U.S. Rep. Pete Visclosky, D-1st, may use campaign funds to pay legal fees and expenses incurred in connection with an ongoing federal investigation, according to a draft advisory opinion issued on June 11 by the Federal Election Commission (FEC).

On May 29 Visclosky announced that, earlier in the month, the U.S. Department of Justice has served grand-jury subpoenas to his two campaign committees, his Congressional office in Washington, D.C., and Merrillville, and to certain unnamed staffers. Visclosky told the Chesterton Tribune at the time that the subpoenas request documents related to The PMA Group, a defunct lobbying firm reportedly under investigation by the FBI and whose associates and clients have donated hundreds of thousands of dollars to Visclosky’s campaign committees.

In its advisory opinion, the FEC stated that campaign funds may be used to defray legal costs associated with the investigation “because the allegations relate to Representative Visclosky’s campaign and duties as a Federal officeholder, and the legal fees and expenses would not exist irrespective of Representative Visclosky’s campaign or duties as a Federal officeholder.”

In short, the test applied by the FEC is this one: whether the legal proceedings relate to Visclosky’s political activities and official duties as a federal officeholder. If they do, then Visclosky may use campaign funds to defray their costs.

If, on the other hand, the legal proceedings relate to some personal issue, unconnected to his political activities and official duties, Visclosky may not use campaign funds to defray their cost. “The use of campaign funds to pay for Representative Visclosky’s representation in legal proceedings regarding allegations that are not related to his campaign activity or duties as a Federal officeholder, however, would constitute an impermissible use,” the FEC said.

The FEC did note, though, “that because many of the details of the Federal investigation are not public at this time, it is possible that portions of the investigation could involve allegations not related to Representative Visclosky’s campaign or his duties as a Federal officeholder.” The use of campaign funds to defray the cost of legal proceedings in that case would be an impermissible use, the FEC said.

Michael Malczewski, treasurer of the Visclosky for Congress Committee, originally asked the FEC on March 21 to issue an advisory opinion as to the legality of Visclosky’s use of campaign funds to defray legal costs associated with the investigation.

In his letter to the FEC, Malczewski cited five separate media reports on The PMA Group--published by the Chesterton Tribune on Feb. 13, ABC News on Feb. 9, The New York Times on Feb. 11, the Wall Street Journal on Feb. 11, and the Chicago Tribune on March 2--and stated that these “media reports insinuate that certain aspects of the investigation appear to relate to Congressman Visclosky’s duties as a candidate for federal office and would not exist irrespective of those duties.”

Of the story published on Feb. 13 by the Chesterton Tribune Malczewski said this: “On Feb. 13, 2009, the Chesterton Tribune reported that the PMA Group was under federal investigation. The article further alleged that the firm had ‘close connections’ to Congressman Visclosky and described campaign contributions that PMA and its clients had allegedly made to Congressman Visclosky and earmarks that Congressman Visclosky allegedly requested that benefited PMA clients.”

Malczewski filed his March 21 request for an advisory opinion from the FEC more than a month before the U.S. Department of Justice served subpoenas on Visclosky’s campaign committees, Congressional office, and certain staffers.

Visclosky told the Chesterton Tribune on May 29 that he has retained the services of the Washington, D.C. law firm, Steptoe & Johnson, in the matter of the federal investigation, and that the firm will make the decision as to which documents subpoenaed by the U.S. Department of Justice “are appropriate to turn over” and which are privileged under the Speed and Debate Clause of the U.S. Constitution.

Since 1989 PMA specialized in representing high-tech businesses and securing for its clients federal contracts or earmarks, some of them secured by Visclosky. Contributors identified as PMA associates have also donated more than $150,000 to Visclosky’s campaign committees since 2001, while contributors identified as associates of PMA clients have donated hundreds of thousands of dollars more.

Data compiled by Taxpayers for Common Sense and the Center for Responsive Politics show that in Fiscal Year 2008 Visclosky secured 16 earmarks totaling $23,800,000 for PMA clients. Eight of those nine PMA clients, the recipients of nine separate earmarks totaling $12.6 million, have contributed a total of $343,599 to Visclosky’s campaign committees over the last five election cycles.

Under current House Ethics Committee rules, members may accept campaign donations from donors for whom they have secured earmarks, on the ground that members have no financial interest in those campaign contributions.

In February Visclosky announced that he would return $18,000 in contributions made over the last two election cycles by three men listed in FEC records as PMA associates but who in fact appear to have had no genuine affiliation at all with PMA.

In March Visclosky confirmed media reports that a former chief of his staff, Rich Kaelen--who worked for Visclosky over a seven-month period in 2003--had subsequently been in the employ of PMA.

In April Visclosky announced that in the Fiscal Year 2010 appropriations bill he would seek no earmarks for any for-profit entity. “There is a controversy that has attached to PMA, and I want to be focused on the problems we are trying to solve in Northwest Indiana,” the Associated Press quoted him at the time. “So this year, we are simply not going to request money for any for-profit firms, no matter who those requests come from.”

Posted 6/17/2009