Foley may be able to use campaign funds to pay for legal defense

MIAMI — Former U.S. Rep. Mark Foley faces an FBI investigation into whether he committed crimes by sending sexually explicit Internet messages to minors, but he may not have to worry about where he'll get the money to defend himself.

Federal law allows Foley to use his $2.7 million campaign war chest to pay any legal fees he incurs that are related to his status as a member of Congress.

Under the law, Foley might be able to tap that pot of money to hire public-relations experts to respond to the media.

Foley quit Congress and abandoned his re-election campaign Sept. 29. But his principal campaign committee, Lake Worth, Fla.-based Friends of Mark Foley, remains active and brimming with cash.

Whether Foley will be able to spend his contributors' donations on defense lawyers and publicists will depend on how the Federal Election Commission (FEC) interprets U.S. election law. But in a half-dozen legal opinions since 1995, commissioners have interpreted broadly the ability of candidates to use campaign funds to pay legal fees.

The Federal Election Campaign Act of 1971 forbids candidates from converting campaign contributions to pay for personal expenses such as clothing, food, utility bills and mortgages. But legal fees can be different, if, as the FEC has ruled, they relate to a candidate's campaign activities or "duties as a federal officeholder."

In Foley's case, "The question is: Was the sending of the e-mails and the instant messages part of Foley's duties as an officeholder?" said Lawrence Noble, a Washington lawyer who was general counsel to the FEC from 1987-2000.

West Palm Beach criminal defense attorney David Roth, who has been Foley's spokesman, did not return messages seeking comment.

Noble said Foley would likely argue that his communications with the teens were part of his duties as a member of Congress.

"The FEC tends to give a relatively wide berth to members in terms of deciding how to use campaign funds. However, it's not unlimited," Noble said.

Foley can't legally raise funds because he's no longer a candidate. But his campaign account continues to swell.