United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2015 Decided March 4, 2016

No. 14-5297

FEDERAL ELECTION COMMISSION,

APPELLEE

v.

CRAIG FOR U.S. SENATE AND LARRY E. CRAIG,

INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS TREASURER

OF CRAIG FOR U.S. SENATE,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00958)

Andrew D. Herman argued the cause for appellants. With

him on the briefs were Aiysha S. Hussain and Stanley M. Brand.

Kevin P. Hancock, Attorney, Federal Election Commission,

argued the cause for appellee. With him on the brief were Kevin

Deeley, Acting Associate General Counsel, Harry J. Summers, 

Assistant General Counsel, and Robert W. Bonham III, Senior

Attorney.

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,

and SENTELLE, Senior Circuit Judge.

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Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: The Federal Election Commission

alleges that former Senator Larry E. Craig, his campaign

committee, and the committee’s Treasurer converted campaign

funds to the Senator’s personal use in violation of the Federal

Election Campaign Act. That conversion occurred, the

Commission contends, when the appellants spent campaign

funds to pay legal fees the Senator incurred in connection with

efforts to withdraw his guilty plea to a criminal charge of

disorderly conduct. The district court granted summary

judgment on the Commission’s complaint and ordered Senator

Craig to disgorge $197,535 to the U.S. Treasury and pay a civil

penalty of $45,000. We affirm the court’s grant of summary

judgment and its remedial orders.

I

Larry E. Craig represented Idaho in the United States Senate

from 1991 to 2009. On June 11, 2007, he was flying from Idaho

to Washington, D.C., with a stop for a connecting flight at the

Minneapolis-St. Paul International Airport. During that stop, a

police officer arrested the Senator in the airport bathroom on

charges of disorderly conduct and interference with privacy. On

August 1, Craig signed and mailed the Minnesota state

authorities a plea agreement, pursuant to which he pled guilty to

a criminal misdemeanor charge of disorderly conduct and paid

a fine and costs totaling $575.

The details of Senator Craig’s arrest and plea soon became

public. On Monday, August 27, Roll Call, a newspaper that

covers the United States Congress, obtained the June 11 arrest

report and published an article headlined, “Craig Arrested,

Pleads Guilty Following Incident in Airport Restroom.” J.A.

225-26. Within a day, Senators and a congressional watchdog

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group were urging the Senate Select Committee on Ethics (the

Senate Ethics Committee) to investigate. At the request of the

Senate Republican leadership, Senator Craig stepped down from

his committee leadership positions. On August 30, in response

to questions about the arrest, the airport police released an

audiotape of Craig’s interview with the arresting officer. 

Two days later, on September 1, the Senator announced that

he would resign from the Senate effective September 30. On

September 5, his attorneys submitted a letter to the Senate Ethics

Committee arguing that the arrest fell outside the Committee’s

jurisdiction because the arrest was for “purely personal conduct

unrelated to the performance of official Senate duties.” Letter

from Brand Law Group to Hon. Barbara Boxer, Chairwoman,

Senate Ethics Comm. (Sept. 5, 2007) (J.A. 179).

The following Monday, September 10, Senator Craig filed

a motion with the Minnesota state trial court to withdraw his

guilty plea. The court denied the motion on October 4. That

same day, the Senator announced that he had reconsidered his

plan to resign. He said he would serve the remaining fifteen

months of his Senate term, which he did, retiring from the

Senate in January 2009.

Also on October 4, the Senator’s attorneys advised him that

“it is clear that [Federal Election Commission] advisory

opinions authorize full payment with campaign funds for legal

representation in all matters before the Senate Ethics

Committee.” Letter from Brand Law Group to Hon. Larry E.

Craig (Oct. 4, 2007) (J.A. 155). They further “conclude[d] that

all expenses incurred for . . . legal representation in Minnesota

state court are . . . fully payable with campaign funds,” but

warned that there were “no directly applicable [Commission]

opinions” addressing that issue. Id. 

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A few weeks later, on October 29, Senator Craig’s

campaign committee, Craig for U.S. Senate (the Craig

Committee), made the first in a series of payments to attorneys

for legal costs arising from the Senator’s efforts to withdraw his

guilty plea. Those payments would continue while the Senator

appealed the decision of the Minnesota trial court. The

Minnesota appellate court would ultimately reject that appeal in

December 2008. 

 In February 2008, the Senate Ethics Committee issued a

“Public Letter of Admonition” to Senator Craig. Among other

things, the letter warned that the costs associated with the

Senator’s efforts to withdraw his plea “may not be deemed to

have been incurred in connection with your official duties, either

by the Committee or by the Federal Election Commission.” 

Letter from Senate Ethics Comm. to Hon. Larry E. Craig (Feb.

13, 2008) (J.A. 236). 

In November 2008, the Federal Election Commission (FEC)

received an administrative complaint alleging that Senator Craig

had unlawfully spent campaign funds on legal fees related to his

arrest and conviction. On the basis of the Senator’s response

and the then-available information, the Commission identified

three categories of campaign disbursements at issue: for legal

fees incurred in connection with the Senate Ethics Committee’s

inquiry, for public relations fees incurred in responding to press

inquiries, and for legal fees incurred in connection with the

Senator’s attempt to withdraw his guilty plea. The FEC

determined that disbursements in the first two categories were

permissible, but it found “reason to believe” that Craig’s use of

campaign funds to pay legal expenses in connection with the

attempt to withdraw the guilty plea “constitute[d] impermissible

use . . . in violation of” the Federal Election Campaign Act

(FECA). Reason to Believe Finding, Factual and Legal

Analysis, In re Larry E. Craig, Matter Under Review 6128, at

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11 (J.A. 73); see id. at 8-13 (J.A. 70-75); see also 52 U.S.C.

§ 30109(a)(2) (regarding “reason to believe” findings).

After conducting an investigation, the Commission voted

5-0 (with one Commissioner recused) to find “probable cause to

believe” that Senator Craig, the Craig Committee, and Kaye L.

O’Riordan as Treasurer had violated FECA. See 52 U.S.C.

§ 30109(a)(4) (regarding “probable cause to believe” findings). 

Thereafter, the FEC attempted to correct the violation through

the informal conciliation process prescribed by the statute. Id.

§ 30109(a)(4)(A)(i). Unable to secure an acceptable conciliation

agreement, the Commission voted 5-0 (again, with one

Commissioner recused) to authorize the current litigation. See

FEC Compl. ¶¶ 28-30 (J.A. 59-60). 

FECA provides that, “[i]f the Commission is unable to

correct or prevent any violation of this Act” by informal

conciliation, “the Commission may, upon an affirmative vote of

4 of its members, institute a civil action for relief” in United

States district court. 52 U.S.C. § 30109(a)(6)(A). On June 11,

2012, the Commission filed this lawsuit against defendants

Craig, the Craig Committee, and then-Treasurer O’Riordan. 

After O’Riordan resigned as Treasurer, Senator Craig assumed

the position. He has since been substituted for O’Riordan as a

defendant in that official capacity as well.

The FEC’s complaint charged that the defendants violated

FECA, 52 U.S.C. § 30114(b), by disbursing more than $200,000

in campaign contributions to the Sutherland, Asbill & Brennan

and Kelly & Jacobson law firms to pay for legal expenses

incurred in connection with efforts to withdraw Senator Craig’s

guilty plea. The FEC sought declaratory and injunctive relief,

disgorgement by Senator Craig of all improper disbursements,

and the assessment of civil penalties. 

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The defendants filed a motion to dismiss, which the district

court denied. FEC v. Craig for U.S. Senate, 933 F. Supp. 2d

111 (D.D.C. 2013). The following year, the court granted the

FEC’s motion for summary judgment, holding that the

defendants had violated FECA’s ban on converting campaign

funds to personal use. FEC v. Craig for U.S. Senate, 70 F.

Supp. 3d 82 (D.D.C. 2014). The defendants’ -- now

appellants’ -- first challenge is to this holding, which we review

in Parts II and III.

The district court also ordered Senator Craig to disgorge the

value of the improperly spent funds to the U.S. Treasury. The

court fixed the amount of such funds at $197,535. In addition,

it imposed a civil penalty of $45,000. The appellants challenge

both the disgorgement and the civil penalty orders. We address

those challenges in Part IV.

II

The district court held that, by using campaign contributions

to fund the legal battle to withdraw the Senator’s guilty plea,

Senator Craig and the Craig Committee violated 52 U.S.C.

§ 30114(b). We review the district court’s grant of summary

judgment de novo. Gentiva Healthcare Corp. v. Sebelius, 723

F.3d 292, 295 (D.C. Cir. 2013). Summary judgment is

appropriate if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). 

A

FECA contains a list of “[p]ermitted uses” for campaign

contributions. 52 U.S.C. § 30114(a). As relevant here, such

uses include payments for “ordinary and necessary expenses

incurred in connection with duties of the individual as a holder

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of Federal office,” id. § 30114(a)(2), and expenditures “for any

other lawful purpose unless prohibited by subsection (b) of this

section,” id. § 30114(a)(6). 

The district court first held that the appellants’ expenditures

were not permitted under § 30114(a)(2) because “legal expenses

incurred in withdrawing a plea to personal criminal conduct . . .

could not be characterized as ordinary and necessary expenses

in connection with Senator Craig’s duties as an officeholder.”

Craig for U.S. Senate, 70 F. Supp. 3d at 88 (internal quotation

marks omitted). The court then held that the expenditures were

also impermissible under § 30114(a)(6) because the use of

campaign contributions to cover such legal expenses is

prohibited by § 30114(b). Appellants challenge only the latter

holding. See Reply Br. 3, 5. Our inquiry is therefore limited to

whether Senator Craig’s use of campaign contributions

constituted a “prohibited use” under § 30114(b). 

Section 30114(b)(1) prohibits “conver[sion]” of campaign

contributions to “personal use.” Section 30114(b)(2) provides

that contributions are “converted to personal use if . . . used to

fulfill any commitment, obligation, or expense of a person that

would exist irrespective of the candidate’s election campaign or

individual’s duties as a holder of Federal office.” 52 U.S.C.

§ 30114(b)(2) (emphasis added). Whether Senator Craig’s legal

expenses to withdraw his plea were expenses that would exist

“irrespective” of his election campaign or official duties is the

central question in this case.

B 

The “irrespective definition” of personal use first made its

appearance in a 1995 regulation that the FEC promulgated

pursuant to notice and comment under FECA. At the time,

FECA barred “personal use” of campaign contributions but did

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not define the term. See 2 U.S.C. § 439a (1994).1 Nor was the

term defined in the FEC’s pre-1995 regulations. 

The 1995 regulation adopted the following definition:

Personal use means any use of funds in a campaign

account of a present or former candidate to fulfill a

commitment, obligation or expense of any person that

would exist irrespective of the candidate’s campaign or

duties as a Federal officeholder.

11 C.F.R. § 113.1(g) (emphasis added). The regulation went on,

in subsection (g)(1)(i), to provide that “personal use includes but

is not limited to the use of funds in a campaign account for”

such items as clothing, tuition payments, and mortgage

payments. Id. § 113.1(g)(1)(i). Finally, in subsection (g)(1)(ii),

the regulation stated:

The Commission will determine, on a case by case

basis, whether other uses of funds in a campaign

account fulfill a commitment, obligation or expense

that would exist irrespective of the candidate’s

campaign or duties as a Federal officeholder, and

therefore are personal use. Examples of such other

uses include: (A) Legal expenses; (B) Meal expenses;

(C) Travel expenses . . . ; and (D) Vehicle

expenses . . . .

Id.§ 113.1(g)(1)(ii) (emphasis added). 

1

 FECA was moved from Title 2 of the U.S. Code to Title 52 in

September 2014. 

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Together with the 1995 regulation, the FEC published an

Explanation and Justification that described the “irrespective

definition” as follows:

If campaign funds are used for a financial obligation

that is caused by campaign activity or the activities of

an officeholder, that use is not personal use. However,

if the obligation would exist even in the absence of the

candidacy or even if the officeholder were not in

office, then the use of funds for that obligation

generally would be personal use.

Expenditures; Reports by Political Committees; Personal Use

of Campaign Funds, 60 Fed. Reg. 7862, 7863-64 (Feb. 9, 1995). 

The FEC explained that the specific expenses listed in

subsection (g)(1)(i) “would exist irrespective of the candidate’s

campaign or duties as a Federal officeholder. Therefore, the

Commission regards them as inherently personal and subject to

the personal use ban.” Id. at 7864. The rule, it said, “treats the

use of campaign funds for these expenses as per se personal

use.” Id. The Commission recognized, however, that “some

expenses that do raise personal use issues cannot be

characterized as either personal or campaign related in the

majority of situations, so they cannot be addressed in a per se

list.” Id. at 7867. Those kinds of expenses were covered by

subsection (g)(1)(ii). Under that subsection, the FEC said, it

would apply the irrespective definition on a case-by-case basis. 

Id.

The FEC listed legal expenses under subsection (g)(1)(ii) as

one of the items that required consideration on a case-by-case

basis. The Commission could not include them in the per se

personal use category, it explained, because it could foresee

several kinds of legal expenses that would not exist in the

absence of a campaign or an officeholder’s duties: for example,

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expenses that arise from complying with election laws,

employing campaign staff, or contracting with campaign

vendors. Id. at 7868. The Commission made clear, however,

that “legal expenses will not be treated as though they are

campaign or officeholder related merely because the underlying

legal proceedings have some impact on the campaign or the

officeholder’s status. Thus, legal expenses associated with a

divorce or charges of driving under the influence of alcohol will

be treated as personal, rather than campaign or officeholder

related.” Id.

Thereafter, between 1995 and 2002, the FEC addressed the

issue of legal expenses in its advisory opinions.2 Those opinions

developed what might be described as an “allegations standard”

for determining whether legal expenses are personal. The FEC

concluded that legal expenses incurred in litigation involving

allegations “arising directly from campaign activity” are not

personal, and campaign funds could be used to pay them. FEC

Advisory Opinion 1995-23 (Shays), 1995 WL 437686, at *1

(July 20, 1995) (regarding expenses to defend a civil suit

charging that Representative Shays had unlawfully taken down

his opponent’s campaign signs). By contrast, the use of

campaign contributions for legal expenses “incurred to . . .

present a legal defense to[] possible liabilities or violations of

law that are unrelated to [a] campaign or officeholder status”

2

 Under 52 U.S.C. § 30108, any person, candidate, or campaign

committee may submit a written request for an FEC opinion regarding

the application of FECA or an FEC rule or regulation to a “specific

transaction or activity.” Id. § 30108(a)(1). An advisory opinion

provides a safe harbor for “any person involved in the specific

transaction or activity with respect to which such advisory opinion is

rendered,” as well as for “any person involved in any specific

transaction or activity which is indistinguishable in all its material

aspects” from that addressed in the opinion. Id. § 30108(c). 

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would constitute the conversion of contributions for personal

use. FEC Advisory Opinion 1996-24 (Cooley), 1996 WL

419823, at *3-4 (June 27, 1996) (regarding legal expenses for

responding to a possible Department of Veterans Affairs finding

that Representative Cooley’s wife had improperly received

Veterans benefits).

In 2002, Congress expressly adopted the FEC’s irrespective

definition of personal use and added it to FECA. See Bipartisan

Campaign Reform Act of 2002, Pub. L. No. 107-155, § 301, 116

Stat. 81, 95 (codified at 2 U.S.C. § 439a and recodified at 52

U.S.C. § 30114). It also codified certain of the per se personal

use items that the FEC had listed in 11 C.F.R. § 113.1(g)(1)(i)

and added others of its own. See 52 U.S.C. § 30114(b)(2).3 It

did not, however, codify or otherwise mention the language of

11 C.F.R. § 113.1(g)(1)(ii) relating to case-by-case

consideration of other disbursements, such as legal expenses. 

That regulatory provision, as set out above, has not changed

since 1995.4

3

 Under 52 U.S.C. § 30114(b)(2), campaign funds are “converted

to personal use if . . . used to fulfill any commitment, obligation, or

expense of a person that would exist irrespective of the candidate’s

election campaign or individual’s duties as a holder of Federal office,

including -- (A) a home mortgage, rent, or utility payment; (B) a

clothing purchase; (C) a noncampaign-related automobile expense;

(D) a country club membership; (E) a vacation or other

noncampaign-related trip; (F) a household food item; (G) a tuition

payment; (H) admission to a sporting event, concert, theater, or other

form of entertainment not associated with an election campaign; and

(I) dues, fees, and other payments to a health club or recreational

facility.” 

4

 Appellants note that, in a colloquy on the Senate floor between

Senators Lieberman and Feingold, Senator Feingold stated that, “while

the provision is intended to codify the FEC’s current regulations on

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In advisory opinions issued since 2002, the FEC has

continued to apply the allegations standard for legal expenses

that it established in its earlier opinions. In its 2003 Treffinger

Advisory Opinion, for example, the FEC confirmed that in

implementing the irrespective definition, it had “previously

concluded that legal expenses in defense of allegations relating

directly to the candidate’s campaign activities or status as a

Federal officeholder may be paid for with campaign funds,” but

that “[t]he use of campaign funds to pay for [a candidate’s]

defense against allegations that are not directly related to his

campaign activity would be a conversion to personal use.” FEC

Advisory Opinion 2003-17 (Treffinger), 2003 WL 21894954, at

*3 (July 25, 2003). Applying this standard, the FEC concluded

that James Treffinger could use campaign funds to defend

against counts of a criminal indictment “comprised of

allegations of false [financial] reports made to the Commission”

during his campaign for the U.S. Senate, but that he could not

use them to defend against counts charging him with having

defrauded a New Jersey county when he served as county

executive. Id. at *4-5.

Similarly, in its Cunningham Advisory Opinion, the

Commission found that Representative Cunningham could use

campaign funds to pay legal expenses “associated with a grand

jury investigation involving allegations . . . that [he] obtained

the use of campaign funds for personal expenses, we do not intend to

codify any advisory opinion or other current interpretation of those

regulations.” 148 Cong. Rec. S2143 (Mar. 20, 2002). Whatever the

weight of such a statement, our opinion does not rely on an

assumption that Congress codified pre-2002 advisory opinions or

interpretations. As discussed below, in this case we need only defer

to those opinions to the extent of “their power to persuade,” Skidmore

v. Swift & Co., 323 U.S. 134, 140 (1944). We defer to post-2002

advisory opinions on the same basis. 

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benefits . . . from [a defense contractor] because of his status as

a U.S. Representative.” FEC Advisory Opinion 2005-11

(Cunningham), 2005 WL 2470825, at *3 (Sept. 26, 2005). It

cautioned, however, that “the use of campaign funds to pay

for . . . representation in legal proceedings regarding any

allegations that are not related to his campaign activity or duties

as a Federal officeholder would constitute an impermissible

personal use.” Id.

There is no doubt, then, that the allegations standard is the

standard the FEC has long and repeatedly applied to discern

prohibited personal use of campaign funds to pay legal

expenses.5

5 See, e.g., FEC Advisory Opinion 2009-20 (Visclosky), 2009

WL 2850351, at *1 (Aug. 28, 2009) (concluding that “the Committee

may use campaign funds to pay legal fees and expenses incurred by

Representative Visclosky’s current and former congressional staff in

connection with the Federal investigation of Representative

Visclosky[] and other legal proceedings . . . because the allegations

relate to Representative Visclosky’s campaign and duties as a Federal

officeholder,” but that “[t]he use of campaign funds to pay for any

such employee’s representation in legal proceedings regarding

allegations that are not related to Representative Visclosky’s campaign

activity or duties as a Federal officeholder . . . would constitute an

impermissible personal use”); FEC Advisory Opinion 2006-35

(Kolbe), 2007 WL 419188, at *2-3 (Jan. 26, 2007) (explaining that

legal expenses “incurred in legal proceedings involving allegations

concerning the candidate’s campaign activities or duties as a Federal

officeholder” were permissible but that contributions could not be

used for legal expenses incurred in connection with “other

allegations . . . that do not concern the candidate’s campaign activities

or duties as a Federal officeholder”); see also FEC Advisory Opinion

2011-07 (Fleischmann), 2011 WL 2163318, at *2-3 (May 26, 2011);

FEC Advisory Opinion 2009-12 (Coleman), 2009 WL 1904617, at *4-

6 (June 26, 2009); FEC Advisory Opinion 2009-10 (Visclosky), 2009

WL 1811018, at *3 (June 18, 2009).

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C 

In the case now before us, the FEC’s rationale for

concluding that Senator Craig’s legal expenditures constituted

“personal use” was set out in the analysis that accompanied the

Commission’s “reason to believe” finding. Quoting the 1995

Explanation and Justification, the analysis noted that “[l]egal

fees and expenses . . . ‘will not be treated as though they are

campaign or officeholder related merely because the underlying

proceedings have some impact on the campaign or

officeholder’s status.’” Reason to Believe Finding at 7 (J.A. 69)

(quoting 60 Fed. Reg. at 7868). For example, “‘legal expenses

associated with a divorce or charge of driving while under the

influence of alcohol will be treated as personal, rather than

campaign or officeholder related.’” Id. (quoting 60 Fed. Reg. at

7868). The underlying standard, the FEC said, is reflected in “a

long line of Advisory Opinions” in which “the Commission has

determined that legal fees and expenses incurred for

representation in legal proceedings regarding any allegations

that are not related to campaign activities or duties as a Federal

officeholder would constitute an impermissible personal use of

campaign funds.” Id. at 9-10 (J.A. 71-72) (citing FEC Advisory

Opinion 2005-11 (Cunningham), 2005 WL 2470825 (Sept. 26,

2005); FEC Advisory Opinion 1996-24 (Cooley), 1996 WL

419823 (June 27, 1996); FEC Advisory Opinion 2003-17

(Treffinger), 2003 WL 21894954 (July 25, 2003)).

The FEC found that application of the allegations standard

to Senator Craig’s expenditures was straightforward. “The

campaign funds disbursed by Craig to [his attorneys] to overturn

the conviction” on the charge of disorderly conduct, the FEC

said, were “similar to ‘legal expenses associated with a divorce

or charge of driving while under the influence of alcohol.’” Id.

at 11 (J.A. 73) (quoting 60 Fed. Reg. at 7868). Those, the FEC

said, were expenses that “would exist irrespective of the status

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of the individual as a candidate or officeholder, and so would

not be a permissible use of campaign funds . . . even if the arrest

and conviction impacted his status as a Federal officeholder.” 

Id. Accordingly, the FEC concluded, the use of campaign funds

to pay such expenses constituted a conversion to personal use in

violation of § 30114(b).

D

It is always appropriate to accord an agency’s interpretation

of its organic statute at least a measure of deference proportional

to the “‘thoroughness evident in its consideration, the validity of

its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to

persuade.’” United States v. Mead Corp., 533 U.S. 218, 228

(2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)); see, e.g., Gonzales v. Oregon, 546 U.S. 243, 268-69

(2006). Those considerations apply here. Proceeding in this

“old-fashioned way,” Miller v. Clinton, 687 F.3d 1332, 1342 &

n.11 (D.C. Cir. 2012), we are persuaded that the FEC’s is the

better reading of the statute.6

First, the FEC’s focus on the allegations of the legal

proceedings fits well with the irrespective definition embodied

in the statutory language. Examining the allegations is a natural

way to determine whether expenditures in response to such

6

 This circuit has held that FEC advisory opinions, like those

cited in the Craig “reason to believe” analysis, qualify for the level of

deference required by Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837,

843 (1984). See FEC v. Nat’l Rifle Ass’n. of Am., 254 F.3d 173, 185-

86 (D.C. Cir. 2001). The appellants do not dispute the point. See

Craig Br. 29-30. Under Chevron, we would defer to an agency’s

reasonable interpretation of ambiguous statutory language. But we do

not need to accord that level of deference to resolve this case. 

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allegations “would exist irrespective of the candidate’s election

campaign or individual’s duties as a holder of Federal office.” 

52 U.S.C. § 30114(b)(2). Allegations that are “related to

campaign activities or duties as a Federal officeholder”

necessarily would not exist if there were no campaign or if the

individual had no official duties. Allegations that are not

related, by contrast, generally would exist irrespective of a

campaign or official duties. We use the word “generally” in the

previous sentence because there is a possible exception for

unrelated allegations that a complainant levels against a

candidate or officeholder because of the target’s campaign or

official duties. We address that “alleger’s motive exception” in

Part III.A.3 below.

Second, the allegations standard evidences the kind of

thoroughness of consideration and consistency of application

that warrants deference. As the history recounted in Part II.B

reflects, the FEC is correct in saying that the allegations

standard is reflected in “a long line of Advisory Opinions” that

declare that spending campaign funds on “legal fees and

expenses incurred for representation in legal proceedings

regarding any allegations that are not related to campaign

activities or duties as a Federal officeholder would constitute an

impermissible personal use of campaign funds.” Reason to

Believe Finding at 9 (J.A. 71). 

Finally, we agree with the FEC that applying the allegations

standard to Senator Craig’s case is straightforward. The

allegations that gave rise to his guilty plea were the

misdemeanor charges for disorderly conduct and interference

with privacy that the State of Minnesota filed against him. 

Because those allegations did not concern the Senator’s

campaign activities or official duties, the legal fees he expended

trying to withdraw his plea constituted “personal use.” To put

the analysis squarely in the terms of the statute: the appellants’

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expenditures to withdraw Senator Craig’s guilty plea would

have existed irrespective of his reelection campaign or

Senatorial duties because the charges that prompted those

expenditures did not relate to that campaign or those duties. 

Accordingly, the appellants violated 52 U.S.C. § 30114(b) when

they used campaign committee funds to pay for the legal fees

incurred in pursuing withdrawal of the plea.

III

Needless to say, the appellants disagree that the legal

expenditures at issue here constituted personal use of campaign

funds. They do not dispute that the criminal allegations to

which Senator Craig pled guilty related only to his personal

conduct.7

 But they reject application of an allegations standard

to determine whether the legal expenses the Senator incurred

would have existed irrespective of his campaign activities or

official duties. A proper application of the irrespective

definition, they maintain, would give greater attention to “the

circumstances giving rise to the expenditures.” Craig Br. 28. 

Had Craig “not been a sitting U.S. Senator at the time,” they

argue, “the Minnesota incident and plea would not have been a

national media event.” Id. “Nor would the publication of such

a plea have normally engendered immediate professional

repercussions -- including congressional investigations and loss

of professional stature and authority -- for a private individual.” 

Id. Those “events reasonably relate to a campaign or official

7

 See Oral Arg. Recording 18:50-57 (acknowledgment by Senator

Craig’s counsel that the conduct that led to the Senator’s arrest “was

purely personal”); Letter from Brand Law Group to Hon. Barbara

Boxer (Sept. 5, 2007) (J.A. 179) (statement by Senator Craig’s

attorneys that his arrest was for “purely personal conduct unrelated to

the performance of official Senate duties”).

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18

duties,” they conclude, and hence “cement[] the connection

between the expenditures and his federal office.” Id. at 29.

In order to take those circumstances into account, the

appellants urge us to apply one of three alternative standards,

any one of which they believe does a better job of giving content

to the statutory irrespective definition than does the allegations

standard. We reject their urging, concluding that the FEC’s

allegations standard offers the better interpretation of the

statutory definition of personal use in the context of legal

expenses.

A

In their briefs, the appellants’ principal contention is that

the FEC itself does not customarily apply an allegations

standard, but rather “applies a ‘reasonableness’ standard to

evaluate whether expenses were incurred ‘irrespective’ of

campaign or official obligations.” Craig Br. 6. “A principled

personal use analysis,” they maintain, “must examine whether

the relevant events reasonably relate to a campaign or official

duties.” Id. at 29 (emphasis added). In their view, “Senator

Craig’s legal expenses are reasonably related to his position

because, absent the publication of his plea and the resulting

media coverage, Senator Craig would never have filed an appeal

of that plea.” Id. at 21. 

1. In support of their claim that the FEC has historically

applied such a “reasonableness standard,” the appellants take

three steps. First, they point to the following statement from the

1995 Explanation and Justification: “[C]andidates have wide

discretion over the use of campaign funds. If the candidate can

reasonably show that the expenses at issue resulted from

campaign or officeholder activities, the Commission will not

consider the use to be personal use.” Craig Br. 6 (quoting 60

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19

Fed. Reg. at 7867 (emphasis added by appellants)); see id. at 26. 

Second, substituting their own words for portions of this

statement, the appellants say it means that, “‘[i]f the candidate

can reasonably show that expenses at issue’ pertain to

officeholder duties, ‘the Commission will not consider them to

be personal use.’” Id. at 26 (quoting 60 Fed. Reg. at 7867)

(principal insertion italicized). Finally, with a further

substitution, appellants maintain that all that is required is that

“Senator Craig’s legal expenses were reasonably related to his

duties.” Id. at 27 (internal quotation marks omitted) (insertion

italicized).

In response, the FEC protests that it does not apply a

reasonableness standard in deciding whether the expenditure of

campaign contributions was for personal use. Rather, the

statement the appellants quote from the Explanation and

Justification merely reflects the evidentiary burden -- a

reasonable showing -- required to establish that the use was not

personal. That burden, however, does not alter the underlying

statutory definition of personal use. The appellants “ha[ve]

simply . . . conflat[ed] an officeholder’s evidentiary burden with

the actual legal standard.” FEC Br. 24.

Careful attention to the three steps of the appellants’

argument makes clear that the FEC is correct. The first step, the

text of the Explanation and Justification itself, supports the

FEC’s position that “reasonably show” merely describes a

standard of proof: the candidate must “reasonably show that the

expenses at issue resulted from campaign or officeholder

activities.” 60 Fed. Reg. at 7867. At the same time, the text’s

“resulted from” language reflects the causal nature of the

irrespective definition.8

 The appellants’ second step, however,

8 See also 60 Fed. Reg. at 7863-64 (“If campaign funds are used

for a financial obligation that is caused by campaign activity or the

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20

substitutes “pertain[s] to” for the FEC’s “resulted from,” thus

eliminating the causal requirement. Finally, the appellants’ last

step completes the transformation, changing “reasonably show”

to “reasonably related to,” thus converting a standard of proof

of causation into a non-causal relationship standard.9 In short,

the appellants’ proffered standard is inconsistent with both the

1995 Explanation and Justification and the statutory text, both

of which contemplate a causal relationship between expenses

and campaigns or official duties.

2. The appellants also maintain that there is support for

their proposed reasonableness standard in § 113.1(g)(1)(ii) of

the FEC’s personal use regulation. As discussed above, that

provision states that “[t]he Commission will determine, on a

case-by-case basis,” whether expenses that are not on the per se

personal list -- including legal (and, e.g., travel) expenses --

“would exist irrespective of the candidate’s campaign or duties

as a Federal officeholder, and therefore are personal use.” 11

C.F.R. § 113.1(g)(1)(ii); see id. § 113.1(g)(1)(ii)(A), (C). The

appellants insist this must mean that the FEC will decide the

nature of each legal expense through “a case-by-case analysis of

[the] candidate’s or official’s rationale,” Reply Br. 1, and that

the FEC erred by “categorically” treating “all legal expenditures

stemming from personal conduct” as expenditures for personal

use, Craig Br. 25.

activities of an officeholder, that use is not personal use.” (emphasis

added)).

9

 While the allegations standard discussed in Part II.B above does

invoke the term “relate[d] to,” it does so in a different relational

context. The allegations standard allows use of campaign funds for

expenses resulting from allegations related to a campaign or

officeholder duties -- thus maintaining the causal relationship in the

statutory definition that appellants’ proposed alternative would

discard.

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21

But that is not what “case-by-case” must mean. Nothing in

that adjectival phrase precludes the Commission from

delineating personal and nonpersonal categories of legal

expenses in the common law tradition -- as individual cases

come to its attention in the form of complaints or requests for

advisory opinions. In this sense, case-by-case merely means

that the FEC does not regard all categories of legal (or travel)

expenses as per se personal -- as it does all categories of home

mortgage and clothing expenditures -- but rather that it will

decide which categories are personal when presented with actual

cases. 

And that is precisely how the Commission has treated the

issue in its advisory opinions. For example, in 1995 the FEC

advised that family travel to participate in campaign activities is

not personal; family vacation travel, however, is. See FEC

Advisory Opinion 1995-20 (Roemer), 1995 WL 437687, at *2

(June 30, 1995).10 Similarly, twenty years of advisory opinions

have concluded that legal expenditures made in response to

charges of campaign or official misconduct are not personal;

expenditures to rebut allegations of personal misconduct are. 

See supra Part II.B (describing and citing those advisory

opinions).

3. The appellants further maintain that their

“reasonableness” (more accurately, their “reasonably related”)

standard is reflected in three kinds of FEC advisory opinions, all

of which have “acknowledged that members of Congress are

subject to heightened public and media scrutiny.” Craig Br. 7. 

10 When Congress amended FECA in 2002 to include a definition

of personal use, it codified this categorization. See 52 U.S.C.

§ 30114(b)(2)(E) (including, in the list of per se personal uses, the use

of campaign contributions for “a vacation or other noncampaignrelated trip”). 

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22

“Senator Craig’s use of campaign funds for legal expenses,”

they say, “is analogous to the expenditures sanctioned by the

FEC in” those cases. Id. at 29. We disagree.

We begin with the Miller Advisory Opinion. See FEC

Advisory Opinion 2013-11 (Miller), 2013 WL 6022101 (Oct.

31, 2013). There, the FEC approved a Senate candidate’s

expenditure of campaign funds to oppose a state court lawsuit

brought by media outlets seeking access to personnel records

from the candidate’s previous job as a municipal employee. 

Although the opinion did not mention any allegations regarding

campaign activities, it did note that the plaintiffs “asserted in

their civil complaints that the disclosure of these records was

necessary for the Alaska electorate to be able to fully, fairly, and

timely consider matters relevant to Mr. Miller’s candidacy” for

the U.S. Senate. Id. at *3 (internal quotation marks omitted). 

That made clear, the FEC said, that the lawsuit “was directly and

explicitly related to Miller’s candidacy and would not have

existed irrespective of his campaign.” Id. This wording may

suggest that the FEC contemplates an “alleger’s motive

exception” to the allegations standard for litigation expenses,

although the Miller Advisory Opinion appears to be the only one

to suggest such a possibility.11 

11 The appellants contend that the Vitter Advisory Opinion is a

second opinion of the same kind. See FEC Advisory Opinion 2008-07

(Vitter), 2008 WL 4265321, at *3 (Sept. 9, 2008). But the relevant

section of that opinion says nothing more than that “[t]he Commission

could not approve a response by the required four affirmative votes

with regard to” Senator Vitter’s request to use campaign funds to pay

for legal expenses incurred in an effort to quash subpoenas for

information related to the Senator’s alleged personal conduct. Id. at

*2, *4. The appellants nonetheless maintain that a draft opinion by

FEC staff shows that some commissioners would have allowed

Senator Vitter to use campaign contributions for such legal expenses

because the issuer of the subpoena had singled him out due to his

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23

We need not pass on the validity of such an exception

today. The appellants do not contend that Minnesota brought

the disorderly conduct charge against Senator Craig because of

his official position. See Oral Arg. Recording 10:05-13

(agreeing that the Senator was not “targeted” for arrest). To the

contrary, the arresting officer did not even know that Craig was

a Senator until after the arrest, when Craig showed the officer

his business card and asked, “[w]hat do you think of that?” 

Police Narrative (June 11, 2007) (J.A. 204).

The appellants also proffer, as analogous, FEC advisory

opinions that authorize the use of campaign contributions to

respond to media inquiries. The FEC has permitted such

expenditures even when the inquiries do not relate to campaigns

or officeholder duties.12 In the Kerrey Advisory Opinion, for

example, the FEC authorized the use of campaign funds to

respond to media inquiries regarding former Senator Robert

Kerrey’s activities during the Vietnam War because those

inquiries “would not have occurred if Mr. Kerrey had not been

a prominent Senator and prominent Federal candidate” for

President. FEC Advisory Opinion 2001-09 (Kerrey), 2001 WL

844352, at *4 (July 17, 2001). Similarly, the Hilliard Advisory

Opinion explained:

status as a Senator. Craig Br. 10 (citing Draft FEC Advisory Opinion

2008-07 (Vitter), Doc. No. 08-20-A (Aug. 20, 2008)). But there is no

evidence that any of the commissioners adopted the reasoning

reflected in the draft, and the final opinion makes clear that the FEC

could not reach a conclusion on the matter. 

12 See, e.g., FEC Advisory Opinion 2008-07 (Vitter), 2008 WL

4265321, at *4 & n.2 (Sept. 9, 2008); FEC Advisory Opinion 2001-09

(Kerrey), 2001 WL 844352, at *3-4 (July 17, 2001); FEC Advisory

Opinion 1998-1 (Hilliard), 1998 WL 108618, at *4 (Feb. 27, 1998). 

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24

The Commission [has] recognized . . . that the

activities of candidates and officeholders may receive

heightened scrutiny and attention in the news media

because of their status as candidates and officeholders. 

It [has] stated that the obvious need for a candidate to

respond to allegations that result from this elevated

scrutiny would not exist irrespective of the candidate’s

campaign or officeholder status.

FEC Advisory Opinion 1998-1 (Hilliard), 1998 WL 108618, at

*4 (Feb. 27, 1998) (emphasis added) (citations omitted).

The media advisory opinions may suggest a kind of

“inquirer’s motive exception” for responding to press

inquiries -- analogous to the “alleger’s motive exception”

suggested by the Miller Advisory Opinion. But again, we need

not pass on the validity of such an exception because the FEC

did not charge the appellants with violating FECA by using

campaign funds to respond to press inquiries regarding Senator

Craig’s guilty plea. See FEC Compl. ¶¶ 26, 33 (J.A. 59-60). 

Thus, whatever room there may be for applying an inquirer’s

motive exception in some cases, the application of such an

exception is not relevant here.

Finally, the appellants argue that their proposed

reasonableness standard is consistent with FEC advisory

opinions that authorize the use of campaign contributions to pay

legal expenses incurred in connection with Senate Ethics

Committee investigations. As with media inquiries, the FEC has

authorized the use of campaign contributions in such

circumstances, even for investigations involving Senators’

purely personal conduct.13 But the FEC did not need any kind

13 See, e.g., FEC Advisory Opinion 2008-07 (Vitter), 2008 WL

4265321, at *3 (Sept. 9, 2008); FEC Advisory Opinion 2006-35

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25

of interpretive standard to help it apply FECA’s irrespective

definition to those situations. Because the Senate Ethics

Committee has jurisdiction only over individuals who are

Senators (or congressional officers or employees), a Senator’s

legal expenses in such an investigation could not have existed

irrespective of his official duties -- regardless of whether the

conduct at issue was personal or official. Consistent with this

understanding, the FEC did not object to the appellants’

expenditures for responding to the Ethics Committee inquiry in

this case. See FEC Compl. ¶ 26 (J.A. 59).

B

The appellants’ opening brief hints, if cryptically, at a

second alternative standard that they believe justifies the use of

campaign funds to pay Senator Craig’s legal expenses: “the

impetus for expending committee funds.” Craig Br. 25. Their

reply brief expands on this alternative, contending that some

advisory opinions have “assessed an individual’s motivation

for . . . committee expenditures” and permitted them if the

individual’s -- that is, the candidate’s or officeholder’s --

motives related to his campaign or duties. Reply Br. 12. 

This alternative might be described as yet another motive

exception to the allegations standard. But unlike the possible

motive exceptions discussed in Part III.A, this exception would

not look to the motive of the person who made the allegations or

press inquiries, but rather to the motive of the candidate or

officeholder who spent the campaign funds to respond to those

allegations or inquiries. As applied to the facts of this case, the

appellants’ argument is that Craig’s “decis[ion] to challenge

(Kolbe), 2007 WL 419188, at *2 (Jan. 26, 2007); FEC Advisory

Opinion 1998-1 (Hilliard), 1998 WL 108618, at *5 (Feb. 27, 1998). 

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26

[his] plea” was part of “an effort to remain in office and make

his reelection viable.” Reply Br. 16. In that sense, they suggest,

the legal expenses would not have existed irrespective of his

office.

There is no support for such an “officeholder’s motive

standard” in any of the advisory opinions that the appellants cite. 

Those opinions are the same ones that we discussed in Part

III.A, and that, as we have already explained, at most provide

some support for taking into account the motive of the

officeholder’s accuser or inquirer. None of them focus on the

officeholder’s motive for spending money to answer those

accusations or inquiries. 

More important, a standard that looks to the officeholder’s

motive is inconsistent with the statutory scheme. As we have

noted, 52 U.S.C. § 30114(b)(2) contains a specific list of

expenses that Congress regarded as existing irrespective of a

candidate’s campaign or an officeholder’s duties, including

home mortgage payments, clothing purchases, and tuition

payments. Id. § 30114(b)(2)(A), (B), (G); see supra note 3. 

Yet, if an officeholder’s motive to “make his reelection viable,”

Reply Br. 16, were relevant to the statutory analysis, it is hard to

see why Congress would have placed those kinds of

expenditures off limits. Surely there are members of Congress

who regard owning homes in their districts, improving the

quality of their clothing, or obtaining advanced degrees as

necessary to increase their electoral chances. Because

Congress’ examples leave no room for consideration of a

candidate’s motive, neither does the general ban. Cf. Samantar

v. Yousuf, 130 S. Ct. 2278, 2287-88 (2010); Cal. Indep. Sys.

Operator Corp. v. FERC, 372 F.3d 395, 400 (D.C. Cir. 2004).

An officeholder’s motive standard is also inconsistent with

the FEC’s 1995 Explanation and Justification, which listed two

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27

paradigmatic examples of legal expenses that “will be treated as

personal, rather than campaign or officeholder related”: “legal

expenses associated with a divorce or charges of driving under

the influence of alcohol.” 60 Fed. Reg. at 7868. Subsequent

advisory opinions have repeatedly cited those examples.14 Yet

surely a Senator could regard a defense against messy divorce

or DUI allegations as no less necessary to “an effort to remain

in office and make his reelection viable” than Senator Craig’s

attempt to withdraw his guilty plea. Indeed, it is hard to imagine

any kind of criminal (or even controversial civil) matter for

which such a claim could not be made. In short, grafting an

officeholder’s motive standard onto the statutory definition of

personal use would swallow the definition whole, rendering

nonpersonal virtually any use of campaign funds for legal

expenses. And that plainly could not have been Congress’ intent

in drafting § 30114(b)(2).15

14 See, e.g., FEC Advisory Opinion 2013-11 (Miller), 2013 WL

6022101, at *3 (Oct. 31, 2013); FEC Advisory Opinion 2011-07

(Fleischmann), 2011 WL 2163318, at *2 (May 26, 2011); FEC

Advisory Opinion 2009-12 (Coleman), 2009 WL 1904617, at *4 (June

26, 2009); FEC Advisory Opinion 2008-07 (Vitter), 2008 WL

4265321, at *3 (Sept. 9, 2008).

15 The appellants repeatedly emphasize that Senator Craig did not

appeal his plea until after it was publicized. But their suggestion that

this makes his expenditures different from those he might have made

had he challenged the plea before the charges became public is

unpersuasive. Given the level of media scrutiny of public officials,

any legal allegation of personal wrongdoing will rarely remain secret

for long, rendering the line the appellants have attempted to draw

ephemeral. In any event, the appellants’ rationale for drawing a line

at the publication of the Senator’s plea ultimately rests on the

Senator’s motive for seeking its withdrawal: his “hop[e] that he could

seek election in Idaho for an additional six-year term in the United

States Senate.” Reply Br. 16 (internal quotation marks omitted). For

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28

C

Finally, the appellants’ reply brief hints at yet a third

standard: “an elected official’s status [may] prompt[] increased

legal costs for what would normally be a personal matter,”

which could “justif[y] paying for those increased costs with

campaign committee funds.” Reply Br. 18 (emphasis added). 

At oral argument, this hint became the appellants’ principal

proposed standard, which they christened the “delta standard”: 

an officeholder or candidate, they argued, should be able to use

campaign funds to pay the difference (the delta) between the

amount the candidate or officeholder actually spent on legal

expenses and the amount a reasonable person without that status

would have spent. In the appellants’ view, because “no

reasonable person” would have spent nearly $200,000 to attack

a misdemeanor plea, those expenditures by the Craig Committee

did not constitute personal use. See Oral Arg. Recording 7:00-

12, 13:06-17.

As our precedents make clear, a party cannot preserve an

appellate issue by hinting at it in a reply brief and pressing it at

oral argument.16 Accordingly, the appellants have forfeited their

challenge to the district court’s judgment on the basis of their

proposed delta standard. 

the reasons stated above, we conclude that such an officeholder’s

motive standard is unwarranted.

16 See, e.g., Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 108

n.4 (D.C. Cir. 2003); Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50

n.4 (D.C. Cir. 1990); see also Republic of Argentina v. NML Capital,

Ltd., 134 S. Ct. 2250, 2255 n.2 (2014) (“We will not revive a forfeited

argument simply because the petitioner gestures toward it in its reply

brief.”). 

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29

Even if it were not forfeited, however, the proposed delta

standard would be unwarranted. There is no support for it in

any FEC advisory opinion.17 Nor is it workable. We struggle to

imagine how the Commission or a court could calculate the

“delta” between what a particular member of Congress spent on

a given legal expense and what a “reasonable” non-member

would have found sufficient.18

More important, like the officeholder’s motive standard

discussed in Part III.B (of which the delta standard is really only

a marginal cost variant), the delta standard is inconsistent with

the statutory scheme. If Congress had intended the application

of a delta standard, it is hard to see why it would have wholly

barred the use of campaign funds for expenses like home

mortgages and clothing purchases. 52 U.S.C. § 30114(b)(2)(A),

(B). Surely some members of Congress buy two homes as a

consequence of their position -- one in Washington and one in

their district -- when a reasonable member of the general public

17 The appellants claim to derive the delta standard from a draft

advisory opinion in the Vitter matter. As we have noted, there is no

evidence that any individual commissioner embraced that draft’s

reasoning, and the Commission itself did not adopt the draft. See

supra note 11. Because the draft opinion does not represent the views

of the Commission, the appellants acknowledge that it does not

warrant any deference from this court. Oral Arg. Recording 16:22-31.

18 We asked at oral argument, for example, how a court could

determine what a “reasonable” non-member would spend to resist a

divorce he or she did not want. The appellants’ only response was that

the FEC would have to conduct a “case-by-case” analysis. Oral Arg.

Recording 17:50-56.

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30

would not. And surely some members spend more on their

clothing than would an ordinary citizen.19 

Similarly, a delta standard is inconsistent with the two

paradigmatic examples of personal legal expenses for which no

campaign funds may be spent: “legal expenses associated with

a divorce or charges of driving under the influence of alcohol.” 

60 Fed. Reg. at 7868. Once again, surely there are officeholders

who would spend more than an ordinary person to defend such

cases, which might well destroy a political career but not one in

the private sector. And because there is no principled way to

distinguish divorce or DUI cases from most other litigation

(including misdemeanor disorderly conduct cases), a delta

standard would not only swallow those examples but would

authorize the payment of at least partial expenses in virtually

any litigation involving personal conduct.

In sum, even were it not forfeited, we would reject the

appellants’ proposed delta standard as both unworkable and

inconsistent with the statutory and regulatory schemes.

D

For the foregoing reasons, we conclude that the FEC’s

allegations standard -- and not the appellants’ proposed

“reasonableness,” “officeholder’s motive,” or “delta”

standard -- offers the better interpretation of the statutory

definition of personal use. And because the criminal allegations

19 We also note that the appellants’ focus on whether the “elected

official’s status has increased the costs relating to a personal matter,”

Reply Br. 18 (emphasis added), appears inconsistent with the statute,

which focuses on the “individual’s duties as a holder of Federal

office,” 52 U.S.C. § 30114(b)(2) (emphasis added). We acknowledge,

however, that the FEC frequently uses the terms interchangeably.

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31

against Senator Craig were not related to his campaign activity

or official duties, we conclude that the appellants’ use of

campaign funds to pay the expenses of fighting those allegations

violated 52 U.S.C. § 30114(b).20 

IV

FECA grants district courts broad authority to fashion

remedies for violations of the statute. “[U]pon a proper showing

that the person involved has committed, or is about to

commit . . . , a violation of [the] Act,” FECA authorizes the

court to “grant a permanent or temporary injunction, restraining

order, or other order, including a civil penalty which does not

exceed the greater of $5,000 or an amount equal to any

contribution or expenditure involved in such violation.” 52

U.S.C. § 30109(a)(6)(b). In this case, the district court ordered

Senator Craig to disgorge to the U.S. Treasury the full amount

of funds converted to personal use (amounting, by the court’s

calculation, to $197,535). It further ordered him to pay a

$45,000 civil penalty. 

The appellants challenge both the disgorgement and the

civil penalty orders. We review both orders for abuse of

discretion. See SEC v. Whittemore, 659 F.3d 1, 9 (D.C. Cir.

2011); AFL-CIO v. FEC, 628 F.2d 97, 100 (D.C. Cir. 1980). We

will find that the district court abused its discretion only “if it

did not apply the correct legal standard . . . or if it

misapprehended the underlying substantive law.” Kickapoo

Tribe of Indians v. Babbitt, 43 F.3d 1491, 1496 (D.C. Cir. 1995). 

20 In the district court, the appellants argued that Senator Craig’s

legal expenses were related to his officeholder duties because he was

on official travel back to Washington at the time of his arrest. The

district court rejected that argument, Craig for U.S. Senate, 933 F.

Supp. 2d at 118, and the appellants do not renew it on appeal.

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We address the disgorgement order in Part IV.A and the civil

penalty order in Part IV.B.

A

The district court determined that a “disgorgement order

[wa]s necessary to avoid the unjust enrichment of Senator Craig,

and to ‘deprive the wrongdoer of his ill-gotten gain.’” Craig for

U.S. Senate, 70 F. Supp. 3d at 97 (quoting SEC v. Bilzerian, 29

F.3d 689, 697 (D.C. Cir. 1994)). It ordered the Senator to

disgorge the funds he unlawfully converted to personal use and

directed that he pay them to the Treasury, rather than to the

Craig Committee, explaining that “the Craig Committee [wa]s

essentially defunct” and had become “little more than an alterego for Senator Craig himself.” Id. at 101.21 Moreover, the

court said, were the Craig Committee to receive the disgorged

funds, then “sole[] responsib[ility] for the proper disposition of

the funds” would be placed in the hands of the same person who

had misused them in the first place, since by that time Senator

Craig had appointed himself Treasurer (and sole staff member)

of the Craig Committee. Id.

The appellants do not dispute the district court’s authority

to order the remedy of disgorgement. Oral Arg. Recording

19:24-35. Instead, they challenge the court’s specific order on

a number of grounds, all ultimately resting on the fact that the

court ordered disgorgement to the Treasury rather than to the

Craig Committee. Id. Their challenges are not persuasive.

21 The court noted that “Senator Craig has no plans to run for

office again[;] he is the Committee’s only staff member[;] . . . [and]

the Craig Committee has essentially no money.” Craig for U.S.

Senate, 70 F. Supp. 3d at 101.

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First, the appellants insist that the court’s order “does not

actually effect disgorgement because it fails to return the funds

to the committee.” Craig Br. 33. “Disgorgement,” they

contend, “is an equitable remedy that aims to restore the status

quo,” and directing the money to the Treasury rather than

returning it to the Committee does not achieve that aim. Craig

Br. 21. But as this court has said before, “[t]he primary purpose

of disgorgement is not to refund others for losses suffered but

rather ‘to deprive the wrongdoer of his ill-gotten gain.’” 

Bilzerian, 29 F.3d at 697 (emphasis added) (quoting SEC v.

Blatt, 583 F.2d 1325, 1335 (5th Cir. 1978)). Following that

principle, courts of appeals have often affirmed the propriety of

directing disgorged funds to the U.S. Treasury. See, e.g., United

States v. Cavanagh, 445 F.3d 105, 117 (2d Cir. 2006) (“Upon

awarding disgorgement, a district court may exercise its

discretion to direct the money toward victim compensation or to

the United States Treasury.”).22 Moreover, FECA does not even

speak of “disgorgement” orders, but rather of “other” orders,

which would give the district court some leeway even if there

were not substantial precedent for directing disgorgement to the

Treasury.

Second, the appellants contend that the order “functions as

a penalty rather than disgorgement.” Craig Br. 32

(capitalization omitted). In directing payment to the Treasury,

they argue, “the order seeks to punish Senator Craig for his

conduct by preventing him from using these funds for a

permissible purpose.” Id. at 33; see id. at 32-33 (citing SEC v.

First City Fin. Corp., 890 F.2d 1215, 1231 (D.C. Cir. 1989)

(stating that “disgorgement may not be used punitively”)). But

22 See also, e.g., Official Comm. of Unsecured Creditors of

WorldCom, Inc. v. SEC, 467 F.3d 73, 81 (2d Cir. 2006); SEC v.

Fischbach Corp., 133 F.3d 170, 175-76 (2d Cir. 1997); FTC v. Febre,

128 F.3d 530, 537 (7th Cir. 1997).

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34

as we have just noted, it is not uncommon for remedial

disgorgement orders to direct funds to the Treasury. Moreover,

the district court’s rationale made clear that its intention was not

punitive: the court did not direct the funds to the Treasury to

punish Senator Craig, but rather to ensure that they were not

returned to the person who had misused them.

Third, the appellants argue that the FEC’s customary

practice, in the context of administrative conciliation agreements

to resolve personal use violations, is to require disgorgement of

funds to campaign committees. See Craig Br. 38-39. Although

this accurately describes the conciliation agreements cited by the

appellants, the FEC explains that those cases involved refunds

to committees with treasurers who had not themselves spent

campaign funds for their personal use, as well as committees

that “could have spent refunded amounts on later campaigns.” 

FEC Br. 38-39. And in any event, the resolution of matters

under the FECA subsection that authorizes the Commission to

“attempt . . . to correct or prevent such violation[s] by informal

methods of conference, conciliation, and persuasion,” 52 U.S.C.

§ 30109(a)(4)(A)(i), does not constrain a district court acting

pursuant to § 30109(a)(6)(B).

Finally, the appellants assert that, by sending the disgorged

funds to the Treasury, the district court violated the First

Amendment rights of Senator Craig, the Craig Committee, and

the Committee’s donors. The only cases they cite in support are

Buckley v. Valeo, 424 U.S. 1 (1976), and McCutcheon v. FEC,

134 S. Ct. 1434 (2014), which stand for the propositions that

campaign contributions can constitute protected speech and that

restrictions on such contributions can violate the First

Amendment under certain circumstances. But the disgorgement

order is not a campaign finance restriction, and it does not limit

donors’ campaign contributions. The court’s order does no

more than enforce the obligation of a campaign committee to

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35

follow laws that are unrelated to the restriction of free

expression. A campaign committee that violates occupational

safety or wage and hour laws can be required to pay for such

wrongdoing, notwithstanding that the payment ultimately comes

from campaign contributions. If the contributors’ original intent

has thereby been thwarted, they have the campaign committee --

not the court -- to blame. 

We therefore conclude that the district court did not abuse

its discretion in ordering Senator Craig to disgorge $197,535 to

the U.S. Treasury. 

B

The district court further determined “that a penalty over

and above the disgorgement is also appropriate given the

seriousness of the violation here.” Craig for U.S. Senate, 70 F.

Supp. 3d at 97. It ordered Senator Craig to pay a $45,000 civil

penalty -- roughly $155,000 less than the statutory maximum

(the amount of the unlawful expenditure) and $25,000 less than

the amount requested by the FEC. Noting that “[t]he assessment

of [a] civil penalt[y] is discretionary,” the appellants maintain

that the district court should not have assessed a penalty at all. 

Craig Br. 42 (internal quotation marks omitted). They offer four

reasons. Again, none is persuasive.

First, the appellants maintain that “disgorging $197,535

would constitute a harsh penalty in itself.” Id. As we have

explained, however, the disgorgement order did not punish

Senator Craig, but rather deprived him of his improper gains. 

Indeed, as the district court noted, imposing a lower civil penalty

would “threaten[] to become something equivalent to interest on

a loan payment for the immediate use of campaign funds.”

Craig for U.S. Senate, 70 F. Supp. 3d at 100 (quoting Hr’g Tr.

at 16). And assessing no penalty at all would have been

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36

equivalent to giving Senator Craig the benefit of an interest-free

loan.

Second, the appellants note that Senator Craig suffered

“severe professional and personal consequences” as a result of

his arrest for disorderly conduct. Craig Br. 42. That is no doubt

true, but those were not the consequences of any liability

flowing from his FECA violation. The court did not abuse its

discretion in concluding that a penalty for that violation was in

order.

Third, the appellants argue that “the personal use standards

developed by the FEC are ambiguous at best,” and that it was

“unreasonable to punish Senator Craig for failing to accurately

discern the appropriate standards.” Id. at 43. As we discussed

in Part II, however, the FEC has applied the allegations standard

to determine personal use for two decades, and there is no

dispute that the criminal allegations leveled against the Senator

had no relation to his campaign or official duties.23 Moreover,

if the appellants had any lingering doubts regarding the

appropriate standard, the statute gave them the right to request

an advisory opinion “with respect to [the] specific

transaction[s].” 52 U.S.C. § 30108(a)(1); see supra note 2. 

Instead, as the district court noted, the appellants “decided to

forego what would have been a significant demonstration of

good faith and declined to request an advisory opinion from the

FEC.” Craig for U.S. Senate, 70 F. Supp. 3d at 99.

23 See Craig for U.S. Senate, 70 F. Supp. 3d at 88-89 (finding that

the defendants “disregard[ed] clear admonitory language in the

advisory opinion on which they relied most heavily” (internal

quotation marks omitted) (citing FEC Advisory Opinion 2006-35

(Kolbe), 2007 WL 419188 (Jan. 26, 2007))).

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37

Finally, the appellants complain that “the defendant’s state

of mind is a key consideration” in evaluating whether a civil

penalty is warranted, and that in this case Senator Craig “relied

in good faith on the advice of counsel and would not have made

the committee expenditure had he not received authorization

from counsel.” Craig Br. 43-44. But the district court did take

the defendants’ “reli[ance] on the advice of counsel” into

consideration, Craig for U.S. Senate, 70 F. Supp. 3d at 99,

notwithstanding an interrogatory answer that expressly waived

such reliance, First Set of Interrogs. at No. 5 (J.A. 166).24 The

court’s conclusion that such reliance did not outweigh the other

factors that counseled imposition of a penalty, Craig for U.S.

Senate, 70 F. Supp. 3d at 99, did not constitute an abuse of

discretion.

V

For the foregoing reasons, we conclude that the district

court did not err in finding that the appellants unlawfully

converted campaign contributions to personal use by spending

them on Senator Craig’s effort to withdraw his guilty plea. Nor

did the court abuse its discretion by ordering the Senator to

disgorge $197,535 to the United States Treasury and pay a civil

penalty of $45,000. Accordingly, the judgment and remedial

orders of the district court are

Affirmed.

24 See First Set of Interrogs. at No. 5 (J.A. 166) (stating, in

response to a query as to whether reliance on advice of counsel

“should be a factor in the Court’s decision regarding remedies in this

case,” that the “Defendants do not claim reliance upon advice of

counsel”). 

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