comment on the development of basic
FEDERAL REGISTER, VOL. 40, NO. 191-WEDNESDAY, OCTOBER 1, 1975
Q: The Democratic Senatorial Campaign Committee has today
filed a letter with the Federal Election Commission (FEC)
complaining that expenditures by the Republican National
Committe (RNC) for your recent travels are in violation
of the Federal Election Campaign Act. Do you intend to
continue violating the Act?
A: I strongly believe that a President should undertake
activities in support of his party.
I have done so as President, as well as Vice President,
and Minority Leader, and these activities are not for
furthering my candidacy. I certainly hope to be able
to continue this work for my party.
As I have stated before, I can assure you that my
campaign will comply fully with the Federal Election
laws.
BACKGROUND POINTS
[ (1) The RNC is seriously considering challenging in
Court an adverse FEC ruling on this issue. For this
reason they would like you to say that you will comply
with the law rather than an FEC decision. (2) The
Campaign Committee complaint calls for the reimbursement
by the PFC of expenditures by the RNC for your travel.]
PWB 10/9/75
Q: The Democratic Senatorial Campaign Committee has today
filed a letter with the Federal Election Commission (FEC)
complaining that expenditures by the Republican National
Committe (RNC) for your recent travels are in violation
of the Federal Election Campaign Act. Do you intend to
continue violating the Act?
A: I strongly believe that a President should undertake
activities in support of his party.
I have done so as President, as well as Vice President,
and Minority Leader, and these activities are not for
furthering my candidacy. I certainly hope to be able
to continue this work for my party.
As I have stated before, I can assure you that my
campaign will comply fully with the Federal Election
laws.
BACKGROUND POINTS
[ (1) The RNC is seriously considering challenging in
Court an adverse FEC ruling on this issue. For this
reason they would like you to say that you will comply
with the law rather than an FEC decision. (2) The
Campaign Committee complaint calls for the reimbursement
by the PFC of expenditures by the RNC for your travel.]
PWB 10/9/75
THE WHITE HOUSE
FEC
WASHINGTON
October 10, 1975
MEMORANDUM FOR:
DICK CHENEY
FROM:
PHIL BUCHEN P.W.B.
SUBJECT:
Democratic Senatorial
Campaign Committee
Letter to the FEC
Attached for your information is the letter from the Democratic
Senatorial Campaign Committee which accuses the RNC of violating
the Federal Election Campaign Act by its expenditures on support
of the President as head of the party. It also proposes that the PFC
be required to reimburse the RNC for such expenditures retroactive
to either July 8 when the President announced his candidacy, August 21
when the FEC issued the "Bentsen" ruling that appearances by
announced candidates before large groups were presumed to be
campaign related, or September 4 when the FEC responded to
Wyman.
While it is not possible to predict the FEC decision on this question,
the FEC has previously taken the position that their rulings should
be prospective rather than retroactive when the law is unclear and
the question relates to a traditional campaign practice.
We are working with Bob Visser at the PFC and Benton Becker for
the RNC on comments on Mary Louise Smith's letter, and which will
also reflect some of the arguments made by the Democrat's complaint.
The DNC is expected to file additional comments next week in
opposition to the RNC practice.
TORG LIBRARY
THE WHITE HOUSE
WASHINGTON
October 10, 1975
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
BARRY ROTH
wfn
SUBJECT:
Democratic Senatorial
Campaign Committee
Letter to the FEC
Attached is a copy of the Democratic Senatorial Campaign Committee's
letter opposing RNC support for the President's party activities. I
have attached a memorandum for you to send to Dick Cheney on this
subject.
Although I have only given this a quick look at this point, their arguments
aren't necessarily compelling. For example, with respect to the
possibility of using union funds for Federal elections in circumvention
of 18 U.S.C. 610, Benton may wish to offer to voluntarily segregate
RNC accounts so such funds are used for this purpose. The FEC has
already given some indication they may require this anyway. Of
course, our position remains that the expenditures are not made
for the purpose of furthering his candidacy and are outside the scope
of the FECA. Benton will be at work on Monday and I will work up
draft comments to support the RNC letter. The PFC is also pre-
paring comments. Jack Murphy has given us an extension of time
to comment until October 17.
FORD & LIBRARY
DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE
ROOM 130 RUSSELL SENATE OFFICE BUILDING
WASHINGTON. D. C. 20510
SENATORS:
ROBERT THOMSON
TELEPHONE (202) 224-2447
GENERAL COUNSEL
J. BENNETT JOHNSTON. JR., LA., CHM.
MIKE MANSFIELD. MONT.. EX OFFICIO
FRANK N. HOFFMANN
ROBERT C. BYRD. W. VA., EX OFFICIO
EXECUTIVE DIRECTOR
LLOYD BENTSEN, TEX., EX OFFICIO
SECRETARY-TREASURE
EDMUNO 5. MUSKIE. ME., EX OFFICIO
JAMES ABOUREZK, S. DAX.
JOSEPH R. BIDEN, JR. DEL
DALE BUMPERS. ARK.
ALAN CRANSTON. CALIF.
THOMAS F. EACLETON. NO.
JOHN GLENN. OHIO
GARY HART, COLO.
ERNEST F. HOLLINGS. 5. C.
WALTER D. HUDDLESTON. KY.
DANIEL K. INQUYE. HAWAII
WALTER F. MONDALE. MINN.
SAM NUNN, GA.
October 7, 1975
JENNINGS RANDOLPH. W. VA.
JOHN SPARKMAN, ALL
The Honorable Thomas B. Curtis
FORD
Chairman
Federal Election Commission
STATE
LIBRARY
1325 K Street, N.W.
Washington, D.C. 20463
Dear Chairman Curtis:
On September 16, the Federal Election Commission
received a letter from Mrs. Mary Louise Smith, Chairman
of the Republican National Committee, informing the Com-
mission of R.N.C. intentions to continue paying Presidential
travel expenses without regard to the $5,000 contribution
limits in Section 608 (b) (2) of Title 18, U.S. Code. On at
least three occasions, the Commission has publicly indica-
ted expenditures of this nature are subject to the contri-
bution and expenditure limits in the 1974 Amendments to
the Federal Election Campaign Act. Since R.N.C. payments
to date have substantially exceeded $5,000, I firmly believe
the Republican National Committee and the Ford campaign com-
mittee are already in violation of the Act. Therefore, the
Commission should immediately require the Ford committee to
repay those travel expense payments that have exceeded $5,000
and prohibit any further payments in excess of that amount.
If the Commission allows these violations to con-
tinue, incumbent Federal officeholders will have a decisive
advantage over non-incumbent challengers in nearly every pri-
mary election. Moreover, such action would be in direct con-
flict with Commission interpretations restricting the activi-
ties of Democratic Presidential primary candidates before
large groups, and limiting virtually all private funds re-
ceived by members of Congress to support their activities as
Federal officeholders.
Hon. Thomas B. Curtis
October 7, 1975
Page 2
SERIO
TOTAL
LIBRARY
As you know, Congress amended the campaign laws in
1974 by imposing a $5,000 limit on political committee con-
tributions to Federal candidates. Committees may also in-
dependently spend $1,000 on behalf of a clearly identified
candidate. However, in general elections, party committees
have a higher limit equal to two cents times the voting age
population of the electorate.
By allowing the higher party committee limits for
general elections only, Congress recognized a basic political
fact that the R.N.C. C. would have the Commission ignore. With
few exceptions, incumbent officeholders control the political
parties. Therefore, only incumbents could effectively bene-
fit from a provision allowing parties to spend greater amounts
on behalf of candidates in their primary elections as well as
in general elections.
Similarly, if the Commission allows certain primary
candidates to receive unlimited travel expense from their
parties while campaigning as "party leaders", only incumbents
will benefit in the vast majority of cases. Obviously, the
party will rarely sponsor speaking tours by those who are
trying to unseat the party's incumbent officeholders in the
primary. The ncn-incumbent challengers will be forced to pay
for political travel with their own campaign funds when seek-
ing their party's nomination, and such expenses will be
charged against their spending limits.
Incumbents have advantage enough in party primaries.
It is not necessary for the Commission to sanction additional
exceptions from the spending limits for their particular ad-
vantage.
If the Commission were to sanction such loophole
spending, both the letter and the spirit of the Title 18 con-
tribution restrictions would be violated. The law allows in-
dividuals to contribute up to $25,000 per year to party com-
mittees. Political committees maintained by special interests
can contribute an unlimited amount to party committees. The
R.N.C. suggests that party committees, in turn, can spend an
unlimited amount paying travel expenses of primary candidates
if such candidates happen to be "party leaders." Obviously,
such an interpretation, if adopted by the Commission, would
make a sham out of the contribution limits and allow the
special interests to pour unlimited amounts into the primary
campaigns of the President and other incumbent officeholders.
Hon. Thomas B. Curtis
October 7, 1975
Page 3
Even more serious than that, such a rule WC Ald
once again open the door for corporate and union spending
in campaigns for Federal office. The R.N.C. proposal would
allow state party committees to pay from their general trea-
suries the travel expenses of those primary candidates who
are on "party business" without application of the Federal
campaign laws. Since over half the states allow party busi-
ness to be financed by labor organization and corporate con-
tributions, such a device could obviously be a means for
avoiding Section 610 of the Criminal Code which prohibits
corporate and labor union contributions to Federal campaigns.
Aside from these practical considerations, the Com-
mission on several occasions has issued rulings or regulations
contrary to the position currently advocated by the Republican
National Committee.
In response to Advisory Opinion Request 1975-13,
the Commission ruled on August 21 that "once an individual
has become a candidate for the Presidency, all speeches made
before substantial numbers of people are presumably for the
purpose of enhancing his candidacy." The ruling was applied
when a Democratic Presidential candidate spoke before a New
York Chamber of Commerce, even though such an appearance would
only remotely affect the Presidential primaries or the process
of selecting delegates to the national party convention. Yet,
the R.N.C. has asked the Commission to exempt Gerald Ford's
travels and speeches before "substantial numbers of people",
many of whom are the very same Republicans he must influence
to win the party's nomination for President next year. Such
a position would be entirely inconsistent with the ruling of
August 21.
Mrs. Smith has contended these party activities are
all part of President Ford's job of being President. She
notes, "partisan political activity is a recognized and Fed-
erally codified facet of an incumbent President's ordinary
business." Even if that were so, the Commission has issued
a proposed regulation applying the limitations in the Federal
Election Campaign Act, when private money beyond that appro-
priated by Congress. is used to pay for ordinary business of a
member of the House or Senate.
Under the proposed regulation, if a Senator pays the
salary of a caseworker out of his own pocket, that is a cam-
paign expenditure subject to the limits - even if the payment
is made two years prior to the Senator's next election. How-
FORD
STATE
will
Hon. Thomas B. Curtis
October 7, 1975
Page 4
ever, the R.N.C. is suggesting that all during the Presi-
dential primary period, an incumbent President can receive
political funds from a political committee for travel too
political for Treasury disbursement with no application of
the Federal campaign laws whatsoever.
The two positions cannot be evenhandedly reconciled.
Clearly, the law was drafted to apply equally to Congress and
the Chief Executive alike. Congress did not anticipate that
special exceptions would be carved out to aid any incumbent
President.
The only difficult question presented by the R.N.C.
letter is the retroactive effect of a Commission determination
that R.N.C. travel expense payments are contributions subject
to the contribution limits. Certainly, a good case can be
made that such a ruling should be retroactive to July 8, 1975,
the day of President Ford's announcement. However, the Com-
mission has, in the past, made allowances where it has not
resolved a question by way of public notice. Therefore, out
of fairness the ruling should be retroactive only to August 21,
when the FEC issued AO 1975-13 indicating that appearances by
announced candidates before large groups would be presumed
campaign-related.
Under no circumstances, should the ruling be retro-
active to a date later than September 4. On that date, the
Commission responded to a question concerning the President's
travels to New Hampshire before the special general election.
In that opinion, the FEC approved the following language con-
tained in a letter sent by its General Counsel to the Wyman
campaign and the Republican National Committee:
"The ability of the various party committees
to assume various appropriate expenses, as
outlined in this opinion of counsel, is
therefore limited to the New Hampshire
Senate elections. The ability of party
committees to assume the campaign expenses
is
FORD
of candidates other than in special general
or general elections is limited by the pro-
visions of 18 U.S.C. $608 (b) (1) and (2)
(the sections limiting contributions to
$1,000 and $5,000) as appropriate."
This language constitutes clear and unambiguous
notice to the R.N.C. that expense payments for Presidential
travel are subject to the $5,000 contribution limits, except
in relation to a general election.
Hon. Thomas B. Curtis
October 7, 1975
Page 5
Whatever the date for retroactivity, the Commission
should require the President's campaign committee to repay
the Republican National Committee for funds contributed in
excess of the $5,000 limit since that date. Moreover, the
Commission should prohibit further payments in excess of the
$5,000 limit.
Since the R.N.C. expense payments are increasing
each week as the President continues his campaign travels, it
would be to everyone's advantage if this matter were resolved
as soon as possible. Therefore, I hope you will give it your
immediate attention. Thank you again for the opportunity to
comment on this important question.
RPrt
ROBERT N. THOMSON
Counsel
RNT:jc
FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
Copies
October 16, 1975
hand
carried
MEMORANDUM FOR: DON RUMSFELD
BOB HARTMANN
DICK CHENEY
JIM CONNOR
RON NESSEN
FROM:
PHIL BUCHEN T.W.B.
SUBJECT:
PFC Comments on
RNC Expenditures
Attached is a draft letter from the PFC commenting on RNC
expenditures in support of the President as head of the party.
I would appreciate any comments you might have by C.O.B.
today in order that this letter can meet tomorrow's filing
deadline.
Thank you.
R. FORD LIBRARY
DRAFT - 3
RPV - 10/16/75
Office of General Counsel,
Advisory Opinion Section
The Federal Election Commission
1325 K Street, N. W.
Washington, D. C. 20463
Re: AOR 1975-72
Gentlemen:
The President Ford Committee hereby submits the following
comments in support of the position taken by the Chairman of
the Republican National Committee, Mary Louise Smith, in her
September 15 letter regarding the historical role of the Presi-
dent of the United States in his capacity as head of his
national party. It is our understanding that the Democratic
Senatorial Campaign Committee ("DSCC") has submitted comments
alleging violation of certain provisions of the Federal Election
Campaign Act of 1971, as amended, (the "Act") by both the
Republican National Committee ("RNC") and The President Ford
Committee ("PFC"). In particular, both the RNC and the princi-
pal campaign committee for the President were recklessly charged
by the DSCC with a knowing criminal violation of Section 608(b) (2)
of Title 18, United States Code, regarding the payment by the
RNC of Presidential travel expenses solely involving Republican
Party political activities. Such assertions are without merit
and lack any substantive legal or factual basis.
- 2 -
It is our position, as demonstrated below, that such
payments by the President's national party are both proper
and lawful. Moreover, such payments recognize the three
traditional and important functions of any incumbent President.
He is President, the leader of his national party and possibly
a Presidential candidate.
First, it is clear that the limitation set forth in
Section 608 (b) (2) regarding contributions by a political
committee to a federal candidate relate solely to payments:
"
made for the purpose of influencing
the nomination for election, or election,
of any person to Federal office or for the
purpose of influencing the results of a
primary held for the selection of delegates
to a national nominating convention of a
political party or for the expression of a
preference for the nomination of persons
for election to the office of President
of the United States;
"
18 U.S.C. §591 (e) (1) (Emphasis Added)
Similarly, the definition of "expenditure" in Title 18 excludes
any payment from being charged against the candidate's primary
expenditure limitation of Ten Million Dollars ($10,000,000)
unless it is in furtherance of one of the above cited purposes.
Moreover, the definition of expenditure also explicitly
excludes "any communication by any person which is not made
for the purpose of influencing the nomination for election,
or election, of any person to Federal office". 18 U.S.C.
§591 (f) (4) (F) As set forth in greater detail in Mrs.
Smith's letter, the RNC has not and will not assume the
STATE FORD LIBRA
- 3 -
expenses of Presidential travel in connection with either
the candidacy of the President himself or with the candidacy
of any other individual. In the latter circumstances, of
course, the appropriate contribution and expenditure provisions
of the Act would apply on an allocable basis.
Second, the strength of the RNC position is underscored
by the legislative history of the Act itself. One of the
important goals of the legislative reform sought by the
1974 amendments was to strengthen the national, state and
local party structures and their impact upon the political
process while, at the same time, stemming the unchecked
flow of undisclosed private funds from being covertly
channeled into a federal candidate's coffers.
In the Senate Report on the 1974 Amendments, it was
stated in a paragraph entitled "Strengthening Political
Parties" that the Senate Committee "agrees that a vigorous
party system is vital to American politics and has given
this matter careful study." The Committee stated that
"the parties will play an increased role in building strong
coalitions of voters and in keeping candidates responsible
to the electorate through the party reorganization". Finally,
they noted
.
FORD
STATES
LIBRARY
- 4 -
"[P]arties [such as the RNC] will continue to
perform crucial functions in the election apart
from fundraising, such as registration and voter
turnout campaigns, providing speakers, organizing
volunteer workers and publicizing issues. Indeed,
the combination of substantial public financing
with limits on private gifts to candidates will
release large sums presently committed to individual
campaigns and make them available for donation to
the parties, themselves. As a result, our financially
hard-pressed parties will have increased resources
not only to conduct party-wide election efforts,
but also to sustain important party operations in
between elections.
Senate Report 93-689 at 7-8 (Emphasis Added)
The traditional and one of the most effective methods by
which a national party obtains funds to support such activities
and strengthen its political base is by inviting interested
persons to fundraising events at which party leaders, and in
particular, an incumbent President, speak on issues of concern
to the Party. To date, it is my understanding that such
activities on behalf of the RNC by President Ford have raised
over $2,250,000 for his Party. The pragmatic effect of any
blanket rule denying the RNC the party services of its chief
spokesman would be to dramatically undercut and weaken that
which the Act sought to promote and strengthen.
Thus, the RNC should be permitted to pay for expenses
incurred by the President and his aides for party promotional
activity since such activities are undertaken at the singular
request of the RNC for its own purposes and benefit. In
fact, the PFC has not been involved in any efforts to initiate
- 5 -
and/or coordinate any of the President's recent trips on
behalf of the RNC. Such invitations and acceptances are
independent judgmental determinations made by the RNC
and White House in connection with party matters and for
party purposes. Moreover, such activities are totally
unrelated to the PFC campaign efforts which are directed
towards the raising of money and the scheduling of activities
for the purpose of influencing the nomination of the
President for a full term.
Third, the test for determining whether or not a contri-
bution or expense is a campaign expense related to a federal
candidate's election and therefore chargeable to the aggregate
limitations set forth in the Act, is one of intent and purpose.
Although, as Mrs. Smith noted with regard to the differing roles
of the President, such distinctions are sometimes subtle,
they are nonetheless real and subject to dispassionate analysis.
No inflexible rule should be issued by the Commission which
would obviate and eliminate partisan but non-candidate related
activities. Instead, it is our considered opinion that a
- 6 -
clear distinction exists between the activities of a President
in his official capacity, the activities of a President in his
party leader capacity and, finally, the activities of a
President as a candidate for nomination. Further, reason
dictates that any such determination by the Commission
in this regard must be made on a case by case basis.
It was recognized in the Opinion of Counsel issued
to the campaign manager of the Wyman-for-Senator Committee,
that the fact that there will always be the possibility
or even likelihood of "some carryover effect" or other
incidental benefit to the President in connection with his
appearance in New Hampshire on behalf of that candidate is
immaterial when the timing of such a visit would have no significan
demonstrable or measurable effect on the 1976 Presidential
election, nominating convention or New Hampshire primary
election. Although that opinion was restricted to a particular
set of circumstances and was not deemed necessarily applicable
to other campaign activity engaged in by a Presidential
candidate, the logical conclusion is that a similar approach
and analysis must be taken toward non-campaign activity by
a federal candidate. In fact, there are no applicable
contribution or expenditure limitations for ongoing party
business and activities which are not for the purpose of
influencing the election of a federal candidate.
The distinction between official acts by a federal
office holder and candidate related activities is reflected
- 7 -
in both the legislative history of the Act (see, e.g. H.R.
93-1279 at 150) and in the initial Task Force draft regarding
Allocation of Expenditures. Moreover, an equally real and
viable distinction exists between candidate related activities
and party related activities, particularly during the primary
period prior to the nomination at the national parties'
annual conventions.
Fourth, in order to determine whether or not partisan
political activity is directed toward party activity or an
individual's own candidacy, we would respectfully suggest
that the following approach be considered in connection with
the Commission's Advisory Opinion in this matter and as a
basis for any proposed regulation in this area. The cost of
promotional or other partisan activities on behalf of a
national, state or local party by a candidate for federal
office, whether or not a holder of public office, shall not
be attributable as a campaign expenditure by such candidate
if the activity is (1) at the sole invitation of such party,
(2) for a recognized and legitimate purpose on behalf of
the party and not for the purpose of directly raising funds
for such candidate or for the purpose of influencing his
election, provided that, notwithstanding the above, the costs
of any such activities by a candidate who has registered and
qualified as a candidate or been placed on the ballot in the
- 8 -
state in which such activity is held, shall be deemed an
expenditure from the date of registration or placement
on the ballot, in any event, at any time such activities
are undertaken in that state within forty-five (45) days
prior to the date of the respective state presidential
primary.
This approach recognizes the importance and value
of party promotional activity by federal candidates, while
at the same time providing a pragmatic time frame within
which any such activity would be deemed candidate related.
In addition, of course, any alleged party activity which
is demonstrated to be for the purpose of influencing the
candidate's own election would be appropriately allocated
and charged against the Act's contribution and expenditure
limitations. This is in accordance with the approach
recently discussed by the Commission regarding "unearmarked"
contributions to the national committee of such a candidate.
Accordingly, in the foregoing discussion we have
established that payment by the RNC of expenditures incurred
by the President and his aides, when solely engaged in national,
state or local political party promotional activities, are
not subject to the Acts contribution and spending limits.
Hence, the FEC should confirm in its Advisory Opinion that
R. FOR:
it is legally permissible for the RNC to continue to make
such expenditures. Moreover, in any event, the Commission
should also rule that the effect of an Advisory Opinion
in this matter must be prospective only
- 9 -
In the first place, the statutory language of Section
437 (f) of Title 2, United States Code, which authorizes the
FEC to render Advisory Opinions clearly reflects the fact
that such Advisory Opinions look only to future acts, and
not past acts. Section 437 (f) states, in pertinent part, that:
"(a) Upon written request to the
Commission
the Commission shall render
an advisory opinion, in writing, within a
reasonable time with respect to whether any
specific transaction or activity
would
constitute a violation
"
(Empahsis Added)
The words "would constitute" do not encompass acts
that occurredin the past. As the Comptroller General
has frequently ruled that the question of retroactivity is
strictly a function of the interpretation of the relevant
statute in question, the conclusion that all Advisory Opinions
must be solely prospective in application is compelling (See, e.g.
49 Comp. Gen. 505 (1970), 48 Comp. Gen. 477 (1969), 48
Comp. Gen. 15 (1968) and 47 Comp. Gen. 386 (1968))
Moreover, even if, arguendo, Advisory Opinions are
not limited to matters of prospective application only in
all matters subject to such rulings, the Commission still
has full discretion to limit its opinions to matters in the
future in appropriate cases. The United States Supreme
Court, in Chenery V. SEC, 332 U.S. 194 (1947), held that
an agency of the federal government may, in its discretion,
- 10 -
give a ruling prospective effect only. The Court stated
that the agency, in exercising this discretion, should
follow a balancing test, which involves weighing "the
mischief of producing the result which is contrary to a
statutory design or to legal and equitable principles"
against "the ill effect of the retroactive application of
a new standard
"
(332 U.S. at 203)
The foregoing test is similar to the criteria followed
by the United States Supreme Court on the question of whether
a particular judicial holding should be given retroactive
application. Recently the Court stated that the following
matters should be considered in this regard:
(a) The purpose to be served by the
new standards, (b) the extent of the reliance
by law enforcement authorities on the old
standards, and (c) the effect on the adminis-
tration of justice of a retroactive applica-
tion of the new standards" Gosa V. Mayden,
413 U.S. 655, 679 (1973), quoting, 388 U.S.
at 297.
At issue before the Commission is the appropri-
ateness of the application of the Act's contribution and
expenditure limitations set forth in 18 U.S.C. 608 to a
Presidential candidate's travel for party purposes. Title
18, of course, is a criminal statute and
is
FORD
GENATE
LIBRARY
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provides for extensive criminal penalties including imprison-
ment and fines. As with all criminal statutes, a principal
feature of that section is that a violation cannot occur
unless it is a "knowing violation". In this respect, sub-
section (h) of Section 608 states as follows:
"(h) No candidate or political committee
shall knowingly accept any contribution or
make any expenditure in violation of the
provisions of this section. No officer or
employee of a political committee shall
knowingly accept a contribution made for the
the benefit or use of a candidate, or knowingly
made any expenditure on behalf of a candidate,
in violation of any limitation imposed on contri-
butions and expenditures under this section."
(Emphasis Added)
Any person found violating any perovision of this
section shall be fined not more than $25,000 or imprisoned
not more than 1 year, or both (18 U.S.C. §608 (i)).
The enforcement powers of the Commission set forth in
24 U.S.C. $437g
also make it clear that the Commission
may not order repayment of any such past payments in any
event for a violation of Section 608. Appropriate apparent
violations of Section 608 are to be referred to the appropriate
law enforcement authorities. In the present instance any such
referral would be ludicrous. Accordingly, the Commission
would be committing an abuse of discretion if it should attempt
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to retroactively apply any new standard against The President
Ford Committee or the RNC in this instance.
The President Ford Committee and the RNC have at all
times acted in good faith in accordance with their understanding
of the law. The RNC expenditures in question have been filed
quarterly with the FEC, the Clerk of the House of Representa-
tives and the Secretary of the United States Senate and it would
be unfair and an unconstitutional denial of due process to
apply any new standard before such time as the PFC or
RNC might be said to have been on notice that their position
was not in accordance with the FEC's view of the law. Thus,
it is impossible to conclude that such committees were ever
on such notice as would support a conclusion that there had
been a "knowing violation" of the law. Indeed, the Commission
has still not in any way ruled upon the question now before
it and any Advisory Opinion must be applied prospectively
only in this matter.
Finally, I would like to review certain additional
pragmatic considerations for the Commission's consideration.
Allegations that the recognition of the role of political
parties in the maintenance and development of a viable
political structure in the United States would work an unfair
burden upon non-incumbents and allow unlimited corporate and
labor organization spending for federal candidates through
the general treasuries of state party committees are both
misleading and fallacious. As a general policy matter,
as well as pragmatic political practice, the 1974 Amendments
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were not intended (nor should they have been) to provide a
perfect cosmic balance on which both incumbents and non-
incumbents must be evenly weighed in either. Again, as
noted in Mrs. Smith's letter, the question presented
does not revolve solely upon the President's role as
party leader but involves any incumbent federal office-
holder. The fact that such party leaders are generally
incumbent officeholders is merely a reflection of the
public's real life interest in recognized elected leaders
and public figures. Non-incumbents always perforce are
faced with the traditional obstacle and challenge of name
recognition and acceptance. The plain
fact that many incumbents have lost to earnest new challengers
even prior to the federal election campaign laws establishes
that the advantages of incumbency are not all compelling.
Further, the burdens of incumbency, including the obligation
to speak and act responsibly toward his constituency and to
represent their best interests in the harsh world of decision
as opposed to the speculation and mere promise of the non-
incumbent, are all too quickly and easily forgotten by those
who would seek to mystically equalize the political system
to their own advantage.
Similarly, the alrm sounded regarding corporate and
labor organization spending is false and a sham. The Commission
has already indicated that state parties will have to maintain
separate, segregated funds regarding any support for federal
candidates, which funds must exclude monies from corporations
and unions that
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may be accepted by them under State law for state and local
candidates and activities. Full disclosure and exacting
reporting requirements of such funds will avoid any such anti-
cipated and feigned abuse. In addition, as in all of these
matters, the watchful eye of the press as well as opposing
candidates will expose and question any deceitful artifice
or device. Accordingly, only legitimate state party business
activities would be financed from the general treasuries
of such state parties. Section 610 of Title 18, United States
Code, would properly have no application to such legitimate state
activities.
1
Reliance upon Advisory Opinion Request 1975-13 and
the proposed House Account regulation is again misplaced.
That Advisory Opinion solely decided that the payment of a
Presidential Candidate's travel expenses from corporate funds
was illegal. It in no way addressed the question whether
the President may engage in political activities unrelated
to his candidacy. The distinction in the House account
proposal is self-apparent. In that situation, money is being
contributed directly to the candidate to support activities
that can have no substantive purpose other than to assist
the candidate in influencing his constituency and, of greater
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importance, such contributions certainly do not serve to
advance a stated major purpose of the Act - the strengthening
of political parties. Moreover, in its second proposed
version of the House Account regulation it was again
recognized by the Commission that, even with regard to
such direct contributions to Congressmen, the application
of the Act's limitations would apply only to a foreshortened
period prior to an announced candidate's election.
In conclusion, we appreciate the opportunity afforded
the PFC to comment on the above-referenced Advisory Opinion
Request and we trust that these comments may prove useful
in assisting the Commission in arriving at its determination
in this matter.
Sincerely,
Robert P. Visser
General Counsel