Can a candidate running for office in Virginia use campaign funds to pay for childcare while campaigning?

Subject

A candidate may use campaign funds for childcare expenses if those expenses are the direct result of campaign activity and would not exist irrespective of the campaign.

Plain-English summary

Eleven Virginia legislators (including Senator Jennifer McClellan, Senator Jill Vogel, and several House delegates) asked whether Virginia law lets a candidate pay for childcare with campaign funds. The question matters because parents (especially women) considering a run for office routinely face an out-of-pocket cost that opponents without children do not. If the campaign cannot pick up the tab, the field tilts.

Virginia's Campaign Finance Disclosure Act of 2006 (Title 24.2, Chapter 9.3) defines "expenditure" as money or other things of value disbursed by a campaign "for the purpose of expressly advocating the election or defeat of a clearly identified candidate." It does not list childcare. It also does not list food, gas, or printing. Lists in the statute are not exhaustive.

The Attorney General said the test is the same one the Federal Election Commission has used and that several other states use: a childcare expense is a legitimate campaign expenditure if it is a direct result of campaign activity and would not exist but for the campaign. Childcare needed because the candidate is attending a campaign event or knocking on doors fits. Childcare the candidate would pay for anyway (a regular daycare slot, weekend sitter for personal events) does not.

What this means for you

For candidates and campaign treasurers

The opinion holds that childcare is a permissible campaign "expenditure" under § 24.2-945.1 when it is the direct result of campaign activity and would not exist irrespective of the campaign. It holds that childcare a candidate would incur regardless of the campaign (for a job, errands, or personal time) is personal use, not a permissible expenditure. The standard mirrors FEC Advisory Opinions 2018-06 and 2019-13.

For first-time candidates considering a run

The opinion holds that event-related childcare incurred because of campaign activity is a campaign expense under Virginia law, not solely a personal cost, so long as it would not exist but for the campaign.

For voters, journalists, and watchdogs

The opinion holds that a childcare expenditure is permissible only when it is tied to campaign activity and would not exist irrespective of the campaign; recurring or personal childcare paid by the campaign falls outside that test. The opinion is the AG's reading of existing law, persuasive rather than binding.

For the Virginia Department of Elections

The opinion holds that the existing Campaign Finance Disclosure Act of 2006 already permits campaign-activity childcare as an "expenditure"; it does not call for a rule change and addresses only the statutory definition in § 24.2-945.1.

Common questions

Are all childcare costs a candidate has during a campaign reimbursable from campaign funds?
No. Only the ones that are a "direct result of campaign activity" and would not have existed but for the campaign. Regular ongoing childcare for a candidate's day job or personal life is not.

How does a childcare expense qualify as a campaign expenditure?
Under the opinion, it must be the direct result of campaign activity and would not exist irrespective of the campaign, so it ties to a specific campaign activity rather than to the candidate's ordinary life. The opinion sets that substantive test; it does not prescribe particular recordkeeping.

Did Virginia change the law to allow this?
No. The AG read the existing Campaign Finance Disclosure Act of 2006 to permit it. The statute's definition of "expenditure" already covers anything paid to advocate the election or defeat of a candidate. Childcare meets the definition when it is a direct cost of campaigning.

What if my opponent uses campaign funds for childcare and I don't have children?
That's not unfair under Virginia law. The statute treats childcare as a campaign cost only when it is incurred because of campaign activity. The same way a candidate who needs transportation can buy gas with campaign funds, a candidate who needs a sitter to attend a debate can pay a sitter with campaign funds.

Does this opinion apply to federal candidates?
No. Federal candidates are governed by the Federal Election Campaign Act and FEC rules. The AG noted that the FEC reached the same conclusion in Advisory Opinions 2018-06 and 2019-13, but federal candidates should follow federal guidance.

What about converting campaign funds to "personal use"?
Virginia campaign finance law and the AG's opinion both treat childcare for personal purposes (errands, dates, personal time) as personal use, which is not a permissible expenditure. The whole test rests on the expense being tied to campaign activity.

Background and statutory framework

The relevant statute is Va. Code § 24.2-945.1, which defines "expenditure" for purposes of Virginia campaign finance reporting. The definition is broad and not exhaustive. Courts apply the plain language of a statute unless ambiguous or absurd, per Boynton v. Kilgore, 271 Va. 220 (2006).

The Attorney General leaned on the parallel federal analysis. The FEC has held (Advisory Op. 2018-06 and 2019-13) that childcare expenses are permissible campaign expenditures to the extent they are the direct result of campaign activity. Several state ethics or campaign finance bodies (Alabama, Arkansas, Kansas, Louisiana, Maryland, Texas, Wisconsin) have reached the same conclusion. The Virginia AG joined that consensus.

The framing in the opinion: childcare is "no different from paying for services such as those of campaign staff," because without it, a candidate with a young child would not be able to actually campaign. The Attorney General was careful to note this opinion does not say anything broader about what counts as "campaigning" beyond what the statute already provides.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 24.2-945.1 (definition of "expenditure")
• Title 24.2, Chapter 9.3 (Campaign Finance Disclosure Act of 2006)
• Boynton v. Kilgore, 271 Va. 220 (2006)
• FEC Advisory Op. 2018-06; FEC Advisory Op. 2019-13
• Ala. Ethics Comm'n, No. 2018-04; Ark. Ethics Comm'n, No. 2018-EC-001; Kan. Governmental Ethics Comm'n, Op. No. 2018-04; La. Bd. of Ethics, Docket No. 2018-1210; Md. State Bd. of Elections (May 16, 2019); Tex. Ethics Comm'n, Advisory Op. No. 547; Wis. Ethics Comm'n, Op. No. 2018 ETH 01

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-022-McClellan-et-al-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120

September 10, 2021

The Honorable Jennifer L. McClellan, Member, Senate of Virginia; The Honorable Marcus B. Simon, Member, House of Delegates; The Honorable Kathy K.L. Tran, Member, House of Delegates; The Honorable Jill H. Vogel, Member, Senate of Virginia; The Honorable Scott A. Surovell, Member, Senate of Virginia; The Honorable Joseph D. Morrissey, Member, Senate of Virginia; The Honorable Patrick A. Hope, Member, House of Delegates; The Honorable Mark L. Keam, Member, House of Delegates; The Honorable Alfonso H. Lopez, Member, House of Delegates; The Honorable Jeffrey M. Bourne, Member, House of Delegates; The Honorable Rodney T. Willett, Member, House of Delegates.

Dear Senators McClellan, Morrissey, Surovell, and Vogel and Delegates Bourne, Hope, Keam, Lopez, Simon, Tran, and Willett:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You request an opinion as to whether current law fully allows the use of campaign funds for childcare expenses.

Applicable Law and Discussion

The applicable election law is found at Chapter 9.3 of Title 24.2 of the Code of Virginia, the Campaign Finance Disclosure Act of 2006. As the title suggests, the emphasis in these statutory provisions is on disclosure of "expenditures."

Under that Chapter, an "expenditure" is defined as,

[M]oney and services of any amount, and any other thing of value, paid, loaned, provided, or in any other way disbursed by any candidate, campaign committee, political committee, or person for the purpose of expressly advocating the election or defeat of a clearly identified candidate or by any inaugural committee for the purpose of defraying the costs of the inauguration of a Governor, Lieutenant Governor, or Attorney General.

Pursuant to § 24.2-945.1, expenditures under Virginia campaign finance law are those expenses incurred for "the purpose of expressly advocating the election or defeat of a clearly identified candidate" (hereinafter "campaigning"). The Code does not directly address childcare expenses, nor does it include an exhaustive list of allowed expenditures. Courts will "apply the plain language of a statute unless the terms are ambiguous or applying the plain language would lead to an absurd result." In my opinion, childcare expenses that would not exist irrespective of the candidate's campaign are expenditures under § 24.2-945.1.

Several states with similar campaign finance statutes have authorized the use of campaign funds to cover the cost of childcare expenses that are the direct result of campaigning. Additionally, the Federal Elections Commission (FEC) has issued two advisory opinions addressing the same issue. The FEC concluded in both advisory opinions that a candidate may use campaign funds to pay for childcare expenses to the extent the expenses were the "direct result of campaign activity" and would, therefore, "not exist irrespective of [the requestor's] campaign."

Virginia's campaign finance statutes allow for the use of campaign funds for childcare expenses if those expenses are the direct result of campaign activity. Such an expense is no different from paying for services such as those of campaign staff because without it, the individual would be prevented from expressly advocating for their election to elected office and for the defeat of their opponent.

Conclusion

For the reasons stated above, a candidate may use campaign funds for childcare expenses if those expenses are the direct result of campaign activity and would not exist irrespective of the campaign.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General