In What May Be the Second Year of the Woman, It’s Time to Ensure Childcare is Considered a Campaign Expense in State-Level Races Too

Photo Credit: The New York Observer, https://observer.com/2018/05/liuba-grechen-shirley-childcare-campaign-funds/

By: Creighton Boggs

With less than forty-five days remaining until the midterm elections, political pundits continue to speculate that this may be the second “Year of the Woman.”[1] The first “Year of the Woman” was in 1992, when forty-seven women were elected to the House of Representatives and four women were elected to the Senate.[2] This is typically characterized as a backlash to the Senate Judiciary Committee’s treatment of Anita Hill and the eventual confirmation of Clarence Thomas in 1991.[3] In light of the recent allegations against Supreme Court nominee Brett Kavanaugh, the comparisons seem even more appropriate.[4]

The majority of this analysis has been dedicated to the Congressional midterm elections. Rutgers’ Center for American Women and Politics (CAWP) reports that female congressional candidates have “run for and won nominations in record numbers,”[5] with candidates like Alexandria Ocasio-Cortez garnering national attention.[6] However, it is worth noting that women have also won gubernatorial and state legislative primaries in record numbers.[7] With this in mind, it is time to examine one of the barriers facing women running for state-wide office: childcare.

Childcare poses a significant financial burden for many Americans. In fact, this is one reason that some have argued against considering childcare a campaign expense. “Child care is a very real concern for lots and lots of families… [b]ut all those other families find a way to pay for child care and they certainly don’t do it with political donations.”[8]

However, NPR notes that “women are far more likely than men to shoulder more of the childcare burden.”[9] This is true even in families where both parents work full-time.[10] Unsurprisingly, this burden only increases as women seeking political office are forced to spend more hours outside of the home at rallies, fundraisers and various campaign events. Many women, including current members of Congress and former Secretary of State Hillary Clinton, have stated that women would be more likely to run for office if not for childcare costs.[11] Following the Federal Election Commission’s unanimous ruling, regarding the use of campaign funds for childcare in May, this no longer poses a substantial barrier to candidates seeking federal office.[12]

In April 2018, N.Y. Democratic candidate Liuba Grechen Shirley asked the Federal Election Commission (FEC) to rule that she could use political contributions to pay for childcare costs that she incurred due to her campaign for the U.S. House of Representatives without violating the Federal Election Campaign Act of 1971.[13] The Federal Election Campaign Act of 1971 prohibits candidates for federal office from converting political donations or contributions to personal use.[14] This means using political donations or contributions “to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign or individual’s duties as a holder of Federal office.”[15]  The FEC applies this “irrespective test” to determine whether uses that are not explicitly addressed be the FECA are prohibited or not.[16] In May, the FEC ruled in Shirley’s favor:

The Commission concludes that the childcare expenses described in your request, to the extent such expenses are incurred as a direct result of campaign activity, would not exist irrespective of your election campaign, and thus may be permissibly paid with campaign funds.[17]

However, this obstacle has not necessarily been removed for women running for state-wide office. Since the FECA does not apply to state and local elections, the FEC’s May 2018 ruling does not provide security for women seeking state-wide political office. While women candidates have sought similar rulings from state election boards, they have experienced mixed success.[18] Both the Alabama Ethics Commission and the Texas Ethics Commission have the FEC’s example and ruled that campaign donations may be used to pay for additional childcare costs incurred due to campaign events.[19] However, the Connecticut Elections Enforcement Commission and the Iowa Ethics and Campaign Disclosure Board have not been as accommodating.[20] Election officials in Connecticut argued that state regulations prohibit campaign funds from being used on personal expenses “even if [they] may be campaign related,” while a spokesperson for Iowa election officials maintained that the issue was “best left to the legislature.” [21]

These statements highlight the difficulty in removing barriers to representation in state and local government. The federal government does not have the authority to regulate state elections, forcing individuals to push for reform on a state-by-state basis. However, it may be difficult to effect change on a state-by-state basis given the existing lack of female representation in state legislatures. While the solution remains unclear, it is clear that this problem must be resolved before the promise of truly representative local and state government can be realized.

[1] See e.g. Nia-Malika Henderson, The Year of the Woman Is Here. But It’s Not Quite What You Think., CNN (Sep. 12, 2018), https://www.cnn.com/2018/06/27/politics/year-of-the-woman-politics/index.html.

[2] Alix Strauss, Key Moments Since 1992, ‘The Year of the Woman’, N.Y. Times (Apr. 2, 2017), https://www.nytimes.com/interactive/2017/04/02/us/02timeline-listy.html; Nia-Malika Henderson, The Year of the Woman Is Here. But It’s Not Quite What You Think., CNN (Sep. 12, 2018), https://www.cnn.com/2018/06/27/politics/year-of-the-woman-politics/index.html.

[3] See Alix Strauss, Key Moments Since 1992, ‘The Year of the Woman’, N.Y. Times (Apr. 2, 2017), https://www.nytimes.com/interactive/2017/04/02/us/02timeline-listy.html; Nia-Malika Henderson, The Year of the Woman Is Here. But It’s Not Quite What You Think., CNN (Sep. 12, 2018), https://www.cnn.com/2018/06/27/politics/year-of-the-woman-politics/index.html.

[4] See David Smith, Anita Hill and the Senate ‘sham trial’ that echoes down to Kavanaugh, Guardian (Sep. 23, 2018), https://www.theguardian.com/law/2018/sep/22/brett-kavanaugh-christine-blasey-ford-anita-hill-clarence-thomas-senate-judiciary-committee.

[5] Kelly Ditmar, By the Numbers: Women Congressional Candidates in 2018, Ctr for American Women & Politics (Sept. 12, 2018), http://cawp.rutgers.edu/congressional-candidates-summary-2018.

[6] David Weigel, Alexandria Ocasio-Cortez: The Democrat who challenged her party’s establishment — and won, Wash. Post (Jun. 27, 2018), https://www.washingtonpost.com/news/powerpost/wp/2018/06/27/alexandria-ocasio-cortez-the-democrat-who-challenged-her-partys-establishment-and-won.

[7] Kelly Ditmar, By the Numbers: Women Candidates for State Executive and State Legislative Office in 2018, Ctr for American Women & Politics (Sept. 14, 2018), http://cawp.rutgers.edu/state-candidates-summary-2018.

[8] Danielle Kurtzleben, If A Parent’s Day Job Is Running For Congress, Can The Campaign Pay For Child Care?, NPR (Apr. 22, 2018), https://www.npr.org/2018/04/22/604339101/if-a-parents-day-job-is-running-for-congress-can-the-campaign-pay-for-child-care.

[9] Danielle Kurtzleben, If A Parent’s Day Job Is Running For Congress, Can The Campaign Pay For Child Care?, NPR (Apr. 22, 2018), https://www.npr.org/2018/04/22/604339101/if-a-parents-day-job-is-running-for-congress-can-the-campaign-pay-for-child-care.

[10] Danielle Kurtzleben, If A Parent’s Day Job Is Running For Congress, Can The Campaign Pay For Child Care?, NPR (Apr. 22, 2018), https://www.npr.org/2018/04/22/604339101/if-a-parents-day-job-is-running-for-congress-can-the-campaign-pay-for-child-care.

[11] Danielle Kurtzleben, FEC Says That Candidates Can Use Campaign Funds For Child Care, NPR (May 10, 2018), https://www.npr.org/2018/05/10/610099506/fec-says-that-candidates-can-use-campaign-funds-for-child-care.

[12] See Danielle Kurtzleben, FEC Says That Candidates Can Use Campaign Funds For Child Care, NPR (May 10, 2018), https://www.npr.org/2018/05/10/610099506/fec-says-that-candidates-can-use-campaign-funds-for-child-care; Personal Use, Fed. Election Comm’n, https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/.

[13] Danielle Kurtzleben, If A Parent’s Day Job Is Running For Congress, Can The Campaign Pay For Child Care?, NPR (Apr. 22, 2018), https://www.npr.org/2018/04/22/604339101/if-a-parents-day-job-is-running-for-congress-can-the-campaign-pay-for-child-care.

[14] See 52 USC § 30114(b)(1) (2007).

[15] 52 USC § 30114(b)(2) (2007).

[16] See Danielle Kurtzleben, FEC Says That Candidates Can Use Campaign Funds For Child Care, NPR (May 10, 2018), https://www.npr.org/2018/05/10/610099506/fec-says-that-candidates-can-use-campaign-funds-for-child-care.

[17] Caroline C. Hunter, Fed. Election Comm’n, Advisory Opinion 2018-06, at 2 (May 10, 2018), https://www.fec.gov/files/legal/aos/2018-06/2018-06.pdf.

[18] Candice Norwood, Is Child Care a Campaign Expense? States Are Divided., Governing (Aug. 13, 2018),  http://www.governing.com/topics/politics/gov-candidates-campaign-funds-child-care-fec.html.

[19] Candice Norwood, Is Child Care a Campaign Expense? States Are Divided., Governing (Aug. 13, 2018),  http://www.governing.com/topics/politics/gov-candidates-campaign-funds-child-care-fec.html.

[20] Candice Norwood, Is Child Care a Campaign Expense? States Are Divided., Governing (Aug. 13, 2018),  http://www.governing.com/topics/politics/gov-candidates-campaign-funds-child-care-fec.html.

[21] Candice Norwood, Is Child Care a Campaign Expense? States Are Divided., Governing (Aug. 13, 2018),  http://www.governing.com/topics/politics/gov-candidates-campaign-funds-child-care-fec.html.

css.php