UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Plaintiff, ) 

 ) Civil Case No. 1:12-CV-00958 

v. ) 

 ) 

CRAIG FOR U.S. SENATE, et. al., ) 

 ) 

 Defendants. ) 

 _________________________________________) 

DEFENDANTS’ REPLY TO COMMISSION’S MEMORANDUM 

IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION 

 On June 11th, 2007, Senator Larry Craig traveled from his home state of Idaho to 

attend a session of the United States Congress in Washington, D.C. Senator Craig 

subsequently retained counsel to defend himself in a legal matter that arose during, and in 

connection with, that travel. Like other members of Congress who have previously used 

campaign funds to pay for similar expenses, Senator Craig’s legal matter did not itself 

strictly concern an official duty, but was nonetheless “in connection with his duties as a 

holder of Federal office”; in Senator Craig’s case, his obligation to attend a session of 

Congress. See 2 U.S.C. § 439a(a)(2); see FEC Advisory Opinions (“AOs”) 2006-35 

(Kolbe), 2005-11 (Cunningham), 2000-40 (McDermott), and 1997-27 (Boehner).1

 

Senator Craig’s expenditures are indistinguishable in all material aspects from the 

expenditures previously sanctioned by those four advisory opinions (most directly in 

Kolbe). Accordingly, the Defendants did not convert any funds to “personal use” and the 

 

1 The Court may locate these opinions, and related documents in the advisory 

opinion record, at: http://saos.nictusa.com/saos/searchao. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 1 of 25
Defendants’ Reply 

Page 2 

mere existence of those opinions provides a “safe harbor” which Defendants have relied 

upon in good faith. See 2 U.S.C. §§ 437f(c), 439a. 

 In contrast to Defendants’ cogent rationale, supported by over fifteen years of 

reasoned agency decision-making, Plaintiff Federal Election Commission (“FEC” or 

“Commission”) seeks to re-interpret the: (1) applicable statute and regulations, (2) 

controlling advisory opinions, and (3) proceedings before the Senate Ethics Committee – 

all while demanding deference to its post hoc rationalizations for changing settled law. 

 For three reasons, this Court should grant Defendants’ Motion to Dismiss [Dkt. # 

3] (“Defs.’ Mot’n”). First, the statute is clear and unambiguous. Section 439a(a)(2) does 

not mandate that the underlying legal matter itself represents an official duty, but, more 

expansively, requires that the matter arise “in connection with” official duties. (Emphasis 

added). Second, even if the statute were unclear, the Commission, in its advisory 

opinions, has consistently interpreted § 439a in accord with Defendants’ position. See 

AOs 2006-35, 2005-11, 2000-40, & 1997-27. Finally, even if the Court finds that the 

legal interpretation advanced in these advisory opinions is unreasonable, those opinions 

nonetheless bar Commission enforcement action and provide a safe haven upon which 

Defendants may rely. See 2 U.S.C. § 437f(c). 

II. AS A FEDERAL OFFICEHOLDER, SENATOR CRAIG WAS OBLIGATED 

TO TRAVEL TO WASHINGTON, D.C. FOR A SESSION OF CONGRESS 

 The Commission’s brief expansively addresses whether Senator Craig’s trip was 

constitutionally required, if he was immune from arrest, and whether Defendants’ 

constitutional nomenclature is correct. See FEC Memorandum in Opposition [Dkt. # 5] 

(“Mem. in Opp’n”) at 15-18. The Commission’s exegesis on these subjects obscures 

Defendants’ sole, unremarkable claim: that at the time of his arrest Senator Craig was 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 2 of 25
Defendants’ Reply 

Page 3 

engaged in official, Senate-sponsored travel.2 See Memorandum in Support of Motion to 

Dismiss [Dkt. # 3-1] (“Defs.’ Mem.”) at 4 & n.3 (citing Report of the Secretary of the 

Senate, S. Doc. No. 110-11 at B-826 (Nov. 13, 2007)); see also, S. Pub. 108-1 (2003) 

(“Senate Ethics Manual”) 119 (“The term ‘official travel’ refers to travel paid for with 

official Senate funds.”). 

As to the applicability of the “Qualifications Clause” and “Immunity from Arrest 

Clause” (or, as the FEC prefers, the immunity portion of the “Speech or Debate Clause”), 

their actual application to this matter is irrelevant. What pertains here is that a Senator’s 

interaction with law enforcement while traveling engenders constitutional implications 

“in connection with” his or her office. 

 The question presented here, then, is whether Senator Craig properly used his 

campaign funds “in connection with [his] duties as a holder of Federal office.” 2 U.S.C. 

§ 493a(a)(2). That he was engaged in official travel pursuant to his official duties at the 

time of the arrest is, simply put, beyond dispute.3

 

III. THE SENATE ETHICS PROCEEDING REINFORCES DEFENDANTS’ 

ASSERTION THAT THIS MATTER RELATES TO OFFICIAL DUTIES 

 

The Commission invests significant import in Senator Craig’s interaction with the 

Senate Ethics Committee without acknowledging the Committee’s conclusion that his 

conduct reflected on his office. According to the Commission, this counsel’s 2007 

statement to the Ethics Committee on Senator Craig’s behalf that his arrest implicated 

 

2 Defendants do not presume that the Commission is asserting that Senators should 

not expect recognition of the official nature of their travel to and from their home states. 

3 The Commission is not entitled to deference on the official duties of a member of 

Congress under § 439a(a)(2). See United States v. Mead Corp., 533 U.S. 218, 230 n.11 

(providing deference only when “plausible case” can be made that Congress delegated 

such authority) (quoting Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 

89 Geo. L.J. 833, 872 (2001)). That question is certainly left to Congress itself. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 3 of 25
Defendants’ Reply 

Page 4 

“purely personal conduct” is a fatal concession. Mem. in Opp’n. at 3-4, 11-12. 

As a threshold issue, Defendants stress that they do not claim that using a 

restroom while traveling is strictly “official” conduct. The Commission’s discussion of 

the Senate Ethics Committee proceeding, however, reinforces Defendants’ conclusion 

that Senator Craig’s arrest and subsequent litigation directly implicated his federal office. 

In this context, Senator Craig’s so-called confession to the Ethics Committee must 

be viewed for what it was: an assertion that the Committee lacked actual and practical 

jurisdiction to sanction his conduct.4

 Of course, in issuing the letter cited by the 

Commission, Mem. in Opp’n. at 4, the Ethics Committee nonetheless asserted 

jurisdiction. The simple fact that Senator Craig’s arrest and subsequent defense triggered 

proceedings with the Senate establishes Defendants’ argument that Senator Craig’s legal 

fees were “in connection” with his official duties. Indeed, by asserting jurisdiction the 

Committee determined that his conduct “reflect[ed] upon the United States Senate.” 

Letter from Sen. Barbara Boxer, Chair, S. Ethics Comm., et al., to Sen. Larry E. Craig at 

1 (Feb. 13, 2008) (“Ethics Letter”) available at 

http://www.ethics.senate.gov/public/index.cfm/files/serve?File_id=ed41d9ea-3e36-4d89-

9fac-8caba610d07a ).

Further, the Commission relies on the Ethics Committee’s ambiguous assertion 

that “some portions” of Senator Craig’s legal expenses “may not be deemed to have been 

 

4 “The Senate Select Committee on Ethics is authorized to receive and investigate 

allegations of improper conduct which may reflect upon the Senate, violations of law, 

violations of the Senate Code of Official Conduct and violations of rules and regulations 

of the Senate; recommend disciplinary action; recommend additional Senate rules or 

regulations to insure proper standards of conduct; and report violations of law to the 

proper federal and state authorities.” S. Res. 338, 88th Cong. (1964) (enacted), amending

Senate Standing Rule XXV.

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 4 of 25
Defendants’ Reply 

Page 5 

incurred in connection with you official duties.” Mem. in Opp’n at 4 (quoting Ethics 

Letter). However, the FEC elides the letter’s next sentence which expressly declines to 

“reach[] the issue of what portion of [Senator Craig’s] legal expenses in this matter may 

be payable with funds of your principal campaign committee.” Id. Of course, this 

question is the crux of the Commission’s complaint against Defendants. 

Finally, the Commission asserts that Senator Craig failed to comply with Senate 

Rule 38.2, requiring Ethics Committee approval for the use of campaign funds for legal 

expenses. Compl. ¶ 23 & Mem. in Opp’n at 3-4. This claim is not only irrelevant to an 

analysis under § 439a but also misapprehends Senate rules. The purported “requirement” 

is, in fact, not contained in Senate Rule 38.2. See Senate Ethics Manual 324. Rather it is 

precatory language included by the Manual’s drafters, unsupported by either Senate rule 

or precedent. See Senate Ethics Manual 116. It has no more force than other staffgenerated guidance and, certainly, would not trump federal law on this question. 

 In sum, the FEC cannot wrest a confession from Defendants out of the politicized 

and legally irrelevant Senate matter relating to Senator Craig. The Ethics Committee 

made no legal determination regarding the applicability of § 439a to this matter and its 

assertion of jurisdiction actually bolsters Defendants’ argument relating to the statute. 

IV. THE KOLBE ADVISORY OPINION EXPRESSLY PERMITS THE 

EXPENDITURES IN THIS MATTER AND PROVIDES DEFENDANTS 

WITH A “SAFE HARBOR” FROM SANCTION 

 As Defendants set forth in their opening brief, Defs.’ Mem. at 6-10, they are 

entitled to rely on – and to receive immunity from sanction based upon – a Commission 

advisory opinion that governs materially indistinguishable activity. See 2 U.S.C. § 

437f(c)(1)(B) & id. § 437f(c)(2) (“[Persons] act[ing] in good faith in accordance with the 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 5 of 25
Defendants’ Reply 

Page 6 

provisions and findings of such advisory opinion shall not . . . be subject to any sanction . 

. . .”). The Commission maintains that Defendants’ reliance on the advisory opinions 

cited in the Complaint, most critically Kolbe, is misplaced. Mem. in Opp’n at 18-21. 

Yet, the Commission subjects Kolbe to a tortured interpretation unsupported by either 

that opinion’s content or the record on which the Commission decided that matter. 

Defendants’ rely upon Kolbe’s holding that “payments of legal fees to respond to 

the Justice Department inquiry into the trip were ‘ordinary and necessary expenses 

incurred in connection with [Kolbe’s] duty as a House member.’” Defs.’ Mem. at 8. 

Defendants maintain that just as Senator Craig’s arrest while on official travel was not 

strictly job-related, neither was Rep. Kolbe’s alleged improper contact with former pages 

while in the Grand Canyon. Yet, in Kolbe the Commission sanctioned the use of 

privately-raised campaign funds to respond to the criminal investigation into those 

allegations, while here it seeks to bar the use of such funds. 

Extraordinarily, the Commission offers a reading wholly different from 

Defendant’ view, alleging that in Kolbe “the Commission expressly stated that a Member 

of Congress may not use campaign funds to respond to a criminal investigation into the 

Member’s personal conduct, even where that conduct occurred on a Congressionallysponsored trip.” Mem. in Opp’n at 1; see also id. at 19. Simply stated, the Commission 

misstates Kolbe’s plain language and holding, basing its position on a series of assertions 

that advocate rewriting Kolbe’s legal conclusions and underlying facts. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 6 of 25
Defendants’ Reply 

Page 7 

1. When It Authorized the Expenditures in Kolbe, the Commission 

Recognized that the Criminal Investigation Involved Allegations of 

Improper Contact with Former House Pages. 

First, the Commission indicates that the “precise nature” of the investigation was 

“unknown” when it approved the use of campaign funds to defend against the inquiry. 

Mem. in Opp’n at 20.5

 As the attached correspondence demonstrates, this is patently 

false. On November 17, 2006, the Commission wrote to the Kolbe for Congress 

committee asking for “further detail regarding the activities that are the subject of the 

[Justice Department] inquiry.” See Letter from Rosemary C. Smith, Assoc. Gen. 

Counsel, FEC, to Katherine McCarron, WilmerHale (Nov. 17, 2006) in Request by Kolbe 

for Congress, AO 2006-35 (Kolbe) at 30-31 (attached hereto as Exhibit A) (“Request 

Documents”). In the letter, the Commission requested a description of the “precise 

nature” of the investigation and how it related to Rep. Kolbe’s official duties: 

Please either confirm that the Department of Justice's 

preliminary inquiry concerns a 1996 trip to the Grand 

Canyon involving Representative Kolbe and two former 

Pages (among others) or, in the alternative, describe the 

preliminary inquiry by the Department of Justice as it 

pertains to Representative Kolbe's duties as an 

officeholder. 

Id. at 31 (emphasis added). The Kolbe for Congress treasurer subsequently confirmed 

that, “The specific details of the Justice Department's preliminary inquiry are largely 

confidential. However, it concerns, among other things, the 1996 rafting trip to the 

 

5 In lieu of alleged contact with former pages on the rafting trip, the FEC’s brief 

does not provide other “official” conduct by Rep. Kolbe subject to the Justice Department 

inquiry. Under the reasoning that it now proffers, the Commission ostensibly sanctioned 

Rep. Kolbe’s use of campaign funds for his “official” criminal defense without 

knowledge of what trip-related activity was subject to scrutiny. In other words, the 

Commission now maintains that the opinion simply restates the law without actually 

applying the personal use statute to Rep. Kolbe’s specific factual situation. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 7 of 25
Defendants’ Reply 

Page 8 

Grand Canyon that has been mentioned in the media.” Letter from William H. Kelley, 

Treasurer, Kolbe for Congress, to J. Duane Pugh, Acting Ass’t Gen. Counsel, FEC (Nov. 

27, 2006) in Request Documents at 32-33 (emphasis added). 

Contrary to the FEC’s assertion, but as reflected in the Kolbe opinion record, the 

media also identified the focus of the inquiry. While the Commission cites an October 

17, 2006, New York Times article to establish its purported ignorance at the time it issued 

the opinion, Mem. in Opp’n at 20, it omits a second article also in its record. Just one 

week later, the Times dispelled any shred of ambiguity: “In the last month, the Justice 

Department has moved forward on inquiries involving two House Republicans: Reps. 

Mark Foley of Florida and Jim Kolbe of Arizona, both being investigated for possible 

improper or illegal sexual contact with teenage congressional pages.” U.S. Prosecutors 

Targeting GOP Lawmakers, N.Y. Times, Oct. 24, 2006 at 2, in Request Documents at 21 

(emphasis added). See also Jonathan Weisman & James V. Grimaldi, Kolbe Matter is 

Referred to Ethics Panel, Washington Post, Oct. 18, 2006 at 2 in Request Documents at 

18 (noting Justice Department investigation of “allegations [that] involve Kolbe's 

behavior toward one of the former pages”). To be clear, these newspaper articles, and 

many other similar reports, were part of the official record on which the Commission 

decided the Kolbe advisory opinion. 

 In light of the above, and contrary to its assertion here, when the Commission 

approved Rep. Kolbe’s use of committee funds it was cognizant that the Justice 

Department was investigating Rep. Kolbe’s possible illegal sexual contact with former 

congressional pages – i.e., private citizens – during his “official” trip to the Grand 

Canyon. No other explanation comports with the official record or language of the 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 8 of 25
Defendants’ Reply 

Page 9 

opinion published by the Commission. Indeed, Commission Chairperson Cynthia L. 

Bauerly, agreed with Defendants’ description of Kolbe’s focus: 

While I agree with you that the paragraphs you cited focus 

on the fact that this was an official trip, the facts that were 

presented to the Commission are all part of the Advisory 

Opinion and it is very clear what the Department was 

looking at was this interaction -- certainly interactions 

between Mr. Kolbe and other members and pages and 

former pages and obviously pages work for the House of 

Representative and their interaction is covered by the code 

of conduct. 

Prob. Cause Tr. [Dkt. # 5-2] at 31:18-32:5 (attached to Mem. in Opp’n). 

2. The “Critical” Limiting Language Cited by the 

Commission is Boilerplate that Affects Only 

Allegations Unknown to the Commission When It 

Published the Kolbe Advisory Opinion. 

 The Commission next cites to “critical” language in Kolbe addressing the use of 

campaign funds for “other allegations . . . that do not concern the candidate’s campaign 

activities or duties as a Federal officeholder.” Mem. in Opp’n at 20. This language is not 

“critical”; it is merely Commission boilerplate that serves as dicta to the opinion. 

First, because the record reflects that the Commission was aware of the Justice 

Department’s focus when it published Kolbe the Commission cannot now plausibly claim 

that Rep. Kolbe’s alleged contact with pages constituted “other allegations” not included 

in the opinion’s analysis. To the contrary, as confirmed by both Rep. Kolbe’s campaign 

treasurer and numerous media reports, that conduct was the only trip-related allegation 

under criminal investigation at the time. A reading of the paragraph that authorizes 

expenditures for the trip-related investigation but excludes coverage of the page-related 

allegations renders the preceding analysis in Kolbe moot and nonsensical. 

Moreover, the limiting paragraph is boilerplate language that the FEC has used 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 9 of 25
Defendants’ Reply 

Page 10 

previously when assessing requests relating to an official inquiry into criminal conduct. 

See, e.g., AO 2005-11 (Cunningham) at 4 (“Because the details of the grand jury 

investigation are not public at this time, however, it is possible that portions of the 

investigation could involve allegations not related to . . . Rep. Cunningham’s duties as a 

Federal officeholder. The use of campaign funds to pay for . . . [legal expenses] not 

related to his . . . duties as a Federal officeholder would constitute an impermissible 

personal use.”) (citing AO 2003-17 & AO 1993-15 (determining that counts within an 

indictment could be severed, depending upon which ones related to campaign activity)). 

In sum, Defendants’ reliance on Kolbe for “safe harbor” from sanction comports 

with the clear holding of the opinion: a member of Congress is permitted to use campaign 

funds to pay for legal expenses relating to a defense of alleged criminal activity that takes 

place while on official travel. See AO 2006-35 at 4 (“Representative Kolbe’s legal 

expenses in responding to this Department of Justice inquiry regarding the rafting trip are 

ordinary and necessary expenses incurred in connection with his duty as a House member 

and would not exist irrespective of his duties as a Federal officeholder.”). 

The Commission can neither rewrite its holding on the fly nor remake the facts on 

which it relied. In its conclusion, the FEC asserts that: “In no advisory opinion did a 

requester claim, as defendants do here, that the legal expenses incurred arose from 

concededly personal conduct unrelated to officeholder duties, but which happened to 

occur while on an official trip.” Mem. in Opp’n at 22-23. But, of course, that is the claim 

made by Rep. Kolbe’s committee and approved by the Commission’s advisory opinion. 

Pursuant to § 437f(c), Defendants are authorized to rely on that holding and as such, this 

Court should dismiss this matter. See Fed. R. Civ. P. 12(b)(6). 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 10 of 25
Defendants’ Reply 

Page 11 

V. SECTION 439a PERMITS DEFENDANTS’ CAMPAIGN EXPENDITURES 

FOR LEGAL FEES 

 The personal use statute’s safe harbor provision permits the expenditures at issue, 

2 U.S.C. § 439a(a)(2). Similarly, the statute’s prohibition section does not reach the 

expenditures at issue, 2 U.S.C. § 439(b)(2). 

Chevron deference to the Commission’s interpretation of either provision is 

unnecessary: “If the intent of Congress is clear, that is the end of the matter; for the court, 

as well as the agency, must give effect to the unambiguously expressed intent of 

Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 

(1984); see, e.g., Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) 

(refusing to defer to agency interpretation of a statute because agency “is clearly wrong”). 

 Additionally, under the Commissions’ own interpretation, the expenditures at 

issue here are both permissible under § 439a(a)(2) and excluded from prohibition under § 

439a(b)(2). Subject to important exceptions, see Part VI, infra, the Commission is 

afforded deference to its interpretations of § 439a. See FEC v. Dem. Sen. Campaign 

Comm., 454 U.S. 27, 37 (1981) (“DSCC”)). This Court should uphold the interpretation 

of § 439a as stated in Commission regulations, see Fulani v. FEC, 147 F.3d 924, 926 

(D.C. Cir. 1998), advisory opinions, see FEC v. Nat'l Rifle Ass'n of Am., 254 F.3d 173, 

185-87 (D.C. Cir. 2001), and dismissals of enforcement actions, see In re Sealed Case, 

223 F.3d 775, 780 (D.C. Cir. 2000).6

 

6 While this Court need not defer to those Commission interpretations that are 

unreasonable, Chevron, 467 U.S. at 844, Defendants agree that Commission 

interpretations in the previous advisory opinions and regulations cited here (and now 

repudiated in the Commission’s memorandum in opposition) are reasonable. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 11 of 25
Defendants’ Reply 

Page 12 

A. The Expenditures were “Ordinary and Necessary Expenses In 

Connection” with Senator Craig's Duties as a Holder of Federal Office 

 The statute expressly permits expenditures “for ordinary and necessary expenses 

incurred in connection with duties of the individual as a holder of Federal office.” 2 

U.S.C. § 439a(a)(2). Senator Craig's legal matter arose in connection with his official 

travel pursuant to his duty to travel to Washington, D.C. for a session of Congress; 

expenditures for legal fees to handle that matter are therefore permissible. 

1. Section 439a(a)(2) Permits Expenditures Beyond Just 

the Direct Cost of the Duties of a Federal Officeholder 

The Commission insists that § 439a(a)(2) does not cover Senator Craig’s legal 

expenses because he “did not incur any legal expenses . . . for any official business that 

he conducted while on that trip,” and that his need for legal fees “could not have arisen 

out of Craig's travel, because Craig was not arrested for traveling.” Mem. in Opp’n at 10, 

13. The FEC ignores the plain text of the statute permitting expenditures “for ordinary 

and necessary expenses incurred in connection with duties of the individual as a holder of 

Federal office.” 2 U.S.C. § 439a(a)(2) (emphasis added). Its argument would rewrite the 

provision to permit expenditures only “for ordinary and necessary expenses incurred 

directly for duties of the individual as a holder of Federal office.” 

 Because “courts must presume that a legislature says in a statute what it means 

and means in a statute what it says there,” Conn. Nat'l Bank v. Germain, 503 U.S. 249, 

253-54 (1992), the clear result is that the phrase “in connection with” necessarily 

broadens the reach of permissible expenditures beyond the immediate costs of official 

duties. The Commission has repeatedly interpreted the statute this way. As detailed,

supra ̧Part IV, in the Kolbe advisory opinion the Commission approved then-Rep. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 12 of 25
Defendants’ Reply 

Page 13 

Kolbe’s expenditures for legal fees for a Justice Department investigation “surrounding 

an official congressional trip to the Grand Canyon attended by Representative Kolbe and 

two former House Pages, among others.” AO 2006-35 at 2, 3-4. Yet, under the 

Commission’s analysis, Rep. Kolbe’s need for legal fees “could not have arisen out of 

[his] travel, because [he] was not [investigated] for traveling.” Like Senator Craig, Rep. 

Kolbe “did not incur any legal expenses . . . for any official business that he conducted 

while on that trip.” Cf. Mem. in Opp’n at 10, 13 (countering Defendants’ analysis). Yet, 

the FEC approved Rep. Kolbe’s expenditures. AO 2006-35 at 3-4. 

 The Commission’s rationale in Kolbe, interpreting § 439a(a)(2) to permit 

expenditures relating to conduct beyond the direct costs of official duties, is reasonable 

and entitled to Chevron deference. 467 U.S. at 844. This interpretation protects Senator 

Craig, who spent campaign funds to pay for legal expenses, not directly for official 

activity, but nonetheless “in connection with” that activity. 

2. Section 439a(a)(2) Contains No “Purely Personal Conduct” 

Exception to Permissible Expenditures 

The Commission claims that expenditures for legal fees relating to “purely 

personal conduct'” can never qualify for protection under § 439a(a)(2). Mem. in Opp’n 

at 11 (quoting Compl. ¶ 22), 13-15. The statute does not support that claim. 

 A matter (and corresponding legal fees) that arises “in connection with” an 

officeholder’s duties may nonetheless involve elements of “purely personal conduct”; the 

two are not mutually exclusive. The statute’s plain language only requires that the need to 

pay for legal fees arise “in connection with” an official duty. As such, § 439a(a)(2) 

reaches expenditures for legal fees involving legal matters that involve elements of 

personal conduct. See Smith v. United States, 508 U.S. 223, 228 (1993) (“[Courts] 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 13 of 25
Defendants’ Reply 

Page 14 

normally construe [statutory language] in accord with its ordinary or natural meaning.”). 

 In fact, reading a “personal conduct” exception into the statute would directly 

conflict with the U.S. Senate’s understanding of what constitutes activity “in connection 

with . . . the duties of an individual as a [Senator].” 2 U.S.C. § 439a(a)(2). The Senate 

explicitly provides that some personal conduct may nonetheless be officially related and 

eligible for Senate reimbursement. See U.S. Senate Travel Regulations, reprinted in 152 

Cong. Rec. S11473 (daily ed. Dec. 7, 2006) (“Per diem expenses include all charges for . 

. . personal use of room during daytime . . . .). 

Senator Craig's legal matter arose “in connection with . . . [his] duty as a [U.S. 

Senator],” 2 U.S.C. § 439a(a)(2), to travel to Washington because the legal matter arose 

during the trip itself. The statute is clear that it is irrelevant whether the Commission 

views the incident as involving elements of “purely personal conduct.” 

Moreover, the Commission has approved a wide variety of expenditures for legal 

fees where the underlying legal matter directly involved personal conduct. See AOs 

2006-35 (Kolbe) (interactions with House pages), 2005-11 (Cunningham) (taking bribes), 

2000-40 (McDermott) (intercepting telephone calls), & 1997-27 (Boehner) (same). The 

Commission correctly observes that all four opinions involved some connection to the 

official duties of the Congressmen at issue. Mem. in Opp'n 19-22. That does not change 

the fact that the underlying conduct itself was, in fact, personal and non-official conduct. 

The advisory opinions’ interpretation of § 439a(b)(2) permitting expenditures for legal 

fees even where personal conduct underlies the legal matter is reasonable and entitled to 

deference. See Chevron, 467 U.S. at 844. 

Senator Craig's conduct was no less and no more personal than a rafting trip with 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 14 of 25
Defendants’ Reply 

Page 15 

former House pages and his family (i.e., private citizens), receiving bribes, or accessing 

an intercepted telephone call. But like those four Congressmen, Senator Craig’s activity 

was connected to his officeholder duties. 

3. Section 439a(a)(2) Contains No “Temporal Proximity” 

Requirement 

The Commission further suggests that, because Senator Craig’s court proceedings 

occurred after his official travel, expenditures made to handle those legal proceedings are 

not connected to the travel itself. Mem. in Opp’n at 10. The statute contains no 

requirement for temporal proximity; it requires only that the legal proceedings arise “in 

connection with” Senator Craig’s official duties. See 2 U.S.C. § 439a(a)(2). Such a 

requirement would exclude nearly every expenditure for legal fees from coverage, 

because litigation rarely occurs on the same day as the incident relating to the litigation. 

Indeed, the Commission has frequently interpreted § 439a(a)(2) to permit 

expenditures for legal fees even where the expenditures are made, or the legal matter 

arose, well after the date of the incident. See, e.g., AO 2006-35 (Kolbe) (expenditures in 

2006; underlying incident in 1996); 2005-11 (Cunningham) (expenditures in 2005; 

underlying incident in 2003); 2000-40 (McDermott) (expenditures in 2000; underlying 

incident in 1996). An interpretation that does not impose such a timing requirement is 

reasonable and entitled to deference. See Chevron, 467 U.S. at 844. 

4. Section 439a(a)(2) Contains No “Collateral Litigation” 

Exception to Permissible Expenditures. 

The FEC also argues that the expenditures are impermissible because Senator 

Craig's post-conviction attempt to vacate his guilty plea was a new proceeding, separate 

and apart from the criminal conviction itself. Mem. in Opp’n at 10. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 15 of 25
Defendants’ Reply 

Page 16 

 Again, the plain language of the statute contains no such exception for collateral 

litigation; it merely requires that the legal fees be spent on matters “in connection with” 

an officeholder's duty. Post-conviction collateral attacks on criminal convictions are 

intertwined with both the original criminal proceedings and the underlying incident 

giving rise to the criminal proceedings. They are, of course, necessarily made “in 

connection with” the underlying legal matter. 

 To read the statute as excluding collateral litigation would also lead to absurd 

results. Cf. Griffin v. Oceanic Contractors, 458 U.S. 564, 575 (1982). For instance, 

suppose an official House report revealed embarrassing details about particular 

elementary school students, who then sued the members who authored the report for 

invasion of privacy in state court. Cf. Doe v. McMillan, 412 U.S. 306 (1973) (holding 

that House members were immune from such a suit). Under the Commission’s view, the 

Member-Defendants could use campaign funds to defend the state court suit itself, but 

not to pay for a collateral proceeding in federal court to enjoin the state court suit on 

McMillan grounds.7

 Such a distinction is arbitrary and unsupported by the statute. 

B. Because These Expenditures Were Permissible, They Cannot Be a 

Prohibited “Personal Use” Under Section 439a(b) 

Congress wrote the statue so that any use listed by § 439a(a)(1)–(5) is permissible, 

even if § 439a(b) would otherwise prohibit it as a “personal use.” The statute permits 

officeholders to spend campaign funds for a host of specific activity, see 2 U.S.C. § 

439a(a)(1)–(5), as well as “for any other lawful purpose, unless prohibited by subsection 

(b) of this section.” Id. § 439a(a)(6) (emphasis added). Because “unless prohibited by [§ 

 

7 This is not to say that the members of Congress would necessarily prevail in their 

collateral litigation in federal court. The point is that the Commission’s test would 

prevent them from using their campaign funds to even try to litigate. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 16 of 25
Defendants’ Reply 

Page 17 

439(b)]” appears in paragraph (a)(6) but not in paragraphs (a)(1)–(5), the expressio unius 

canon compels the conclusion that Congress intentionally omitted “except personal use” 

in the first five paragraphs. Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997). 

Thus, Congress intended to prohibit expenditures for “personal use” under § 439(b) only 

when an officeholder spends campaign funds pursuant to its authority under paragraph 

(a)(6) to spend for “any other lawful purpose,” id. § 439a(a)(6). It did not prohibit such 

expenditure when an officeholder uses campaign funds pursuant to paragraphs (a)(1) to 

(a)(5). See NRA, 254 F.3d at 194 (“[W]here Congress includes particular language in one 

section of a statute but omits it in another section of the same Act, it is generally 

presumed that Congress acts intentionally and purposely in the disparate inclusion or 

exclusion.”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). 

 The Commission’s alternative construction notably directs this Court to ignore § 

439a(a)(2) entirely, arguing that it “adds nothing” to the statutory analysis, Mem. in 

Opp'n at 8-9 n.3. That reading contradicts the principle of statutory construction that 

courts “must give effect to every word of a statute wherever possible,” Leocal v. 

Ashcroft, 543 U.S. 1, 12 (2004). Because “the cannons [sic] of avoiding surplusage and 

expressio unius are at their zenith when they apply in tandem,” Indep. Ins. Agents of Am., 

Inc. v. Hawke, 211 F.3d 638, 645 (D.C. Cir. 2000), the argument for rejection of the 

Commission's construction has even greater force. 

 The result is clear and unambiguous: conduct permitted under § 439a(a)(2) 

removes it from § 439a(b)’s prohibitions. 

Further, the FEC’s suggestion that § 439a(a)(2) “adds nothing” to the statutory 

analysis, Mem. in Opp’n at 8-9 n.3, is simply not credible. The Commission itself cites 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 17 of 25
Defendants’ Reply 

Page 18 

that provision repeatedly in its regulations and advisory opinions – something the 

Commission would not do if the provision were simply redundant with § 439a(a)(6). See, 

e.g., 11 C.F.R. § 113.2(a); AOs 2006-35 (Kolbe) at 2, 4; 2005-11 (Cunningham) at 2-3; 

2000-40 (McDermott) at 4. 

 Far from “adding nothing,” the Commission itself has described § 439a(a)(2) as 

“[a] specific exemption to the ban on personal use,” AO 1997-27 (Boehner) at 2. This 

Court owes this interpretation Chevron deference. See DSCC, 454 U.S. at 37. 

C. The Expenditures are Not a Prohibited “Personal Use” under Section 

439a(b)(2) 

 Even if the statute contained no carve-out for permitted uses, the personal use 

statute clearly and unambiguously excludes this expenditure from that prohibition. The 

statute defines “personal use” as conduct that would “fulfill any commitment, obligation, 

or expense of a person that would exist irrespective of the . . . individual’s duties as a 

holder of Federal office . . . .” 2 U.S.C. § 439a(b)(2). Senator Craig simply would not 

have expended any legal fees “irrespective” of his position as a member of Congress. 

1. The Limiting Principle of the “Irrespective” Test Coincides 

with the Principle of Tort Law, Respondeat Superior 

 The Commission contends that Defendants’ reading of the irrespective test “has 

no logical stopping point.” Mem. in Opp'n at 14. The Commission complains that the 

irrespective test would even allow a member of Congress to pay for legal fees to defend a 

charge of driving under the influence if the incident occurred while the member was 

driving to a session of Congress. Id. Defendants need not establish the statute’s 

boundaries, nor does this case resemble a drunk driving matter. Moreover, the 

Constitution confers numerous privileges on members of Congress simply by dint of their 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 18 of 25
Defendants’ Reply 

Page 19 

office, some of which provide expansive privileges available to no other United States 

citizens. See, e.g., U.S. Const., Art. I, § 6, cl. 1 (immunities provided by Speech or 

Debate Clause). 

 But rather than accepting the test that Congress has enacted, the FEC proposes its 

own arbitrary limiting principle focusing on the conduct underlying the incident giving 

rise to the legal fees. Mem. in Opp’n at 11-12. Such a result is at odds with the plain 

language of the “irrespective” test. See Watson v. United States, 552 U.S. 74, 79 (2007) 

(“With no statutory definition or definitive clue, the meaning of the [a statutory term] has 

to turn on the language as we normally speak it. . . .”). 

 As Defendants explained in the administrative proceedings below, see Prob. 

Cause Tr. [Dkt. # 5-2] at 16:2–18:16, 26:8–28:5, the proper limiting principle is akin to 

the respondeat superior principle of tort law. Under respondeat superior, “[a] principal is 

not liable for his agent's tort unless it is within the scope of the agent’s employment.” 

Park Transfer Co. v. Lumbermens Mut. Cas. Co., 142 F.2d 100, 100 (D.C. Cir. 1944) 

(internal quotation marks omitted). This is nearly synonymous with the irrespective test: 

conduct that would not “exist irrespective of . . . an individual's duties as a holder of 

Federal office,” would also fall “within the scope of the agent's employment” as an 

officeholder; conversely, activity that would “exist irrespective of” an officeholder's 

official duties would not fall “within the scope of the agent's employment” as an 

officeholder. 2 U.S.C. § 439a(b)(2); cf. Park Transfer, 142 F.2d at 100. 

 It is not unheard of for courts to interpret statutes as adopting common law 

principles.8

 See Neder v. United States, 527 U.S. 1, 21-22 (1999). Using respondeat 

 

8 This canon is mandatory only where Congress uses a term with an established 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 19 of 25
Defendants’ Reply 

Page 20 

superior as an analogous principle avoids the absurd results of the Commission’s underinclusive test, see Griffin, 458 U.S. at 575 (prohibiting absurd results), and is consistent 

with the actual statutory test enacted by Congress. Such a test creates no tension with the 

per se personal uses listed in § 439a(b)(2)(A)–(I), cf. Mem. in Opp’n at 14. Likewise, 

Senator Craig’s use of the restroom while traveling was related to the contemplated scope 

of his duties as Senator. See U.S. Senate Travel Regulations, reprinted in 152 Cong. Rec. 

S11473 (daily ed. Dec. 7, 2006) (authorizing reimbursement for, inter alia, a Senator’s 

use of a bathroom while on official travel). 

 Accordingly, the statute is clear and unambiguous: Senator Craig’s legal 

expenditures were not a prohibited personal use because the legal fees did not arise 

irrespective of his duties as a holder of Federal office. Moreover, the Commission’s 

prior, official interpretations of § 439a(b) sanction Senator Craig’s expenditures. Those 

interpretations are reasonable and entitled to deference. Chevron, 467 U.S. at 844. 

VI. THE COMMISSION'S POST HOC RATIONALIZATIONS FOR 

 CHANGING SETTLED LAW ARE NOT ENTITLED TO DEFERENCE 

The FEC asserts that it is “entitled to deference” both for application of the 

“personal use” statute and to Defendants’ ability to rely on the Commission’s precedent. 

Mem. in Opp’n at 7-8. While the Commission’s reading of its governing area is afforded 

a degree of deference, precedent does not mandate that this Court defer to its tortured and 

novel reading of those provisions. 

 

 

meaning at common law. See Carter v. United States, 530 U.S. 255, 264-66 (2000). 

“Irrespective” has no such established common law meaning. However, nothing prevents 

this Court from using the common law to inform its interpretation. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 20 of 25
Defendants’ Reply 

Page 21 

 A. The Commission's Interpretations in Affirmative Decisions 

 to Institute an Enforcement Action are Not Entitled to Deference 

 “[A]gencies’ legal views are deferred to only when they make a determination 

(either quasi-legislative or quasi-judicial) that has independent legal significance –as 

opposed to when they act in a prosecutorial role.” United States v. Western Elec. Co., 900 

F.2d 283, 297 (D.C. Cir. 1990). When the Commission brings an enforcement action it 

“act[s] in a prosecutorial role.” Id. Unlike a regulation, advisory opinion, or even a 

decision to dismiss an enforcement action, the Factual & Legal Analysis (“F&LA”) 

explaining the reasoning for instituting this enforcement action has no “independent legal 

significance,” id., because the F&LA alone cannot force a respondent to pay any civil 

penalty or obey a Commission demand. See 2 U.S.C. § 437g(a)(6) (requiring court 

judgment). Consequently, Commission interpretations supporting a decision to bring an 

enforcement action warrant no deference. Western Elec. Co., 900 F.2d at 297. 

FEC v. Nat'l Rifle Ass’n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001) (“NRA”), 

which the FEC cites, Mem. in Opp'n at 7-8, confirms this. NRA held only that the 

contents of existing advisory opinions, not enforcement decisions, were entitled to 

deference. Id. at 185-86. NRA’s statement that “the probable cause determination and its 

underlying statutory interpretation . . . warrant Chevron deference,” id. at 185, is entirely 

dicta. In fact, the D.C. Circuit does not defer to Commission interpretations used to 

institute an enforcement action. FEC v. Nat'l Republican Sen. Comm., 966 F.2d 1471, 

1476 (D.C. Cir. 1992). Other cases defer only to Commission interpretations supporting 

the Commission's decision to dismiss a complaint, not to affirmatively institute an 

enforcement action. See, e.g., FEC v. Dem. Sen. Campaign Comm., 454 U.S. 27, 37 

(1981); In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000). 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 21 of 25
Defendants’ Reply 

Page 22 

1. The FEC’s Novel Interpretation in this Case is Particularly 

Unworthy of Deference. 

 Courts do not defer to agency interpretations made, as here, for the first time in 

litigation or where, as here, the interpretation contradicts prior agency interpretations. 

See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-68 (2012). 

 Until now, not a single Commission advisory opinion or enforcement action has 

ever utilized a “necessary nexus” test. See F&LA at 10:16–20, MUR 6128 (Craig) [Dkt. 

# 5-1] (establishing, but citing no authority, for the “necessary nexus” test). Because it is 

unacceptable “to require regulated parties to divine the agency’s interpretations in 

advance or else be held liable when the agency announces its interpretations for the first 

time in an enforcement proceeding and demands deference,” Christopher, 132 S. Ct. at 

2168, the Commission’s action here counsels against deference. 

 Additionally, “the consistency of an agency’s position is a factor in assessing the 

weight that position is due.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 

(1993); see also DSCC, 454 U.S. at 37-38. The “necessary nexus” test is inconsistent 

with prior Commission interpretations. Compare AO 1998-01 (Hilliard) at 6 (approving 

expenditures for some legal expenses “for responding to [a] review or investigation of 

activities arising before [the requestor’s] candidacy”) (emphasis added) and AO 1997-12 

(Costello) at 6 (approving expenditures for certain legal fees that “do not directly relate to 

allegations arising from [the requestor’s] . . . officeholder activity” [sic]) (emphasis 

added)9 with Mem. in Opp'n at 14 (authorizing expenditures for legal fees “when the 

actual conduct giving rise to the allegations occurred as a direct result of officeholder 

 

9 Though these opinions are not precisely on point, they illustrate that the 

Commission did not always follow the rule that it purports to follow today. 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 22 of 25
Defendants’ Reply 

Page 23 

status or duties, but not when the specific conduct was unrelated to such status or duties”) 

(emphasis in original) (citations omitted). 

 Because the “necessary nexus” test makes its first appearance in this enforcement 

action and is inconsistent with prior Commission interpretations, the FEC’s FL&A 

deserves no deference. See Christopher, 132 S. Ct. 2166-68. 

B. The FEC’s Interpretations of Its Advisory Opinions Receive No 

Deference in a “Good Faith Reliance” Analysis under § 437f(c) 

 The Commission demands deference to its interpretations of its advisory opinions, 

even when determining whether prior opinions protect Defendants under § 437f(c). 

Mem. in Opp’n at 19 n.5. Such deference is generally appropriate, cf. Auer v. Robbins, 

519 U.S. 452, 461-63 (1997), but not in a § 437f(c) analysis. 

 1. Congress Did Not Authorize the Commission to be the Sole Arbiter of 

 Whether Existing Advisory Opinions Protect Individuals. 

 Granting Auer deference to Commission interpretations of advisory opinions in a 

§ 437f(c) analysis would nullify subparagraph (c)(1)(B), which extends that protection to 

persons other than the requestor. If Auer applied even under § 437f(c) only the requestor 

could obtain the protection of an existing advisory opinion unless the Commission 

consented. In any other enforcement proceeding, courts would simply defer under Auer 

to the Commission's determination that the existing opinion did not apply. Such an 

individual’s only remedy would be to request his or her own opinion on the same subject. 

 If Congress desired such a result, it would have preserved the old statute in which 

an opinion protected only the requestor. See 2 U.S.C. § 437f(b) (Supp. V 1975). Instead, 

Congress amended the statute to ensure that persons other than the requestor also 

qualified for protection. Pub. L. No. 94-283 § 108(a), 90 Stat. 475, 481-82 (1976) 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 23 of 25
Defendants’ Reply 

Page 24 

(codified as amended at 2 U.S.C. § 437f(c)(1)(B) (2006)). Because deference only applies 

when Congress would want it to apply, see United States v. Mead Corp., 533 U.S. 218, 

230 n.11 (2001), and courts “must give effect to every word of a statute wherever 

possible,” the Commission may not use Auer to nullify § 437f(c)(1)(B). Auer should not 

apply in a § 437f(c) analysis. 

2. The Auer Rationale Does Not Support Deference in Context of 

a “Good Faith Reliance” Analysis under § 437f(c). 

Auer deference rests on the freedom of an agency to change or rewrite its 

regulations at will, even in the face of an unfavorable judicial construction. See Auer, 

519 U.S. at 463. By contrast, the Commission may only issue opinions at the request of a 

third party. 2 U.S.C. § 437f(a)(1); see also id. § 437f(b) (“No opinion of an advisory 

nature may be issued by the Commission or any of its employees except in accordance 

with [§ 437f].”). Because the Commission could not sua sponte rewrite an advisory 

opinion in the face of an unfavorable judicial construction, Auer should not apply to 

Commission interpretations of its opinions in a § 437f(c) analysis. 

 C. Post Hoc Rationalizations by Counsel Are Not Entitled to Deference 

 The opposition brief suggests a host of legal interpretations never before ratified 

by the Commission itself. See generally, Mem. in Opp’n. Any such interpretations not 

contained within the four corners of a document endorsed by at least four of the six 

Commissioners, see 2 U.S.C. § 437c(c), are not entitled to any deference. See Dem. 

Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1135 n.6 (D.C. Cir. 1987); Util. Workers 

Union of Am., Local 369 v. FEC, 691 F. Supp. 2d 101, 106 (D.D.C. 2010). 

 Accordingly, the following statutory interpretations in the FEC’s brief are not 

Commission-wide interpretations, and are not entitled to any deference: 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 24 of 25
Defendants’ Reply 

Page 25 

− that traveling to Washington, D.C. for a meeting of Congress is not one of “the 

duties of an individual as a holder of Federal office” under § 439a; 

− that the statutory structure renders § 439a(a)(2) redundant and irrelevant; 

− that there is an implicit “collateral litigation” exception from the permissible use 

of campaign funds for “ordinary and necessary expenses in connection with . . . 

the duties of an individual as a holder of Federal office” under § 439a(a)(2); 

− that there is an implicit “temporal proximity” exception from the permissible use 

of campaign funds for “ordinary and necessary expenses in connection with . . . 

the duties of an individual as a holder of Federal office” under § 439a(a)(2). 

VII. CONCLUSION 

The statute does not prohibit these expenditures, either by its clear and 

unambiguous language, or as-interpreted in those Commission documents entitled to 

deference. Additionally, the Commission’s Kolbe advisory opinion directly bars this 

action and grants Defendants a safe haven. Accordingly, this Court should grant 

Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). 

Dated: September 24, 2012 Respectfully Submitted, 

 /s/ Andrew D. Herman 

 STANLEY M. BRAND 

 D.C. Bar # 213082 

 ANDREW D. HERMAN 

 D.C. Bar # 462334 

 BRAND LAW GROUP, PC 

 923 Fifteenth Street, N.W. 

 Washington, D.C. 20005 

 (202) 662-9700 

Case 1:12-cv-00958-ABJ Document 7 Filed 09/24/12 Page 25 of 25