Originating from the Honest Leadership and Open Government Act of 2007, the Federal Election Commission (FEC) promulgated new rules governing the carriage of Federal political candidates. The new rules are effective Jan. 6, 2010 and will apply to any individuals traveling in connection with an election for Federal office – including candidates, campaign members, security personnel, media members, authorized committees, and leadership of Political Action Committees for such candidates. This article will explore and summarize the new FEC rules and explain how the 2010 Rules alter the existing 2003 Rules.

Background

Effective Dec. 15, 2003, the FEC issued regulations allowing Federal candidates to travel on private aircraft during election campaigns. To avoid in-kind contributions for non-commercial air travel, the 2003 Rules provided uniform reimbursement guidelines. Accordingly, a Federal candidate could utilize noncommercial aircraft travel and avoid an in-kind contribution if the service provider was reimbursed in accordance with the 2003 Rules.

However, due to various indiscretions and the passage of the Honest Leadership and Open Government Act of 2007, the FEC recently promulgated new rules governing the private carriage of Federal candidates. The new rules restrict, and in some situations prohibit, Federal candidates and certain individuals traveling on behalf of such candidates from utilizing non-commercial air travel. Further, the new rules provide a new method for calculating the reimbursement rate for allowable non-commercial air travel.

It is important to note that the FEC rules only apply to candidates seeking Federal office, not already elected Federal officials. Generally, elected Federal officials are prohibited from using non-commercial aircraft. Therefore, service providers should limit providing air travel to only Federal campaign travelers, defined as individuals meeting the definition of a candidate and traveling in connection with an election for Federal office.

Limits on Non-Commercial Travel

The 2003 rules did not differentiate between types of Federal candidates, but instead allowed all Federal candidates to utilize non-commercial air travel provided the service provider was reimbursed according to certain guidelines. The 2010 rules, however, provide that House candidates and individuals traveling on behalf or in connection with House candidates are prohibited from expending campaign funds on non-commercial aircraft travel. Furthermore, due to limitations on in-kind contributions, the ban on using campaign funds practically prohibits non-commercial aircraft travel for House candidates. As noted below, the 2010 Rules do provide two exceptions that allow House candidates to fly on government or candidate owned aircraft. Unlike House candidates, Senate, Presidential, and Vice-Presidential candidates are permitted to use non-commercial air travel provided the service providers are reimbursed according to certain guidelines.

Reimbursement Rates

Under the 2003 Rules, Federal candidates were required to reimburse service providers for noncommercial air travel based upon the First-Class, Coach, or Charter Rate between the two destinations – depending on the availability of such rates. The 2010 Rules provide that the reimbursement rate for Non- House candidates is the candidate’s pro rate share of the normal and usual charter rate or rental charge for travel on a comparable aircraft of comparable size.  

A comparable aircraft is one of similar make and model as the aircraft that actually makes the trip, with similar amenities. A normal and usual charter rate or rental charge is typically obtained by asking charter companies for the hourly rate they would charge for a flight in a comparable aircraft, and then multiplying this hourly rate by the actual duration of the candidate’s flight. Further, the candidate’s pro rate share is the normal and usually charter rate divided by the total number of campaign travelers, then multiplied by the number of campaign travelers associated with such candidate.

For example, if Candidate A travels with Candidate B and Candidate B’s campaign manager on a non-commercial aircraft, then Candidate A is responsible for one-third and Candidate B is responsible for two-thirds of the normal and usual charter rate or rental charge on a comparable aircraft of comparable size. The 2010 Rules also provide that when determining the comparable size of the aircraft, the Federal candidate is not required to include government mandated security personnel and equipment. Further, the 2010 Rules also allow media and government personnel who accompany a candidate to reimburse the service provider directly, whereas the 2003 rules only allowed the media and government personnel to reimburse the Federal candidate, not the service provider.

Government and Candidate Owned Aircraft Exceptions

The 2010 Rules provide two exceptions to the standard reimbursement rate. The exceptions are noncommercial air travel on government and candidate owned aircraft (the exceptions apply to House candidates). Federal candidates that travel on non-commercial aircraft provided by Federal, State, or local governments must reimburse the governmental entity either at the normal and usual charter rate or rental charge, as specified above, or at the Private Traveler rate. The Private Traveler rate is a rate specified by the governmental entity for each campaign traveler.

The second exception is for travel on an aircraft owned by the Federal candidate or the candidate’s immediate family member. While travel on an aircraft owned by the Federal candidate relieves the candidate from restrictions and limitations on such expenditures, the candidate’s committee is still required to report the contributions. Thus, Federal candidates that travel on non-commercial aircraft owned by the candidate or candidate’s immediate family member must reimburse the service provider, the candidate or candidate’s family, the costs associated with the trip – which may include the cost of fuel, cost of the crew, and a proportionate share of maintenance costs. If not reimbursed at the cost associated with such trip, the candidate’s committee must report an in-kind contribution for the cost of the trip. Accordingly, even though Federal candidates may make unlimited contributions to their campaigns, those contributions must be reported.

Additionally, if the aircraft is owned or leased under a shared ownership agreement and the candidate’s use does not exceed her proportional ownership interest in such aircraft, the candidate must reimburse the service provider for the hourly mileage or other applicable rate charged by such an agreement. If the aircraft is owned or leased under a shared ownership agreement and the candidate exceeds her proportional ownership interest, then the candidate must reimburse the service provider at the normal and usual charter rate or rental charge, as specified above. Prior to each flight on an aircraft which the candidate owns a proportional ownership interest, the candidate’s committee must obtain a certification from the service provider that the candidate’s planned use of the aircraft will not exceed the candidate’s proportional share of use. Because House candidates are prohibited from expending campaign funds on non-commercial air travel, they are prohibited from exceeding their proportional use of the aircraft as allowed under the shared ownership agreement.

Further, the candidate owned aircraft exception also applies to aircraft owned by the candidate’s immediate family member or members. Immediate family members include the father, mother, son, daughter, brother, sister, husband, wife, father-in-law, or mother-in-law of the candidate. Aircraft owned by an entity that the candidate or candidate’s immediate family member owns an interest in are deemed to be owned by candidate or candidate’s immediate family member provided the entity is not a public corporation.

Recordkeeping Requirements

The 2010 Rules also require Federal candidates to maintain and report certain records pertaining to non-commercial air travel. Federal candidates are required to record and report the service provider and the size, model, make, and tail number of the aircraft used to travel. Further, the Federal candidates must maintain an itinerary – which shows the departure and arrival dates and a list of all passengers with designations. Also, the Federal candidates must provide a publicly available charter rate or rental charge for the comparable aircraft of comparable size with similar amenities that, also, identifies the airline, charter, or air taxi operator providing such rate or charge to the public. Further, the public rate must have been available to the public within seven days of the Federal candidate’s actual travel. If the candidate travels on an aircraft owned under an ownership or lease agreement, the candidate must report such agreement and the certification provided by the service provider stating the candidate’s use will not exceed their proportional ownership in such aircraft.

FAA Regulations, and State and Local Laws

In addition to the FEC Rules, candidates and service providers must satisfy the regulations of the Federal Aviation Administration (FAA) and any applicable state or local laws. The Federal Aviation Regulations (FARs) allow a service provider of non-commercial air travel to carry Federal candidates under FAR 91.321 so long as the service provider does not hold an air carrier certificate. Further, the FAA requires that the reimbursement does not exceed the rates required by the FEC regulations, which are discussed above. Unlike Federal candidates, state and local candidates are governed by state and local laws, not FEC regulations. For this reason, it is recommended to consult appropriate counsel before providing or accepting non-commercial air travel in connection with state and local elections.

Conclusion

The 2010 Rules were effective on Jan. 6, 2010. The 2010 Rules restrict, and at times prohibit, Federal candidates from traveling on non-commercial aircraft. Additionally, for allowable non-commercial air travel, the 2010 Rules provide new reimbursement guidelines which Federal candidates must follow to avoid in-kind contributions from service providers. This article serves as a general and broad overview of the 2010 Rules and should not be construed as legal advice or opinion. Every particular situation is different and one should consult appropriate counsel before providing or accepting non-commercial air travel in connection with Federal elections.