Hoosier political candidates can use donations for child care, election officials say

INDIANAPOLIS (INDIANA CAPITAL CHRONICLE) — Political candidates in Indiana can use campaign contributions to pay for child care expenses incurred while campaigning or in office, according to Hoosier election officials.

Indiana’s the 31st state to make that determination.

A recent advisory opinion came in response to a request from two state lawmakers seeking clarification on campaign finance laws.

Rep. Victoria Garcia Wilburn, D-Fishers, told the Capital Chronicle she made the request because finding after-school, evening and weekend care for her then-9-year-old son while campaigning in 2022 was challenging.

“Who’s going to watch him while mom’s canvassing? When I have these night events, we need a sitter. When I can’t get out of obligations and events that don’t wrap up by 3 p.m., what’s going to happen after school?” she told the Capital Chronicle.

Disabled or sick dependents, like elderly parents in need of care, were also a concern.

Garcia Wilburn said she wanted to “remove barriers” for other “everyday families” that want to serve in elected office. She and Sen. Andrea Hunley, D-Indianapolis, asked the Indiana Election Commission to weigh in through a December 19 letter.

The request briefly split the bipartisan, four-member body over whether the clarification erred too close to policymaking, and has reignited debates over the gray area between personal and campaign expenses.

A topic for the General Assembly?

There’s precedent for such a move.

The Federal Election Commission has issued advisory opinions that campaign funds can go toward child care costs that directly result from campaign activities.

Indiana’s campaign finance laws generally bar candidates and their campaigns from spending contributions for “primarily personal” purposes, but do say candidates can use funds to “defray any expense reasonably related” to campaigning or service in elected office.

“It lets these folks here, sitting in front of us, go ahead and make that expenditure for child care. They’ve got a little bit of cover because they can say they acted in good faith,” said Indiana Election Commissioner Karen Celestino-Horseman, a Democrat, at a February 27 meeting.

Chair Paul Okeson, a Republican, pushed back.

“It feels like this should be a legislative matter and codified by lawmakers,” he said.

Garcia Wilburn previously told him she and Hunley chose an administrative rather than legislative route because this year’s session is a short one — just two months — and because, she said, the commission had the authority to do it.

Commission proponents echoed that argument.

“This was asking us to provide an interpretation of what the existing statute says — which, of course, we do all the time,” Vice-Chair Suzannah Wilson Overholt, a Democrat said.

Okeson maintained that the issue was “ripe for legislative clarity.”

He agreed to a narrower advisory opinion allowing only child care costs, in line with the FEC; the request pushed to allow for broader “caregiving” expenses, including for dependents with disabilities or medical conditions.

The commission also chose to end its advisory opinion by “respectfully recommending” legislators codify the clarification into law, in part to allay Okeson’s concerns.

Indiana Election Division Co-General Counsel Valerie Warycha, a Republican, noted that the commission issued a similar advisory opinion in 2001, clarifying that candidates could take a salary from campaign contributions. That also included an invitation for lawmakers to weigh in.

“That’s not been codified,” Warycha noted.

Celestino-Horseman added that if lawmakers don’t like the opinion, they can outlaw its conclusion.

Law’s ‘fuzzy edges’

Garcia Wilburn said she was content with the results of the request, despite the narrower definition taken up by the commission.

“When you always try to hit it out of the park, you’re still satisfied when you get a double,” she said.

Still, she called herself part of a “sandwich” generation — having elementary aged children and octogenarian parents.

One experts says a clear division between laws that both forbid personal spending with campaign dollars and allow candidates to defray the costs of campaigning can be difficult to make.

Indiana University Professor Emeritus Marjorie Hershey, a political science expert, considered the commission’s decision to allow for child care but not something like nursing home care “inconsistent.”

“But on the other hand, (commissioners) could easily say, ‘Well, where do you draw the line?’ I mean, what do you do about a spouse who just doesn’t feel like taking care of the children?” she asked.

The dilemma goes beyond caregiving.

Secretary of State Diego Morales made headlines when, as a candidate, his campaign spent $40,000 in campaign funds on a car. He defended the move, arguing that he was criss-crossing the state in the car in the process of campaigning in all 92 counties.

“If a candidate has to have a car in order to get to speaking engagements, and he or she also uses that car for personal use …, is that a personal expense or is that a campaign expense?” Hershey said, not referring to Morales specifically.

Some candidates have taken to putting notes in their contribution requests, she noted. Former President Donald Trump’s campaign noted in 2020, for example, that half of any contribution would go toward retiring general election debt, USA Today reported.

Generally, however, vague laws are made more specific in case law. That requires a possible violation, and someone filing suit in response.

“There are fuzzy edges to these definitions. And there are always going to be those fuzzy edges,” Hershey concluded. “And most of the time, people do manage to bend the law quite a bit simply because nobody objects to it.”