Pilot Counsel

Flying the campaign trail

April 1, 1996

It is that time again when election campaigning brings up the usual questions about the law governing the use of private aircraft in federal elections. Many candidates and political committees have discovered that the speed and flexibility of private aircraft are especially suited to campaigning in most parts of the country. And, of course, flying the candidate on the campaign trail is a time- honored political activity in which many AOPA members participate.

The questions put to AOPA suggest that some members are misled by Federal Aviation Regulation 91.321, "Carriage of Candidates in Federal Elections." After all, if you are looking for legal guidance on using your aircraft to help a candidate to campaign, what more natural place is there to look than the FARs? And that ambitious title — "Carriage of Candidates in Federal Elections" — reinforces the notion that FAR 91.321 tells you what you need to know.

But that is wrong: FAR 91.321 is remarkable more for what it does not say than for what it does say.

The easiest way to explain the law is to ignore FAR 91.321 for the time being and to focus on the law that governs campaign financing for federal elections — the Federal Election Campaign Act. This act affects flying the political candidate in two important ways. It limits the amount an individual may contribute and expend toward a federal election campaign, and it prohibits contributions and expenditures by any corporation or labor organization. Contributions may take a form other than money. And, providing a candidate with transportation in a private aircraft could involve expenses chargeable against these contribution limitations.

Let's take the easy part first. The value of services as a pilot, provided without compensation by an individual who volunteers on behalf of a candidate or political committee, does not count against these limits.

Now to the more complicated part. There are two sets of limits for expenditures and contributions that apply to the cost of the aircraft. The first set allows payments for travel expenses to be excluded from the definition of political contributions (so that the payments do not count toward the limits on political contributions). The act specifically excludes from the definition of contribution "any unreimbursed payment for transportation expenses incurred by any individual on behalf of any candidate of any political committee of a political party...to the extent that: the aggregate value of the payments made by such individual on behalf of a candidate does not exceed $1,000 with respect to a single election; and on behalf of all political committees of each political party, does not exceed $2,000 in any calendar year." These "unreimbursed payments" could include such things as the rental cost of a private aircraft or the direct operating costs of an owned aircraft, such as gas, oil, landing and parking fees, and the like.

The next set of limits applies to "contributions" by individuals. To the extent that an individual exceeds the above limits, the unreimbursed payments for the aircraft travel will be considered to be political contributions.

These individual political contributions are subject to various limits. A person may not contribute more than $1,000 to any single candidate per election, or more than $20,000 to the political committee of a national party in any calendar year, or more than $5,000 to any other political committee in any calendar year. Additionally, there is an overall limitation that no individual may make contributions totaling more than $25,000 in any calendar year.

So, under the federal elections laws, an aircraft owner or pilot may provide transportation to a political candidate or committee and have it not considered as a political contribution within certain limits. And, if he exceeds the limits on amounts not considered to be political contributions, he may apply the individual contribution limits.

With that background, it is easier to understand the FARs. Let us look at FAR 91.321. Notice that it does not apply to an individual who, in flying the candidate, stays within these limits. In fact, it says nothing about these concerns. If we read FAR 91.321 without understanding that an individual may provide private air transportation as exempt travel expenses or as a political contribution, the regulation can be very misleading.

What FAR 91.321 does address and does accomplish is to legitimize, principally for corporations and labor organizations, what otherwise would be unlawful.

Remember, a corporation or a labor organization cannot contribute toward a federal election campaign. Federal Election Commission rules state that when a candidate, candidate's agent, or person traveling on behalf of a candidate uses an airplane that is owned or leased by a corporation or labor organization, he must reimburse the aircraft operator. Reimbursement takes it out of the realm of a political contribution.

But reimbursement causes another problem. The FARs prohibit a private (non-commercial) aircraft owner or operator from receiving compensation, even if it is only reimbursement for the actual cost of operation of the aircraft.

So, to legitimize this type of operation, FAR 91.321 provides generally that "an aircraft operator...may receive payment for the carriage of a candidate in a federal election, an agent of the candidate, or a person traveling on behalf of the candidate," provided that three conditions are met.

The first condition is that the operator's primary business is not as an air carrier or a commercial operator. The second condition is that the carriage is conducted under FAR Part 91. The third condition is that "the payment for carriage is required, and does not exceed the amount required to be paid, by the regulations of the Federal Election Commission."

As we have seen, payment is required if the transportation is provided by a corporation or a labor organization. Arguably it is also required if an individual has exceeded his contribution limitations, though this question does not seem to have been authoritatively answered. In other words, the question is: May an individual who has exceeded both limits (the $1,000/$2,000 limits excluded from the definition of "contribution" and the "contribution" limits) be reimbursed for providing transportation in a private aircraft to a political candidate or committee under FAR 91.321? In 1980, the FAA issued a legal interpretation that suggests that the answer is no. But this legal interpretation did not deal with an individual who had exceeded the limits, and the wording of the FEC and FAA regulations at least allows the argument that the answer should be yes.

Reimbursements to corporations or labor organizations must be in advance and must be at specified rates. For travel to a city with regularly scheduled commercial service, reimbursement must be the first-class airfare. For travel to a city not provided with regularly scheduled commercial service, reimbursement must be at the charter rate.

This law presents an interesting situation with respect to a flying club that is incorporated. An individual member may use a club aircraft to transport a candidate. His volunteer services as a pilot do not count as a contribution — but that may be academic. Because the club is incorporated, it must be reimbursed for the use of the aircraft, and according to a Federal Election Commission advisory opinion, the above conditions apply.

Except for the situation of an incorporated flying club, the two generic limitations on an individual general aviation pilot and aircraft owner providing transportation to candidates and political committees are pretty generous. Any confusion about the law governing the use of private aircraft in federal elections (because of FAR 91.321) should not discourage any AOPA member. Do it! Take advantage of the law that allows you to participate in federal election campaigns. If you have any doubts, contact the Federal Election Commission, 999 E Street N.W., Washington, D.C. 20463, for an advisory opinion.