On January 20, 2009, the New Jersey Election Law Enforcement Commission (ELEC) is going to formally propose rule making clarifying the rules regarding the expenditure of campaign funds on legal fees.
Clearly, in light of more sophisticated campaigning and the rules governing the same, the expenditure of campaign funds on legal fees is permissible in many circumstances, but not all. The involvement of lawyers to provide guidance on ballot access issues, campaign finance, on election day and in recounts or election contests is commonplace in the post Bush v. Gore environment.
This proposal would explicitly exclude the use of campaign funds for legal fees and expenses relating to the "criminal defense of a candidate or officeholder, including defense in a criminal inquiry or criminal investigation, and defense of a criminal indictment or other criminal proceeding."
This rule making arises from now-convicted former New Jersey State Senator Wayne Bryant's advisory opinion request filed in January 2008, in which ELEC held that the use of campaign funds for legal fees and other expenses in connection with Bryant's defense of a criminal indictment, is not an “ordinary and necessary expense” of an officeholder and therefore is not a permissible use of campaign funds. On December 4, 2008, ELEC's advisory opinion was affirmed by the Appellate Division. See In Re Election Law Enforcement Commission Advisory Opinion No. 01-2008 (A-2816-07T1).
What About Others Who Spent Campaign Funds On Legal Fees for Their Criminal Defense? According to the Star-Ledger: Former state Sen. and Newark Mayor Sharpe James (D-Essex) and former Sen. Joseph Coniglio (D-Bergen) did not ask for ELEC approval when they dipped into their own campaign accounts to fight corruption charges. ELEC has not filed complaints against James or Coniglio. Frederick Hermann, ELEC's executive director, said today he could not comment on either case. But he said ELEC will "review the decision in terms of possible future commission action."
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