MIAMI – Mark Foley faces an ongoing FBI investigation into whether he committed crimes by sending sexually explicit Internet messages to minors, but the disgraced former congressman 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 even be able to tap that pot of money to hire public relations experts to respond to the press.

Foley abruptly quit Congress and abandoned his reelection campaign on Sept. 29, after being confronted by ABC News with graphic electronic messages he’d sent to teenage congressional pages. 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 ultimately depend on how the Federal Election Commission 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 like 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.”

The FEC reiterated its position last year in an advisory opinion issued in the case of former congressman Randy “Duke” Cunningham, a California Republican now doing time for taking bribes from defense contractors.

That opinion said Cunningham’s campaign committee could use its accumulated contributions to pay legal fees and other expenses – including the costs of dealing with the media – arising from the criminal investigation.

The reason: The probe involved his duties as a congressman, and he would not have incurred those expenses if he hadn’t been a member of Congress.

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 to 2000.

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

Noble said Foley would likely argue that his communications with the teenage pages were part of his duties as a member of Congress. Would the FEC buy such an argument?

“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.

Others who might end up using the law to tap their campaign funds to pay their legal bills include Speaker J. Dennis Hastert, who’s expected to be front and center in the House Ethics Committee’s investigation into the handling of the Foley case.

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

Since the start of the year, Friends of Mark Foley has earned nearly $100,000 in interest, according to the most recent report filed by campaign treasurer Donna Winterson, who is also Foley’s sister.

The campaign also stands to collect thousands of dollars via a special joint fundraising committee that was formed by Foley and a dozen other Republican members of Congress less than two weeks before the scandal broke.

The committee, Physicians to Retain Our Majority, or PROM, aimed to raise money from doctors, and its registered participants from Florida, besides Foley, were Rep. Clay Shaw of Fort Lauderdale, Rep. Ric Keller of Orlando and Rep. Cliff Stearns of Silver Springs.

The Foley campaign has not yet filed a disclosure report for that period, and none is due until Oct. 15.

But on Sept. 26, three days before Foley quit, PROM held a “PROM Night” fundraiser at B. Smith’s Restaurant in Union Station, near the Capitol. The guest of honor was U.S. Rep. Nathan Deal, a Georgia Republican and chairman of the Health subcommittee of the House Energy and Commerce Committee.

Tom Hammond, a professional fundraiser for Republican causes in Alexandria, Va., organized the event. He did not respond to phone and email messages seeking comment.

PROM also held a fundraiser in late August or early September, according to Wilder. Wilder could not recall the details, but said less than $50,000 was raised. He said equal shares were sent to each of the participating congressmen, including Shaw and Foley.


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