By Matthew Boyle, Breitbart News, May 22, 2014
Sen. Thad Cochran’s longtime executive assistant, Kay Webber, frequently rents the first floor of the stately Capitol Hill house she owns as a venue for fundraisers, including to Cochran’s campaign.
But a high-profile conservative attorney and a leading congressional watchdog say the fact Webber works for Cochran, and that Cochran lives in the house, present a series of thorny legal questions that could land the two in hot water.
“Because she is his staffer and because he lives at the same address as she does and where the events were held, then there are laws and rules that do govern what happens and how things can and cannot be paid for – and clearly these people have made no attempt to sort that out to be sure not to violate anything,” said Cleta Mitchell, a lawyer at Foley and Lardner who is representing the Tea Party Patriots Citizens Fund, said.
Sunlight Foundation editorial director Bill Allison said the situation is highly unusual.
“I can’t think of a relationship between a member of Congress and a staffer that’s quite like this,” Allison said. “It’s almost like a tangled knot. You don’t know quite where to begin—there’s the taxpayer-funded travel, there’s the fundraising questions, there’s how she rents him this apartment in this house close to Capitol Hill where they have fundraisers. For a senator to have so many connections to somebody who is ostensibly his employee it’s definitely something worth looking into. Every time you publish something new, it’s like you wonder: Is there a next shoe that’s going to drop?”
Two lawyers for Cochran, William McGinley and Don McGahn of Patton Boggs, adamantly contested Mitchell’s assessments of the relevant laws. “This is perfectly legal,” McGahn, a former chairman of the Federal Election Commission, said.
At issue are two separate legal restrictions, one governing the political activities of congressional aides and the other the use of a candidate’s home for campaign events.
Federal law prohibits congressional aides, whose salaries are paid by taxpayers, from donating to their employer’s campaigns, providing free services or other “in kind” donations, or even fronting expenses for the campaign other than for their own personal travel.
Separately, federal law prohibits campaigns from paying costs associated with their candidate’s home address; all such costs must be paid personally by the candidate, reported as an in-kind contribution to the campaign.
As previously reported by Breitbart News, Cochran has repeatedly listed the house owned by Webber as his primary address on official forms, including several statements of candidacy to the Federal Election Commission. Cochran’s campaign says he lives in a basement apartment at the address with its own separate entrance.
In December 2012, Cochran’s campaign hosted a fundraiser at the house, charging $500 per person and $1000 per political action committee, according to an invitation for the event published by the Sunlight Foundation.
A year later, the campaign held another fundraiser there, charging donors $1000 to attend, $2600 to be a personal sponsor, and $5000 for a PAC to attend. “MS Delegation and All Republican Senators will be invited,” the invitation, published by the Sunlight Foundation, said.
In both instances, Cochran’s campaign said Webber was reimbursed for use of the house by Brandon Winfrey, a fundraiser who organizes such events. Webber was paid $850 for the 2012 event and $1,250 for the 2013 event, Cochran’s spokesman, Jordan Russell, said.
The two restrictions create a legal minefield for Cochran and Webber’s situation that Mitchell and Allison say is troublesome.
First, according to Mitchell, Webber’s use of her home for Cochran is an in-kind contribution, even if she is reimbursed. “She’s been advancing—she’s not like any other commercial vendor that can wait to be paid,” Mitchell said. “Between that time you advance the cost, and the time you are paid, it is an in kind contribution.”
“I’ll give you an example — let’s say my client company, and I’ve had to set these up, wants to have a fundraising event for senator so-and-so, they want to host a fundraising event,” Mitchell explained. “I tell them their PAC has to pay these costs in advance and that’s reported as an in-kind from the PAC. It has to come from a permissible source. I don’t care if it’s $500 or $100. I tell Senate campaign staffers they can’t go out and buy nine dollars worth of poster board then get reimbursed by the campaign—the campaign has to pay for it because that’s what the law says. In this case, I don’t care if she gets reimbursed at a later date: Between the time you advance costs and the time you get paid, that is a contribution.”
In addition, Mitchell said Cochran’s campaign cannot legally pay for campaign costs at his house. “You have a situation here where because it’s his residence too, the campaign is not supposed to pay money for campaign costs involving the candidate’s residence,” Mitchell said, noting that such activity became illegal under the McCain-Feingold campaign finance laws. “The candidate personally has to pay because that is deemed to be a personal use of campaign funds to pay for anything at their residence,” Mitchell said.
“It’s a pile of legal spaghetti that they’ve created by their interwoven relationship: landlord, staffer, travel companion,” Mitchell added.
McGahn said the use of Webber’s house, for which she was later reimbursed, did not comprise an “in kind” donation or fronting resources to the campaign in a manner that violates the law. “That’s flat wrong,” McGahn said when presented with Mitchell’s argument. “It’s not an in-kind contribution.”
McGinley said federal law (2 U.S. Code § 431) exempts certain things of value as being considered a donation – including, in his view, the rental of Webber’s house for a fundraiser for her employer. Other examples of exempted categories include the use of a church or community room used regularly for noncommercial purposes or the costs of invitations, food and beverages provided by a volunteer for an event at the volunteer’s home.
McGahn and McGinley separately argued that the house Webber rents as a venue is not Cochran’s residence because he pays rent for use of the basement as his apartment. McGinley compared the situation to someone who holds a political event in their apartment that just happens to be located in the same building as Cochran’s apartment.
“The rental space does not cover the room where the event occurred,” he said.
In at least one instance, Cochran listed the street number of his address as “218-A,” seeming to indicate the address of a basement apartment. But in many other cases, Cochran listed the street number for the house itself, “218,” on a series of official forms as his primary residence.
Additionally, Webber has not filed a Certificate of Occupancy with the D.C. Department of Consumer and Regulatory Affairs (DCRA) alerting the city government that she is renting out space in her home commercially, according to a check of the agency’s records this week by Breitbart News.
“In most cases, no person can use a building, structure or land in the District of Columbia for any purpose other than a single family dwelling until a valid C of O has been issued,” the DCRA government website states.
Allison says beyond the law, the situation is morally complicated.
“A member of Congress should not be using a staffer to be raising funds,” Allison added. “It’s definitely something that the Ethics Committee should take a look at. It’s definitely something that the FEC should take a look at.”
Federal law (18 U.S.C § 603) states that: “It shall be unlawful for an officer or employee of the United States or any department or agency thereof, or a person receiving any salary or compensation for services from money derived from the Treasury of the United States, to make any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 to any other such officer, employee or person or to any Senator or Representative in, or Delegate or Resident Commissioner to, the Congress, if the person receiving such contribution is the employer or employing authority of the person making the contribution. Any person who violates this section shall be fined under this title or imprisoned not more than three years, or both.”
The Senate Ethics Committee’s website explains that Senate staffers “may not make a political contribution to his or her employing Senator’s campaign. Accordingly, a Senate employee may not purchase a ticket to a campaign fundraising event for his or her employing Senator. Nor may the employee advance funds for campaign purchases, even if the campaign will reimburse the individual. The only exception to this rule is for outlays by an employee for the individual’s own personal travel expenses incurred on behalf of the campaign.”
Renting her house to other campaigns – the house has been host to many fundraisers for both Republicans and Democrats – is permissible under the law, Mitchell and Allison said.
Webber began working for Cochran in 1981 and has the title executive assistant. Breitbart News recently reported that she accompanied Cochran on 33 taxpayer-funded to 42 countries since 2002.
Rumors about the relationship between Cochran and Webber exploded into public view recently when a crazed blogger was arrested last week for photographing Cochran’s wife, Rose Cochran, at her residence at a retirement home in Madison, MS. The blogger, Clayton Kelly, wanted to take rumors that Cochran and Webber are having an affair into the mainstream, Kelly’s wife said after he was arrested. Cochran’s wife is reported to be suffering from severe dementia and resides at a retirement home. His campaign has previously said questions about the nature of Cochran’s and Webber’s relationship are “silly gossip.”