Campaign Spending Commission

     This Advisory Opinion responds to an elected official who asked whether the receipt of money from an “immediate family” member to pay the candidate’s personal expenses is a contribution under the Hawaii campaign spending law.

     The Campaign Spending Commission (“Commission”) responds in the affirmative, except where personal expenses are paid with “personal funds,”1 which includes “gifts of a personal nature that had been customarily received by the candidate from immediate family members prior to the beginning of the election cycle”.

     “Personal funds” are defined, generally, as:

• Amounts derived from assets which the candidate has the legal right of access to or control over and to which the candidate has legal title or an equitable interest;
• Income received during the current election cycle; and
• Assets jointly owned with the candidate’s spouse.

“Income” includes gifts of a personal nature that have been customarily received by the candidate prior to the beginning of the election cycle.

     We understand that the elected official may run for a different office.  He wants to leave one of his jobs in order to have more time for his campaign.  An “immediate family”2 member has offered to pay his personal expenses, such as mortgage, utilities, and insurance payments.3

     Initially, we note that personal expenses must not be paid with campaign funds.4  The Commission’s rules list expenses that are deemed personal expenses, including mortgage payments and utilities.  Where specific expenses are not listed as personal expenses, the “irrespective test” is used to differentiate permissible campaign expenses from prohibited personal expenses.5

     The Hawaii Revised Statutes, Hawaii Administrative Rules, and Commission Advisory Opinions do not discuss the payment of personal expenses by an immediate family member.  We turn, therefore, to the Federal Election Commission (FEC) for guidance.6

     The FEC’s rules specify that a third party who pays for “personal use” expenses is deemed to have made a contribution (notwithstanding the personal use prohibition), unless the payment would have been made “irrespective of the candidacy.”7  A payment is made irrespective of the candidacy if the payment is made from the candidate’s “personal funds.”

     The approach in the FEC’s current rules is consistent with an opinion interpreting an earlier version of the rules.  The FEC opined therein that contributions received by a candidate to repay a loan used to pay the candidate’s living expenses during a campaign and to consolidate personal debts incurred before the campaign were not personal funds because the contributions were not customarily received before candidacy.8  The FEC also listed factors from prior federal advisory opinions in which it concluded that funds received for living expense were contributions (and not personal funds):

• The receipt of funds for living expenses would free up other funds of the candidate for the campaign;
• The candidate would have more time to spend on the campaign instead of pursing employment; and
• The funds would not have been contributed but for the candidacy.

     The Commission, therefore, adopts the approach in the FEC’s current rules and concludes that the receipt of money from an immediate family member to pay a candidate’s personal expenses, such as mortgage, utilities and insurance, is a contribution.  If payment is made from “personal funds,” which includes gifts of a personal nature that been customarily received by the candidate prior to the beginning of the election cycle, however, the payment is not a contribution.

     A “contribution” includes any gift, deposit of money, or anything of value made by any person for the purpose of influencing an election for a Hawaii office.  The Commission interprets this term broadly.

     The Commission provides this Advisory Opinion as a means of stating its current interpretation of the Hawaii Campaign Spending laws provided under HRS section 11-191, et seq. and the administrative rules of the Commission provided in chapter 2-14, Hawaii Administrative Rules.  The Commission may adopt, revise, or revoke this Advisory Opinion upon the enactment of amendments to the Hawaii Revised Statutes or the adoption of administrative rules by the Commission.

Dated: Honolulu, Hawaii, January 11, 2006.

CAMPAIGN SPENDING COMMISSION

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Paul Kuramoto
Chairperson

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Steven E. Olbrich
Vice Chair

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Gino Gabrio
Commissioner

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Dean Robb
Commissioner

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Michael E. Weaver
Commissioner

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1 The Commission relies upon the definition of “personal funds” in 2 United States Code 431(26) and 11 Code of Federal Regulations (CFR) 100.33.

2 “Immediate family” means “a candidate’s spouse, and any child, parent, grandparent, brother, or sister of the candidate, and the spouses of such person.”  Section 11-191, Hawaii Revised Statutes (HRS).

3 These payments are not a “loan,” as defined in section 11-191, HRS.

4 Section 11-206(b), HRS.

5 “[A] ‘personal expense’ means any use of campaign contributions for an expense that would exist irrespective of a candidate’s campaign to seek the nomination or election to office or being elected to a political office.”  Section 2-14.1-15, Hawaii Administrative Rules (HAR).

6 The Commission has previously turned to the FEC for guidance in Advisory Opinion Nos. 05-01, 04-05, and 02-08.

7 11 Code of Federal Regulations (CFR) 113.1(g)(6).  See, also, 11 CFR 100.153.

8 FEC Advisory Opinion No. 1982-64.