August 22, 2018
Opinion No. 2018-04
If childcare expenses would not exist
irrespective of the candidacy for public office, and those expenses have a
direct connection with or effect upon the campaign of the candidate, then they
may be paid with campaign funds.
herein: K.S.A. 2017 Supp. 25-4157a, 52 U.S.C. § 30114(a), (b); 11 C.F.R. §§
TO ALL INTERESTED PERSONS:
to K.S.A. 25-4159, the Kansas Governmental Ethics Commission issues this
opinion regarding expenditure of campaign
funds for childcare expenses.
general, candidates subject to the requirements of the Kansas Campaign Finance
Act may have personal situations affected by a campaign. Paid childcare may be
a necessary accommodation for campaigning candidates and officeholders. May
campaign funds be used to pay for childcare?
use of campaign funds is provided in K.S.A. 25-4157a(a) which provides:
No moneys received by any candidate or candidate committee of
any candidate as a contribution under this act shall be used or be made
available for the personal use of the candidate and no such moneys shall be
used by such candidate or the candidate committee of such candidate except for
legitimate campaign purposes, for expenses of holding political office or for
contributions to the party committees of the political party of which such
candidate is a member.
For the purposes of this section, expenditures for “personal
use” shall include expenditures to defray normal living expenses for the
candidate or the candidate’s family and expenditures for the personal benefit
of the candidate having no direct connection with or effect upon the campaign
of the candidate or the holding of public office.
Opinion No. 96-16, we stated:
To be a
permissible use of campaign funds, an expenditure must be for a legitimate
purpose, an expense of holding political office or a contribution to a party
committee. In order to be a “legitimate
campaign purpose or an expense of holding political office”, the expenditure
must have a “direct connection with or effect upon the campaign of the
candidate or the holding of public office”. All other expenditures are for
personal use, and thus are prohibited. [emphasis added]
the same opinion we provided non-exhaustive lists of permissible and
non-permissible uses of campaign funds. For uses of campaign funds not listed, we determine, on a case-by-case basis,
whether a use is permitted.
Federal Election Commission (FEC) recently considered the same issue. In FEC Advisory
Opinion 2018-06, dated May 10, 2018, a Congressional candidate, prior to
becoming a candidate, worked at home as a consultant while caring for her young
children full time. Her husband worked full time. Since becoming a candidate,
she has forgone income from her work and hired a part-time care-giver for her
children so that she could fulfill responsibilities as a federal candidate. The
candidate anticipates full-time care for her children as well as additional
childcare support on evenings and weekends will be necessary so that she can
devote the time necessary to run her campaign.
relevant federal law is similar to Kansas law in that expenditures of campaign
funds must be for (1) a listed permissible use, or a use determined to be
permissible on a case-by-case basis, and (2) specific purposes, including
“ordinary and necessary expenses incurred in connection with duties of the
individual as a holder of [f]ederal office,” and “any other lawful purpose”
(i.e., not a personal use). See 52 U.S.C. § 30114(a), (b); 11 C.F.R. §§ 113.1,
113.2. “Personal use” is use of campaign funds “to fulfill any commitment,
obligation, or expense of a person that would exist irrespective of the
candidate’s election campaign or duties as a federal office holder.” 52 U.S.C.
§30114(b)(2); 11 C.F.R. § 113.1(g). The FEC concluded that the described childcare
expenses, to the extent such expenses are incurred as a direct result of
campaign activity, would not exist irrespective of the election campaign, and
thus may be paid with campaign funds.
highlight this key distinction drawn in the FEC opinion, which we view as an
important consideration when interpreting whether a direct connection with, or
effect upon the campaign exists under K.S.A. 25-4157a(a), we provide this
example: if a candidate typically pays for childcare before becoming a
candidate, this would not be a permissible expense for use of campaign funds
after becoming a candidate. However, if additional childcare is needed because
of the new campaign’s demands upon the candidate, the increase in expenses
would be a permissible use of campaign funds, but not those existing prior to
becoming a candidate.
to defray normal living expenses for the candidate or the candidate’s family
are personal. So are expenditures for personal benefit having no direct
connection with or effect upon the campaign of the candidate or holding of
public office. However, if childcare expenses would not exist irrespective of the
candidacy for public office, then such expenses would have a direct connection
with or effect upon the campaign of the candidate. In circumstances where facts
demonstrate such a nexus between constraints imposed by a campaign or holding
office, and childcare, we opine use of campaign funds to pay for childcare
expenses is permitted.
closing, the Commission suggests that candidates and office holders seek
guidance from the Commission’s staff prior to using any campaign fund for
expenses that may be considered questionable. Nothing in this opinion precludes
a candidate or office holder from using their own personal funds for the
payment of childcare expenses.
taking a similar stance on childcare expenses as the FEC concluded in Advisory
Opinion 2018-06, we opine campaign funds may be used for childcare expenses if (1)
the need for childcare would not exist irrespective of the candidacy for public
office and (2) the expenses have a direct connection with or effect upon the
campaign of the candidate.
Daniel Harden, Chairman
Direction of the Commission