HOUSE ETHICS
MANUAL
COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT
110
TH
Congress, 2d Session
2008 Edition
(Supersedes All Prior Editions)
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ii
COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT
Staff
William V. O'Reilly, Chief Counsel/Staff Director
Dawn Kelly Mobley, Counsel to the Chairwoman
Todd Ungerecht, Counsel to the Ranking Republican Member
Carol Dixon, Counsel
Ken Kellner, Senior Counsel
Morgan Kim, Counsel
Susan Olson, Counsel
Margaret Perl, Counsel
John Sassaman, Jr., Senior Counsel
Stan Simpson, Counsel
Tonia Smith, Counsel
Pete Van Hartesveldt, Counsel
Peter Johnson, System Administrator
Donna Hayes, Staff Assistant
Paulicia Larkin, Staff Assistant
Deborah Peay, Financial Disclosure Advisor
Hilary Smith, Senior Staff Assistant
Joanne White, Administrative Assistant
Stephanie Tubbs Jones, Ohio,
Chairwoman
Doc Hastings, Washington,
Ranking
Republican Member
Gene Green, Texas
Jo Bonner, Alabama
Lucille Roybal-Allard, California
J. Gresham Barrett, South Carolina
Michael Doyle, Pennsylvania
John Kline, Minnesota
William Delahunt, Massachusetts
Michael McCaul, Texas
v
Contents
Chapter 1. GENERAL ETHICAL STANDARDS ...................................................................... 1
Overview.............................................................................................................................. 1
General Ethical Standards .................................................................................................. 2
Violations of Ethical Standards .......................................................................................... 3
History of the Committee .................................................................................................... 4
Committee Procedures ........................................................................................................ 8
Conduct Reflecting Credibility on the House .................................................................... 12
The Spirit and the Letter of the Rules .............................................................................. 16
Refraining From Legislative Activity After Conviction .................................................... 17
Code of Ethics for Government Service ............................................................................. 20
Rules of Members, Officers, Supervisors, and Committees .............................................. 21
Advisory Opinions ............................................................................................................. 21
Chapter 2. GIFTS .................................................................................................................... 23
Overview............................................................................................................................ 23
Statutory Prohibitions ....................................................................................................... 25
Gift Rule History ............................................................................................................... 27
The House Gift Rule .......................................................................................................... 30
What is a Gift? ................................................................................................................. 31
Who Is Subject to the Gift Rule?..................................................................................... 32
Gifts Valued at Less Than $50 ....................................................................................... 34
Application of the Rule in Specific Circumstances ........................................................ 35
Relationship of the General Provision on Acceptable Gifts to the Specific
Provisions .................................................................................................................. 38
Other Acceptable Gifts ...................................................................................................... 39
Gifts Given on the Basis of Personal Friendship ............................................................ 39
Attendance at Events (Including Meals) ......................................................................... 41
Food or Refreshments of a Nominal Value (Attendance at Receptions)........................ 50
Meal or Local Transportation Incident to a Visit to a Business Site ............................. 52
An Item of Nominal Value ................................................................................................ 53
Commemorative Items ...................................................................................................... 53
Books, Periodicals, and Other Informational Materials ................................................. 54
Things Paid for by the Federal Government, or by a State or Local Government ....... 55
Gifts From Foreign Governments and International Organizations ............................. 57
Benefits Resulting From Outside Business and Other Activities.................................. 59
Personal Hospitality of an Individual .............................................................................. 61
Contributions to a Legal Expense Fund, and Pro Bono Legal Services ........................ 63
―Home State‖ Products...................................................................................................... 65
Honorary Degrees and Nonmonetary Public Service Awards........................................ 66
Training in the Interest of the House .............................................................................. 67
Widely Available Opportunities and Benefits ................................................................. 67
Loans .................................................................................................................................. 68
Awards and Prizes ............................................................................................................ 69
Gifts From Relatives ......................................................................................................... 69
Gifts From Other Members, Officers, or Employees....................................................... 70
Things for Which a Gift Rule Waiver Is Granted ........................................................... 70
Other Acceptable Gifts ...................................................................................................... 71
Other Expressly Prohibited Lobbyist Gifts ....................................................................... 71
Handling Unacceptable Gifts ............................................................................................ 73
Pay Market Value for the Gift ........................................................................................ 73
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HOUSE ETHICS MANUAL
Prompt Return to the Donor ........................................................................................... 74
Artwork and Other Gifts of an Unusual Nature ........................................................... 75
Gifts From a Foreign Government ................................................................................. 76
Events in Honor of a Member, Officer, or Employee......................................................... 76
Political Conventions ....................................................................................................... 77
Bribery and Illegal Gratuities ........................................................................................... 79
Fundraisers and Testimonials .......................................................................................... 83
Gift Disclosure ................................................................................................................... 84
Chapter 3. TRAVEL ................................................................................................................ 87
Overview............................................................................................................................ 87
Officially-Connected Travel Paid for by a Private Source................................................. 88
Summary of the Rule ....................................................................................................... 88
Requirement That the Travel Be in Connection With Official Responsibilities ......... 90
Travel Sponsored by Private Entities That Retain or Employ Lobbyists or
Foreign Agents .......................................................................................................... 92
Travel Sponsored by Other Private Entities ................................................................. 93
Ban on Lobbyist Accompaniment and Other Involvement ........................................... 95
Proper Sources of Expenses for Officially-Connected Travel ....................................... 97
Relationship Between the Event (Including Its Location) and the Officially-
Connected Purpose of the Trip ................................................................................. 98
Acceptable Travel Expenses ........................................................................................... 99
Accompanying Relative ................................................................................................. 101
Travel of Members and Staff Leaving Office ............................................................... 103
Requirements for Pre-Travel Certification, Standards Committee Approval,
and Post-Travel Disclosure..................................................................................... 103
Travel Unrelated to Official Duties Paid for by a Private Source................................... 105
Travel Resulting From Outside Business, Employment, or Other Activities ........... 105
Gift of Travel Given on the Basis of Personal Friendship .......................................... 107
Other Gift Rule Provisions ............................................................................................ 107
Travel Paid for by the Federal Government, or by State or Local Government ............. 108
Travel Paid for by a Foreign Government....................................................................... 108
Travel Expenses From a Foreign Government under FGDA ..................................... 109
Travel Expenses From a Foreign Government under MECEA .................................. 110
Travel Paid for by a Political Organization..................................................................... 111
Official Travel.................................................................................................................. 112
Applicability of the Prohibition Against Private Subsidy of Official Activity ........... 113
Use of the Government Rate ......................................................................................... 115
Use of Frequent Flier Miles Earned Through Official Travel .................................... 115
Mixed Purpose Trips ....................................................................................................... 116
Travel to a Charity Event ............................................................................................... 117
Use of Non-Commercial Aircraft Is Generally Prohibited .............................................. 118
Exceptions to Prohibition To Use of Personal, Official, or Campaign Funds for
Flights on Aircraft ................................................................................................... 118
Chapter 4. CAMPAIGN ACTIVITY....................................................................................... 121
Overview.......................................................................................................................... 121
General Prohibition Against Using Official Resources for Campaign or Political
Purposes .................................................................................................................... 123
Laws and Rules on Proper Use of Official Resources .................................................. 125
Limited Campaign-Related Activities That May Take Place in a Congressional
Office ........................................................................................................................ 132
Contents
vii
Campaign Work by House Employees Outside the Congressional Office and on Their
Own Time .................................................................................................................. 135
What Is an Employee‘s ―Own Time‖? ........................................................................... 136
Need To Comply With Laws and Rules Applicable to House Employees While
Doing Campaign Work............................................................................................ 137
Candidacy of a House Employee for Elective Office .................................................... 142
Campaign Contributions and Contributors .................................................................... 143
Soliciting Campaign and Political Contributions ........................................................ 143
Receipt and Acceptance of Contributions .................................................................... 148
Prohibition Against Linking Official Actions to Partisan or Political
Considerations ......................................................................................................... 150
Proper Use of Campaign Funds and Resources .............................................................. 152
Use for Bona Fide Campaign or Political Purposes .................................................... 154
No Personal Use of Campaign Funds or Resources, and the Related Verification
Requirement ............................................................................................................ 163
Use of Campaign Funds or Resources for Official House Purposes ........................... 173
Other Applicable Laws, Rules, and Standards of Conduct ............................................. 179
Laws and Rules on Campaign Letterhead ................................................................... 179
Gift Rule Provisions Applicable to Campaign Activity ............................................... 182
Member Involvement With an Independent Redistricting Fund ............................... 183
Other Provisions of the Federal Criminal Code Applicable to Campaign Activity ... 183
Chapter 5. OUTSIDE EMPLOYMENT AND INCOME ........................................................ 185
Overview.......................................................................................................................... 185
Laws, Rules, and Standards of Conduct Governing the Outside Employment of
Members and All Staff .............................................................................................. 185
Prohibition Against Use of One‘s Position With the House for Personal Gain ......... 186
Rules on Receipt of Honoraria ...................................................................................... 189
Gift Rule Applicability to Compensation and Other Things of Value Received
From an Outside Employer .................................................................................... 196
Prohibition Against Use of Congressional Office Resources ....................................... 197
Practice of Law .............................................................................................................. 197
Prohibition Against Representing Others Before Agencies or in Court Cases in
Which the Government Is a Party or Has an Interest ......................................... 198
Contracting With the Federal Government ................................................................. 200
Dual Federal Government Employment ...................................................................... 203
Holding Local Office ...................................................................................................... 204
Prohibition Against Receiving Compensation From a Foreign Government ............ 205
Additional Considerations Applicable to Staff Outside Employment ........................ 206
Negotiating for Future Employment ............................................................................ 208
Background on the Restrictions on Outside Employment and Income .......................... 211
Restrictions on Outside Employment Applicable to Members and Senior Staff ............ 213
Who Is a ―Senior Staff‖ Person for Purposes of the Restrictions on Outside
Employment and Outside Earned Income Limitations? ...................................... 214
Prohibition Against Receipt of Compensation for the Practice of Law or Other
Professions, and Related Prohibitions ................................................................... 214
Prohibition Against Serving for Compensation as an Officer or Board Member
of Any Organization ................................................................................................ 222
Requirement for Prior Committee Approval of Compensation for Teaching ............ 223
Requirement for Committee Approval of Publishing Contracts, and Prohibition
Against Receipt of Any Advance Payment of Royalties ........................................ 224
The Outside Earned Income Limitation Applicable to Members and Senior Staff ........ 228
Amount of the Annual Limitation ................................................................................ 228
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HOUSE ETHICS MANUAL
Administration and Enforcement of the Outside Employment and Outside Earned
Income Limitations, and Impact of the Limitations ................................................. 232
Administration and Enforcement ................................................................................. 232
Impact of the Limitations ............................................................................................. 233
Member Voting and Other Official Activities on Matters of Personal Interest .............. 233
General Requirement That Members Vote on Questions Before the House ............. 233
Voting and Other Activities on Matters of Personal Interest ..................................... 234
Certification of No Financial Interest in Fiscal Legislation ........................................... 238
Post-Employment Restrictions ........................................................................................ 240
Applicability of the Restrictions ................................................................................... 240
Scope of the Restrictions ............................................................................................... 241
Exceptions ...................................................................................................................... 242
Penalties ......................................................................................................................... 243
Employment Considerations for Spouses of Members and Staff .................................... 244
Chapter 6. FINANCIAL DISCLOSURE ............................................................................... 247
Overview.......................................................................................................................... 247
Statutes and Rules Governing Disclosure and Other Financial Interests ..................... 248
Policies Underlying Disclosure ........................................................................................ 249
Specific Disclosure Requirements ................................................................................... 252
Who Must File................................................................................................................ 252
Spouse and Dependent Information ............................................................................. 253
Income ............................................................................................................................ 254
Transactions................................................................................................................... 257
Liabilities ....................................................................................................................... 258
Gifts ................................................................................................................................ 258
Travel Reimbursements ................................................................................................ 259
Positions ......................................................................................................................... 260
Agreements .................................................................................................................... 261
Compensation in Excess of $5,000 Paid by One Source .............................................. 261
Trusts ............................................................................................................................. 262
Termination Reports ....................................................................................................... 263
Filing Deadlines, Committee Review, and Amendments ................................................ 263
Retention of and Public Access to Reports ...................................................................... 264
Failure To File or Filing False Disclosure Statements ................................................... 265
Chapter 7. STAFF RIGHTS AND DUTIES .......................................................................... 267
Overview.......................................................................................................................... 267
Discrimination ................................................................................................................. 268
House Rules ................................................................................................................... 268
Congressional Accountability Act of 1995 .................................................................... 269
Fair Labor Standards .................................................................................................... 271
Nepotism ......................................................................................................................... 272
Illegal Hiring and Firing Practices ................................................................................. 273
Salary Kickbacks ........................................................................................................... 274
General Employment and Compensation Provisions ...................................................... 276
Personal Staff................................................................................................................. 276
Committee Staff ............................................................................................................. 277
All Staff .......................................................................................................................... 277
Annual Ethics Training Requirement ............................................................................. 283
Lump Sum Payments ...................................................................................................... 283
Volunteers, Interns, Fellows, and Detailees ................................................................... 284
Definitions ...................................................................................................................... 285
Contents
ix
Internship and Fellowship Programs ........................................................................... 286
Volunteers ...................................................................................................................... 288
Detailees ......................................................................................................................... 292
Consultants ..................................................................................................................... 293
Lobbying ......................................................................................................................... 294
Acceptable Gifts ............................................................................................................. 295
Confidential Financial Disclosure ................................................................................ 296
Chapter 8. CASEWORK ........................................................................................................ 299
Overview.......................................................................................................................... 299
Off-the-Record (
Ex parte
) Communications .................................................................... 300
Judicially Imposed Limits ............................................................................................... 303
Congressional Standards ................................................................................................ 305
Assisting Supporters ..................................................................................................... 308
Assisting Non-Constituents .......................................................................................... 309
Government Procurement and Grants ......................................................................... 310
Communicating With Courts ........................................................................................ 311
Contacting Other Governments.................................................................................... 312
Intervening with Nongovernmental Parties ................................................................ 313
Confidentiality of Records ............................................................................................. 313
Personal Financial Interests ......................................................................................... 314
Gifts and Compensation for Casework ............................................................................ 314
Recommendations for Government Employment ........................................................... 316
―Competitive Service‖ Positions With the Federal Government ................................ 317
―Political‖ Positions With the Federal Government .................................................... 318
Postal Service ................................................................................................................. 319
Military Services and Academies ................................................................................. 319
State Governments and the Private Sector ................................................................. 319
Letterhead ...................................................................................................................... 320
Miscellaneous Considerations ...................................................................................... 321
Chapter 9. OFFICIAL ALLOWANCES ................................................................................. 323
Overview.......................................................................................................................... 323
Members‘ Representational Allowance ........................................................................... 323
Unofficial Office Accounts ............................................................................................... 326
Official Travel.................................................................................................................. 330
False Claims and Fraud .................................................................................................. 331
The Frank ........................................................................................................................ 332
Commission on Congressional Mailing Standards (The Franking Commission) ...... 333
―Dear Colleague‖ Letters ............................................................................................... 333
Chapter 10. OFFICIAL AND OUTSIDE ORGANIZATIONS ............................................... 335
Overview.......................................................................................................................... 335
Official Support Organizations ....................................................................................... 336
Congressional Member Organizations ......................................................................... 336
Congressional Staff Organizations ............................................................................... 337
Informal Member and Staff Organizations .................................................................. 337
Private Entities With Shared Goals ................................................................................ 338
Member Advisory Groups ................................................................................................ 339
Conferences and Town Hall Meetings ............................................................................. 340
Applicability of House Rule 24 to Events Sponsored by a House Office .................... 341
Involvement With Outside Activities and Entities ......................................................... 344
Events With Outside Entities ....................................................................................... 345
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HOUSE ETHICS MANUAL
Congressional Art Competition .................................................................................... 346
Expressions or Symbols of Official Sponsorship .......................................................... 346
Solicitation of Funds From or on Behalf of Outside Organizations ........................... 347
Support for Commercial Enterprises ........................................................................... 349
Unofficial Representational Activities ......................................................................... 351
Mailing Lists and Outside Organizations .................................................................... 352
1
GENERAL ETHICAL STANDARDS
Overview
Members, officers, and employees of the House should:
Conduct themselves at all times in a manner that reflects creditably on the
House;
Abide by the spirit as well as the letter of the House rules; and
Adhere to the broad ethical standards expressed in the Code of Ethics for
Government Service.
They should not in any way use their office for private gain. Nor should they
attempt to circumvent any House rule or standard of conduct.
Employees must observe any additional rules, regulations, standards, or
practices established by their employing Members.
The Committee on Standards of Official Conduct urges Members, officers,
and employees of the House to call or to write the Committee with any questions
regarding the propriety of any current or proposed conduct. The Committee‘s Office
of Advice and Education will provide confidential, informal advice over the
telephone, and the Committee will provide confidential, formal written opinions to
any Member, officer, or employee with a question within its jurisdiction.
2 HOUSE ETHICS MANUAL
General Ethical Standards
Government is a trust, and the officers of the government are trustees;
and both the trust and the trustees are created for the benefit of the
people.
HENRY CLAY
1
That ―public office is a public trust‖ has long been a guiding principle of
government.
2
To uphold this trust, Congress has bound itself to abide by certain
standards of conduct, expressed in the Code of Official Conduct (House Rule 23)
3
and the Code of Ethics for Government Service.
4
These codes provide that
Members, officers, and employees are to conduct themselves in a manner that will
reflect creditably on the House, work earnestly and thoughtfully for their salary,
and that they may not seek to profit by virtue of their public office, allow
themselves to be improperly influenced, or discriminate unfairly by the dispensing
of special favors. This chapter discusses the overarching principles that inform both
codes, the penalties for violating their provisions, and the history and procedures of
the Committee on Standards of Official Conduct.
Appropriate standards of conduct enhance the legislative process and build
citizen confidence. ―Ethics rules, if reasonably drafted and reliably enforced,
increase the likelihood that legislators (and other officials) will make decisions and
policies on the basis of the merits of issues, rather than on the basis of factors (such
as personal gain) that should be irrelevant.‖
5
Members, officers, and employees
should, at a minimum, familiarize themselves with the Code of Official Conduct and
1
Speech at Ashland, Kentucky, March 1829. Henry Clay was Speaker of the House of
Representatives during 1811-1814, 1815-1820, and 1823-1825.
2
Code of Ethics for Government Service ¶ 10, H. Con. Res. 175, 72 Stat., pt. 2, B12 (adopted
July 11, 1958) (contained in the appendices to this Manual). This creed, the motto of the Grover
Cleveland administration, has been voiced by such notables as Edmund Burke (
Reflections on the
Revolution in France
(1790)), Charles Sumner (speech, U.S. Senate (May 31, 1872)), as well as Henry
Clay (
see
note 1,
supra
).
3
House rules are formally referenced by Roman numerals. For ease of reading, this manual
uses the more familiar Arabic numerals throughout. All citations are to the House rules for the 110
th
Congress, unless specifically stated otherwise.
4
See
note 2,
supra
.
5
Congressional Ethics Reform: Hearings Before the Bipartisan Task Force on Ethics, U.S.
House of Representatives
, 101
st
Cong., 1
st
Sess. 113 (1989) (statement of Dennis F. Thompson, Alfred
North Whitehead Professor of Political Philosophy in the Kennedy School of Government and the
Department of Government, Harvard University, and Director of the Harvard University Program in
Ethics and the Professions).
General Ethical Standards
3
the Code of Ethics for Government Service. The Code of Official Conduct and the
Code of Ethics for Government Service not only state aspirational goals for public
officials, but violations of provisions contained therein may also provide the basis
for disciplinary action in accordance with House rules.
Violations of Ethical Standards
Violations of ethical standards may lead to various penalties. The U.S.
Constitution authorizes each House of Congress to punish its Members for
disorderly behavior and, with the concurrence of two thirds, to expel a Member.
6
The House may also punish a Member by censure, reprimand, condemnation,
reduction of seniority, fine, or other sanction determined to be appropriate.
7
A House rule specifically authorizes the Standards Committee to enforce
standards of conduct for Members, officers, and employees; to investigate alleged
violations of any law, rule, or regulation pertaining to official conduct; and to make
recommendations to the House for further action.
8
Committee rules reflect the
Committee‘s authority to issue letters of reproval and to take other administrative
action.
9
House rules further provide that either with approval of the House or by an
affirmative vote of two-thirds of its Members, the Committee may report
substantial evidence of violation by a Member, officer, or employee to the
appropriate federal or state authorities.
10
Some standards of conduct derive from criminal law. Violations of these
standards may lead to a fine or imprisonment, or both. In some instances, such as
conversion of government funds or property to one‘s own use or false claims
concerning expenses or allowances, the Department of Justice may seek restitution.
Among the sanctions that the Committee may recommend be imposed upon a
Member in a disciplinary matter is the ―[d]enial or limitation of any right, power,
privilege, or immunity of the Member if under the Constitution the House may
impose such denial or limitation.‖
11
The Committee may also recommend sanctions
6
U.S. Const., art. I, § 5, cl. 2.
7
See generally
Joint Comm. on Congressional Operations, House of Representatives
Exclusion, Censure, and Expulsion Cases from 1789 to 1973, 93d Cong., 1
st
Sess. (Comm. Print
1973); Committee Rule 24(e).
8
See
House Rule 10, cl. 1(q); House Rule 11, cl. 3.
9
See
Comm. Rule 24(d) and (e)(6).
10
See
House Rule 11, cl. 3(a)(3); Committee Rule 28.
See also
5 U.S.C. app. 4 § 104(b),
authorizing the Committee to refer to the Attorney General – without seeking approval of the House
– individuals who have willfully failed to file or falsified information required to be reported on
Financial Disclosure Statements.
11
See
Comm. Rule 24(e)(5).
4 HOUSE ETHICS MANUAL
be imposed by the House against an officer or employee of the House. Such
sanctions could include dismissal from employment, reprimand, fine, or other
appropriate sanction.
12
Charges of unethical conduct can be evaluated only on a case-by-case basis.
As the Committee has noted, ―it was for the very purpose of evaluating particular
situations against existing standards, and of weeding out baseless charges from
legitimate ones, that this committee was created.‖
13
History of the Committee
The first recorded instance of the House of Representatives attempting to
take disciplinary action against a Member occurred in 1798. On January 30,
Matthew Lyon (of Vermont) spat upon Roger Griswold (of Connecticut) during a
vote. A letter of apology was sent; nevertheless, the Committee of the Whole heard
the evidence and recommended expulsion. The vote fell two short of the two-thirds
majority necessary to expel a Member.
14
From 1798 until 1967, the House undertook disciplinary action against
Members over 40 times, with no standardized approach. The offenses ranged from
dueling to inserting obscene material in the
Congressional Record
. Some cases were
handled directly on the House floor without Committee action, others through the
creation of select investigating committees. In at least one case, the accused
Member was not allowed to speak on his own behalf or to present any defense.
15
There were even attempts to punish former Members who had resigned.
16
Beginning in the late 1940s, Senators Wayne Morse and Paul Douglas and
Representative Charles Bennett advocated the enactment of an official code of
conduct. In 1958, the Code of Ethics for Government Service was approved.
17
In
1964, following the investigation of Bobby Baker, Secretary to the Majority in the
Senate, the Senate created a Select Committee on Standards of Conduct.
12
See
Comm. Rule 24(f).
13
House Comm. on Standards of Official Conduct,
In the Matter of a Complaint Against
Representative Robert L.F. Sikes
, H. Rep. 94-1364, 94
th
Cong., 2d Sess. 8 (1976).
14
II A. Hinds,
Hinds‘ Precedents of the House of Representatives of the United States
, §§
1642-1643 (1907).
15
Id
. at § 1256 (In the Matter of Representative Joshua R. Giddings).
16
Id
. at §§ 1239 (In the Matter of Representative John T. Deweese), 1273 (In the Matter of
Representative Benjamin F. Whittemore).
17
See
note 2,
supra
.
General Ethical Standards
5
During the 89
th
Congress, two different actions prompted the creation of the
House Committee on Standards of Official Conduct. In 1965, the Joint Committee
on the Organization of Congress held hearings in which considerable testimony
addressed the ethical conduct of Members, the need for codes of conduct and
financial disclosure regulations, and the need for an ethics committee. In its final
report, the Joint Committee‘s recommendations included the creation of a House
Committee on Standards and Conduct.
18
The other action involved an investigation by the Special Subcommittee on
Contracts of the Committee on House Administration into the expenditures of the
Committee on Education and Labor and the conduct of its chairman, Representative
Adam Clayton Powell, Jr., of New York. The Subcommittee‘s report concluded that
the chairman and certain employees had deceived House authorities as to travel
expenses and also noted strong evidence that the chairman had directed certain
illegal salary payments to his wife.
19
No formal action was taken during the 89
th
Congress against Representative Powell. In the 90
th
and 91
st
Congresses, however,
he was removed from his chairmanship, denied his seniority, and fined,
20
and an
attempt was made to exclude him.
21
Against this backdrop, a Select Committee on Standards and Conduct was
established in the closing days of the 89
th
Congress. The Select Committee's
authority was limited to (1) recommending additional rules or regulations to ensure
that Members, officers, and employees of the House adhere to proper standards of
conduct in the discharge of their official duties; and (2) reporting violations of any
law to the proper federal and state authorities.
22
The Select Committee‘s term was limited.
23
On April 13, 1967, the House
established the Committee on Standards of Official Conduct, to be composed of six
members of the majority party and six members of the minority party. The
Committee was directed to recommend such changes in laws, rules, and regulations
as necessary to establish and to enforce standards of official conduct for Members,
18
Joint Comm. on the Organization of Congress,
Final Report pursuant to S. Con. Res. 2
, S.
Rep. 1414, 89
th
Cong., 2d Sess. 48 (1966).
19
H. Rep. 2349, 89
th
Cong., 2d Sess. 6-7 (1966).
20
See
H. Rep. 27, 90
th
Cong., 1
st
Sess. (1967); H. Res. 2, 91
st
Cong., 1
st
Sess., 115
Cong. Rec.
.
H21 (Jan. 3, 1969).
21
113
Cong. Rec
. 26-27 (Mar. 1, 1967).
22
H.R. 1013; see also House Comm. on Rules, Creating a Select Committee on Standards and
Conduct, Report to Accompany H.R. 1013, H. Rep. 2012, 89
th
Cong., 2d Sess. (1966).
23
See generally
House Select Comm. on Standards of Official Conduct
, Report Under the
Authority of H.R. 1013
, H. Rep. 2338, 89
th
Cong., 2d Sess. (1966).
6 HOUSE ETHICS MANUAL
officers, and employees.
24
One year later, the House Rules were amended to include
a Code of Conduct (currently codified as House Rule 23) and an annual financial
disclosure requirement (currently codified as House Rule 26).
25
At the same time,
the Committee was made a permanent standing committee with authority to
investigate alleged violations of the Code of Conduct and to issue advisory opinions
interpreting its provisions.
26
Four ad hoc groups have influenced the Committee‘s work: (1) The
Commission on Administrative Review (generally known as the ―Obey
Commission‖); (2) the Select Committee on Ethics; (3) the Bipartisan Task Force on
Ethics; and (4) the Ethics Reform Task Force. The work of each group is
summarized below.
The Obey Commission was established in July 1976 (95
th
Congress), in the
aftermath of Watergate, and directed to make recommendations to the House
concerning ethical practices, financial accountability, and administrative operations
of the House. These recommendations were set forth in a report entitled
Financial
Ethics
27
and a resolution, H. Res. 287. The House‘s adoption, on March 2, 1977, of
H. Res. 287 changed the House rules governing financial disclosure, outside earned
income, acceptance of gifts, unofficial office accounts, franking privileges, and
travel. The Commission also recommended the creation of a select committee with
legislative jurisdiction over these areas.
Based on the Obey Commission‘s recommendation, the House established the
Select Committee on Ethics in March 1977 to provide guidelines and interpretations
concerning House rules currently codified as House Rules 23, 24, 25, and 26, and to
report legislation. The Select Committee and the Committee on Standards of
Official Conduct operated simultaneously, with different jurisdictions. During the
two years of the Select Committee‘s existence, it issued 13 formal Advisory Opinions
interpreting the new House rules and recommended that the House rules
pertaining to financial disclosure and franking (current House Rules 24 and 26) be
enacted into law, which occurred in 1978.
28
When the Select Committee completed
its task, it issued a
Final Report
,
29
and its records and materials were transferred to
the Committee on Standards of Official Conduct to assist the latter in rendering
24
H. Res. 418, 90
th
Cong., 1
st
Sess. (1967).
25
H. Res. 1099, 90
th
Cong., 2d Sess. (1968).
26
Id.
27
H. Doc. 95-73, 95
th
Cong., 1
st
Sess. (1977).
28
See
Ethics in Government Act of 1978, now codified, as amended, at 5 U.S.C. app. 4 §§ 101-
111 and 39 U.S.C. §§ 3210-3220.
29
H. Rep. 95-1837, 95
th
Cong., 2d Sess. (1979).
General Ethical Standards
7
advisory opinions and interpreting House rules relating to financial ethics and
standards of conduct.
On February 2, 1989, the Speaker and the Republican Leader of the 101
st
Congress appointed a Bipartisan Task Force on Ethics to conduct a comprehensive
review of House ethics rules and regulations. Co-chaired by Representatives Vic
Fazio and Lynn Martin, the Task Force looked anew at the rules concerning gifts,
honoraria, outside earned income, financial disclosure, and the use of official
resources, as well as considered issues relating to ethics committee procedures and
the compensation of Members and other senior government officials. After four
public hearings and much internal study, the Task Force issued a report
30
and a bill,
H.R. 3660. This bill became the Ethics Reform Act of 1989, Pub. L. 101-194, signed
into law on November 30, 1989, and amended with technical corrections by Pub. L.
101-280 on May 4, 1990.
The Ethics Reform Act enacted a total ban on honoraria, revisions to the
outside earned income limits, new post-employment restrictions, changes to the gift
and travel limits, and financial disclosure revisions. The Ethics Reform Act also
contained several provisions affecting the Committee on Standards of Official
Conduct. In 1990, an Office of Advice and Education was established within the
Committee to provide confidential advice to Members, officers, and employees. A
statute of limitations of three terms was enacted for investigations of alleged
violations. In 1991, the Committee‘s membership increased from 12 to 14, and it
adopted procedures ensuring that the same members do not both recommend
charges and sit in judgment of those charges.
In February 1997, following the resolution of a Committee investigation of
the Speaker of the House,
31
the House of Representatives established the Ethics
Reform Task Force, chaired by Representatives Robert L. Livingston and Benjamin
L. Cardin. The task force was directed to review procedures governing the ethics
process and to recommend appropriate reforms. On September 18, 1997, the House
adopted the recommendations of the Ethics Reform Task Force with amendments
(H.R. 168). The recommended changes to the House ethics rules proposed by the
Ethics Reform Task Force were designed to ―improve the trust and confidence that
the Members, and the American people, have in the House standards process.‖ The
recommendations adopted by the House included a requirement that Standards
Committee staff be nonpartisan, professional, and available as a resource to all
Members of the Committee. Other recommendations adopted by the House
30
House Bipartisan Task Force on Ethics,
Report on H.R. 3660
, 101
st
Cong., 1
st
Sess. (Comm.
Print, Comm. on Rules 1989),
reprinted in
135
Cong. Rec
. H9253 (daily ed. Nov. 21, 1989).
31
House Comm. on Standards of Official Conduct,
In the Matter of Representative Newt
Gingrich
, H. Rep. 105-1, 105
th
Cong., 1
st
Sess. (Jan. 17, 1997).
8 HOUSE ETHICS MANUAL
included reducing the size of the Committee from 14 to 10 Members, expanding due
process for respondents, and establishing a pool of 20 members (10 from each party)
to be available to serve on an investigative subcommittee as needed by the
Committee.
32
Committee Procedures
The Rules of the Committee on Standards of Official Conduct
33
have been
periodically revised since the Committee was established to reflect changes in
Committee structure and procedures implemented by the House. Current rules also
reflect changes necessitated following experience under prior rules. The current
rules provide for an Office of Advice and Education within the Committee and the
bifurcation of the Committee investigatory and disciplinary process. The rules also
govern the issuance of advisory opinions, the receipt of complaints, and the conduct
of Committee investigations.
Committee rules now set forth the following requirements for complaints
filed with the Committee:
34
A complaint must be in writing, dated, and properly verified.
35
A complaint must set forth the following in simple, concise, and direct
statements: the name and legal address of the party filing the complaint; the
name and position or title of the respondent; the nature of the alleged
violation of the Code of Official Conduct or of other law, rule, regulation, or
other standard of conduct applicable to the performance of duties or
discharge of responsibilities; and the facts alleged to give rise to the violation.
A complaint shall not contain innuendo, speculative assertions, or conclusory
statements.
36
Information offered as a complaint by a Member of the House of
Representatives may be transmitted directly to the Committee; however,
32
Report of the Ethics Reform Task Force on H. Res. 168
, 105
th
Cong., 1
st
Sess. (Comm. Print
June 17, 1997).
33
House Comm. on Standards of Official Conduct, Rules, 110
th
Cong., 1
st
Sess. (Comm. Print
2007) (hereinafter ―Comm. Rule(s)‖),
reprinted in
153
Cong. Rec
. H7331-37 (June 27, 2007). The
Committee‘s rules are also available on the Committee‘s website.
34
See generally
Comm. Rule 15.
35
Committee Rule 15(a) provides that a document will be considered properly verified when
a notary executes it with the language, ―Signed and sworn to (or affirmed) before me on (date) by
(the name of the person).‖
36
See
House Comm. on Standards of Official Conduct
Summary of Activities for the One
Hundred Eighth Congress
, H. Rep. 108-806, 2d Sess. (Jan. 3, 2005) at 21 (concerning content of
complaint filed by Representative Chris Bell).
General Ethical Standards
9
information offered as a complaint by an individual not a Member of the
House may be transmitted to the Committee, provided that a Member of the
House certifies in writing that he or she believes the information is submitted
in good faith and warrants the review and consideration of the Committee.
A complaint must be accompanied by a certification, which may be unsworn,
that the complainant has provided an exact copy of the filed complaint and
all attachments to the respondent.
The Committee shall not accept, and shall return to the complainant, any
complaint submitted within the 60 days prior to an election in which the
subject of the complaint is a candidate.
The Committee shall not consider a complaint, nor shall any investigation be
undertaken by the Committee, of any alleged violation which occurred before
the third previous Congress unless the Committee determines that the
alleged violation is directly related to an alleged violation which occurred in a
more recent Congress.
Committee rules also contain requirements and procedures that follow the
filing of a complaint. Initially, a determination is made by the Chairman and
Ranking Minority Member of the Committee as to whether a complaint is in
compliance with House and Committee rules.
37
If it is determined that the
complaint submitted meets the requirements for what constitutes a complaint,
Committee rules provide for notification of that determination to the respondent,
and for an opportunity for the respondent to provide a response.
38
The Chairman
and Ranking Minority Member may establish an investigative subcommittee or
make recommendations to the full Committee as to the disposition of the
complaint.
39
The recommendations that the Chairman and Ranking Minority
Member of the Committee may make include recommending that the Committee
dismiss the complaint or any portion thereof, or that it establish an investigative
subcommittee.
40
The rules permit the Chairman and Ranking Minority Member to
jointly gather additional information concerning alleged conduct which is the basis
for a complaint until the Committee has established an investigative subcommittee
or placed the issue of establishing an investigative subcommittee on the agenda of
Committee meeting.
41
37
Comm. Rule 16(a).
38
Comm. Rule 17(a) and (b).
39
Comm. Rule 16(b).
40
Id
.
41
Comm. Rule 17(c).
10 HOUSE ETHICS MANUAL
The rules also permit, notwithstanding the absence of a filed complaint, the
Committee to consider any information in its possession indicating that a Member,
officer, or employee may have committed a violation of the Code of Official Conduct
or any law, rule, regulation, or other standard of conduct applicable to the conduct
of such Member, officer, or employee in the performance of his or her duties or the
discharge of his or her responsibilities.
42
Further, the Chairman and Ranking
Minority Member may jointly gather additional information concerning such an
alleged violation unless and until an investigative subcommittee has been
established.
43
If an investigative subcommittee is established, the Chairman and Ranking
Minority Member designate four Members of the House (with equal representation
from the majority and minority parties) to serve on the subcommittee. One of the
Members of the investigative subcommittee is designated by the Chairman of the
Committee to serve as Chairman of the investigative subcommittee. The Ranking
Minority Member of the Committee designates one Member of the investigative
subcommittee to be its Ranking Minority Member.
44
Once appointed, the investigative subcommittee gathers evidence relating to
the matter under investigation. Any evidence relevant to the inquiry is admissible
unless it is privileged under House rules.
45
The investigative subcommittee may, by
a majority vote of its Members, compel by subpoena the attendance and testimony
of witnesses and the production of documents it deems necessary to conduct its
inquiry.
46
In addition, investigative subcommittee staff may interview witnesses
and examine documents, among other investigative measures.
47
The proceedings of
the investigative subcommittee, including the taking of witness testimony, are
conducted in executive session.
48
All witnesses and the respondent in an inquiry
may be represented by counsel.
49
At the conclusion of its inquiry, the investigative subcommittee may ―adopt a
Statement of Alleged Violation if it determines that there is substantial reason to
believe that a violation . . . has occurred.‖
50
The Statement of Alleged Violation
42
Comm. Rule 18(a).
43
Id
.
44
Comm. Rule 19(a).
45
Comm. Rule 19(c)(1).
46
Comm. Rule 19(b)(5).
47
Comm. Rule 19(b)(4).
48
Comm. Rule 19(b)(1).
49
Comm. Rules 19(b)(2), 26(c), and 26(m).
50
Comm. Rule 19(f).
General Ethical Standards
11
must contain a plain and concise statement of facts and a reference to the particular
standard of conduct violated by the respondent.
51
Prior to adopting the Statement
of Alleged Violation, the investigative subcommittee must make exculpatory
information received by the investigative subcommittee available to the
respondent.
52
The rules permit a respondent to submit an answer, in writing and
under oath, to the Statement of Alleged Violation, as well as to file a Motion for a
Bill of Particulars and a Motion to Dismiss.
53
If an investigative subcommittee does
not adopt a Statement of Alleged Violation, it shall transmit a report to the
Committee that contains a summary of the information received during the inquiry
along with the conclusions and recommendations, if any, of the investigative
subcommittee.
54
Unless otherwise resolved under Committee and House rules, the next step of
the disciplinary process requires the allegations in the Statement of Alleged
Violation to be put before an adjudicatory subcommittee that consists of all
Members of the Committee who did not serve on the investigative subcommittee.
55
In a public adjudicatory hearing to determine whether the alleged violations have
been proven by clear and convincing evidence, both the respondent and Committee
counsel may present evidence.
56
The burden of proof rests on Committee counsel to
establish the facts alleged in the Statement of Alleged Violation by clear and
convincing evidence.
57
If a majority of the members of an adjudicatory subcommittee find that any
count of in a Statement of Alleged Violation has been proven by clear and
convincing evidence, a public sanction hearing is held before all of the members of
the Standards Committee to determine the appropriate sanction to adopt or to
recommend to the House.
58
As noted, the Committee may recommend one or more of several different
sanctions to the House of Representatives, including expulsion from the House of
Representatives, censure, or reprimand.
59
The Committee may also send a Letter of
51
Id
.
52
Comm. Rule 25.
53
Comm. Rule 22(a), (b), and (c).
54
Comm. Rule 19(g).
55
Comm. Rule 23(a).
56
Comm. Rule 23(j).
57
Comm. Rule 23(n).
58
Comm. Rule 24(b).
59
Comm. Rule 24(e).
12 HOUSE ETHICS MANUAL
Reproval to a respondent without recommending further action by the full House.
60
A Letter of Reproval is ―intended to be a rebuke of a Member‘s conduct issued by a
body of that Member‘s peers acting, as the Standards Committee, on behalf of the
House of Representatives.‖
61
In the entire history of the House of Representatives, five Members have
been expelled. Of the five Members, three of them were expelled for conduct
traitorous to the Union in the Civil War era. Michael J. Myers was expelled from
the House in 1980 following his conviction for bribery in connection with the
ABSCAM scandal.
62
James A. Traficant, Jr., was expelled from the House in 2002,
following his trial and conviction for conspiring to violate the bribery statute (18
U.S.C. § 201), acceptance of gratuities, obstruction of justice, conspiracy to defraud
the United States, filing false federal income tax returns, and racketeering.
63
Since
the establishment of this Committee, four Members have been censured by the
House after Committee investigations, and seven have been reprimanded. In
addition, the Committee has issued five public letters of reproval, without
recommending action by the full House, and has publicly admonished several other
Members for their conduct. Ten Members left the House after charges were brought
by the Committee or court convictions were returned but before House action could
be concluded.
Conduct Reflecting Creditably on the House
A Member, Delegate, Resident Commissioner, officer, or
employee of the House shall conduct himself at all times in a manner
that shall reflect creditably on the House. [House Rule 23, clause 1.]
Members, officers, and employees of the House must observe the broad
ethical standards articulated in the Code of Official Conduct (Rule 23) of the Rules
of the House of Representatives. The most comprehensive provision, Clause 1,
states that a ―Member, Delegate, Resident Commissioner, officer, or employee of the
House shall conduct himself at all times in a manner that shall reflect creditably on
the House.‖
60
Comm. Rule 24(d).
61
House Comm. on Standards of Official Conduct,
In the Matter of Representative E.G.
―Bud‖ Shuster
, H. Rep. 106-979, 106
th
Cong., 2d Sess. (Oct. 16, 2000) at 113;
see also
House Comm.
on Standards of Official Conduct,
In the Matter of Representative Earl F. Hilliard
, H. Rep. 107-130,
107
th
Cong., 1
st
Sess. (July 10, 2001) at xi-xii.
62
House Comm. on Standards of Official Conduct,
In the Matter of Representative Michael J.
Myers
, H. Rep. 96-1387, 96
th
Cong., 2d Sess. (Sept. 24, 1980).
63
House Comm. on Standards of Official Conduct,
In the Matter of Representative James A.
Traficant, Jr
., H. Rep. 107-594, 107
th
Cong., 2d Sess., Vols. I-VI (July 19, 2002).
General Ethical Standards
13
In interpreting Clause 1 of the Code when first adopted, the Select
Committee on Standards of Official Conduct of the 90
th
Congress noted that this
standard was included within the Code to deal with ―flagrant‖ violations of the law
that reflect on ―Congress as a whole,‖ and that might otherwise go unpunished.
64
During floor debate preceding the adoption of the Code, however, Representative
Price of Illinois, Chairman of the Select Committee on Standards of Official
Conduct, rejected the notion that violations of law are simultaneous violations of
the Code:
The committee endeavored to draft a code that
would have a deterrent effect against improper conduct
and at the same time be capable of enforcement if
violated. Initially the committee considered making
violations of law simultaneous violations of the code, but
such a direct tie-in eventually was ruled out for the
reason that it might open the door to stampedes for
investigation of every minor complaint or purely personal
accusation made against a Member. At the same time
there was a need for retaining the ability to deal with any
given act or accumulation of acts which, in the judgment
of the committee, are severe enough to reflect discredit on
the Congress. Stated purposefully in subjective language,
this standard [clause 1] provides both assurances.
65
Later in the floor discussion, another member of the Select Committee,
Representative Arends of Illinois, emphasized that the committee intended the
proposed rules to focus on official, rather than personal, conduct:
[T]he Congress has the constitutional right to determine
its own rules. And this right, too, has its limitations. The
rules are applicable only in connection with the operation
of the Congress itself. Somehow a line must be drawn as
between what is personal conduct and what is official
conduct.
66
During the 110
th
Congress, the House adopted House Resolution 451,
67
which
provided that
64
House Comm. on Standards of Official Conduct,
Report under the Authority of H. Res. 418
,
H. Rep. 1176, 90
th
Cong., 2d Sess. 17 (1968).
65
114
Cong. Rec
. 8778 (Apr. 3, 1968).
66
114
Cong. Rec
. 8785 (Apr. 3, 1968).
67
153
Cong. Rec
. 7331 (June 27, 2007).
14 HOUSE ETHICS MANUAL
[W]henever a Member of the House of
Representatives, including a Delegate or Resident
Commission to the Congress, is indicted or otherwise
informally charged with criminal conduct in a court of the
United States or any State, the Committee on Standards of
Official Conduct shall, not later than 30 days after the date
of such indictment or charge—
(1) empanel an investigative subcommittee to
review the allegations; or
(2) if the Committee does not empanel an
investigative subcommittee to review the allegations,
submit a report to the House describing its reasons for
not empanelling such an investigative subcommittee,
together with the actions, if any, the Committee has
taken in response to the allegations.
The resolution mandates some action by the Committee (either a report to
the House or the empanelment of an investigative subcommittee) whenever a
Member is charged with criminal conduct, and does not distinguish between felony
and misdemeanor criminal charges.
To date, the Committee or the House has invoked Rule 23, clause 1, in
investigating or disciplining Members for:
Failure to report campaign contributions
68
and making false statements to
the Committee
69
in connection with the Korean Influence Investigation;
70
Criminal convictions for bribery
71
or accepting illegal gratuities;
72
68
House Comm. on Standards of Official Conduct,
In the Matter of Representative John J.
McFall
, H. Rep. 95-1742, 95
th
Cong., 2d Sess. 2-3 (1978) (Count 1); House Comm. on Standards of
Official Conduct,
In the Matter of Representative Edward R. Roybal
, H. Rep. 95-1743, 95
th
Cong., 2d
Sess. 2-3 (1978) (Count 1).
69
House Comm. on Standards of Official Conduct,
In the Matter of Representative Charles
H. Wilson (of California)
, H. Rep. 95-1741, 95
th
Cong., 2d Sess. 4-5 (1978); H. Rep. 95-1743,
supra
note 66, at 3-4 (Counts 3-4).
70
See
124
Cong. Rec.
36976-84, 37005-17 (Oct. 13, 1978) (House reprimand).
71
House Comm. on Standards of Official Conduct,
In the Matter of Representative John W.
Jenrette, Jr.
, H. Rep. 96-1537, 96th Cong., 2d Sess. 4 (1980) (Member resigned); House Comm. on
Standards of Official Conduct,
In the Matter of Representative Raymond F. Lederer
, H. Rep. 97-110,
97th Cong., 1st Sess. 4, 16-17 (1981) (Member resigned after Committee recommended expulsion); H.
Rep. 96-1387,
supra
note 61, at 2, 5 (vote of expulsion). In another case, the Committee issued a
(con‘t next page)
General Ethical Standards
15
Criminal convictions for conspiring to violate the federal bribery statute,
acceptance of gratuities, obstruction of justice, conspiracy to defraud the
United States, filing false federal income tax returns, and racketeering;
73
Inflating the salaries of congressional employees in order to enable them to
pay the Member‘s personal, political, or congressional expenses;
74
Accepting gifts from persons with interest in legislation in violation of the gift
rule (Rule 43, clause 4);
75
Engaging in sexual relationships with House pages;
76
Making improper sexual advances to a Peace Corps volunteer;
77
Writing a misleading memorandum that could have influenced a personal
associate‘s probation and arranging for the improper administrative
dismissal of parking tickets;
78
Engaging in a pattern and practice of conduct in which campaign funds were
converted to personal use;
79
Statement of Alleged Violation concerning bribery and perjury, but took no further action when the
Member resigned (House Comm. on Standards of Official Conduct,
In the Matter of Representative
Daniel J. Flood
, H. Rep. 96-856, 96th Cong., 2d Sess. 4-16, 125-126 (1980)).
72
House Comm. on Standards of Official Conduct,
In the Matter of Representative Mario
Biaggi
, H. Rep. 100-506, 100
th
Cong., 2d Sess. 7, 9 (1988) (Member resigned while expulsion
resolution was pending); H. Rep. 107-594,
supra
note 63 (vote of expulsion).
73
H. Rep. 107-594,
supra
note 63.
74
House Comm. on Standards of Official Conduct,
In the Matter of Representative Charles
C. Diggs, Jr.
, H. Rep. 96-351, 96
th
Cong., 1st Sess. (1979);
see
125
Cong. Rec
. 21584-92 (July 31,
1979) (Member censured and required to make restitution);
see also
House Comm. on Standards of
Official Conduct,
Summary of Activities, 100th Cong.,
H. Rep. 100-1125, 100
th
Cong., 2d Sess. 15-16
(1989) (
In the Matter of Delegate Fofo I.F. Sunia
) (Member and aide pleaded guilty to conspiracy to
defraud the government and resigned).
75
House Comm. on Standards of Official Conduct,
In the Matter of Representative Charles
H. Wilson (of California)
, H. Rep. 96-930, 96
th
Cong. 2d Sess. 4-5 (1980);
see
126
Cong. Rec
. 13801-20
(June 10, 1980) (vote of censure); former House Rule 43 cl. 4.
76
House Comm. on Standards of Official Conduct,
In the Matter of Representative Gerry E.
Studds
, H. Rep. 98-295, 98
th
Cong., 1
st
Sess. (1983); House Comm. on Standards of Official Conduct,
In the Matter of Representative Daniel B. Crane
, H. Rep. 98-296, 98
th
Cong., 1
st
Sess. (1983);
see
129
Cong. Rec
. H5280-95 (daily ed. July 20, 1983) (Committee recommended reprimand; House voted
censure).
77
House Comm. on Standards of Official Conduct,
In the Matter of Representative Gus
Savage
, H. Rep. 101-397, 101
st
Cong., 2d Sess. 14 (1990) (Committee publicly disapproved conduct;
no House action).
78
House Comm. on Standards of Official Conduct,
In the Matter of Representative Barney
Frank
, H. Rep. 101-610, 101
st
Cong., 2d Sess. (1990) (Member reprimanded by House).
16 HOUSE ETHICS MANUAL
Violations of the House gift rule, the performance of campaign work in an
official congressional office by congressional employees on official time, and
the failure to maintain adequate records to verify the legitimacy of
expenditures of campaign funds;
80
and
Making statements that impugned the reputation of the House, failing to
cooperate fully with fact-finding being undertaken by the Chairman and
Ranking Minority Member of the Committee on Standards of Official
Conduct, threatening to retaliate against a fellow Member because of the
Member‘s vote on particular legislation, and offering a political endorsement
for a relative of a Member in exchange for vote by the Member in favor of
particular legislation.
81
A review of these cases indicates that the Committee has historically viewed clause
1 as encompassing violations of law and abuses of one‘s official position.
82
The Spirit and the Letter of the Rules
A Member, Delegate, Resident Commissioner, officer, or
employee of the House shall adhere to the spirit and the letter of the
Rules of the House and to the rules of duly constituted committees
thereof. [House Rule 23, clause 2.]
House Rule 23, clause 2, provides that Members, officers, and employees
shall adhere to the spirit and the letter of House and committee rules. The Select
Committee on Standards of Official Conduct of the 90
th
Congress recommended this
provision in part to emphasize ―the importance of the precedents of decorum and
consideration that have evolved in the House over the years.‖
83
79
H. Rep. 107-130,
supra
note 61, at 3-9 (Member‘s conduct was also found to violate
provision of Code of Official Conduct prohibiting conversion of campaign funds to personal use and
prohibiting expenditure of campaign funds that are not attributable to bona fide campaign or
political purposes.
See
House Rule 23, clause 6).
80
H. Rep. 106-979,
supra
note 61, at 6-7.
81
House Comm. on Standards of Official Conduct,
Investigation of Certain Allegations
Related to Voting on the Medicare Prescription Drug, Improvement, and Modernization Act of 2003
,
H. Rep. 108-722, 108
th
Cong., 2d Sess. (Oct. 4, 2004).
82
In one other case, the Committee never reached a determination as to whether what is now
codified as Rule 23, clause 1 would encompass a criminal conviction for contributing to the
unruliness of a minor and allegations of improper sexual advances to a congressional employee
because the Member resigned prior to the conclusion of the Preliminary Inquiry.
See
Staff of House
Comm. on Standards of Official Conduct,
In the Matter of Representative Donald E. Lukens
, 101
st
Cong., 2d Sess. (Comm. Print 1990).
83
H. Rep. 1176,
supra
note 64, at 17.
General Ethical Standards
17
Beyond this genteel goal, however, the drafters did assume that the rule
would provide a basis for congressional discipline. As summarized by Chairman
Price:
This standard was drafted also in general terms rather than
attempting to deal more specifically with such things as unfair and
dilatory legislative tactics. It did not appear practicable to the
committee to attempt to regulate these areas more closely. This
standard should provide the House the means to deal with infractions
that rise to trouble it without burdening it with defining specific
charges that would be difficult to state with precision.
84
The practical effect of Clause 2 of the Code has been to provide a device for
construing other provisions of the Code and House rules. It has been interpreted to
mean that Members, officers, and employees may not do indirectly what they would
be barred from doing directly. Individuals should thus read House rules broadly.
The Select Committee on Ethics of the 95
th
Congress cited this provision to show
that a narrow technical reading of a House rule should not overcome its ―spirit‖ and
the intent of the House in adopting that and other rules of conduct.
85
In addition to using Clause 2 as an aid to interpreting other House rules, this
Committee cited its violation in recommending expulsion for two Members
convicted in separate cases of bribery in the 96
th
and 97
th
Congresses, one Member
convicted of accepting illegal gratuities in the 100
th
Congress,
86
and one Member
convicted during the 107
th
Congress of conspiring to violate the bribery statute (18
U.S.C. § 201), accepting gratuities, obstructing justice, conspiring to defraud the
United States, filing false federal income tax returns, and racketeering.
87
Refraining From Legislative Activity After Conviction
On April 16, 1975, the House adopted an amendment to the Code of Official
Conduct pertaining to convictions. That provision, now clause 10 of Rule 23, states
that
A Member, Delegate, or Resident Commissioner who has been
convicted by a court of record for the commission of a crime for which a
84
114
Cong. Rec
. 8778 (Apr. 3, 1968);
see also
114
Cong. Rec
. 8799 (statement of
Representative Teague, member of the House Comm. on Standards of Official Conduct, 90
th
Cong.).
85
See
House Select Comm. on Ethics,
Advisory Opinion No. 4
, included as an appendix to H.
Rep. 95-1837,
supra
note 29, at 61, and in the appendices of this Manual.
86
H. Rep. 96-1387,
supra
note 62, at 5; H. Rep. 97-110,
supra
note 71, at 16 n.8; H. Rep. 100-
506,
supra
note 72, at 7.
87
H. Rep. 107-594,
supra
note 63.
18 HOUSE ETHICS MANUAL
sentence of two or more years‘ imprisonment may be imposed should
refrain from participation in the business of each committee of which
he is a member, and a Member should refrain from voting on any
question at a meeting of the House or of the Committee of the Whole
House on the state of the Union, unless or until judicial or executive
proceedings result in reinstatement of the presumption of his
innocence or until he is reelected to the House after the date of such
conviction
The Committee cited this rule in 2002 in a publicly-released letter to former
Representative James A. Traficant, Jr., following Representative Traficant‘s
conviction in a federal district court of ten felony counts related to public corruption.
Citing House Rule 23, clause 10, Representative Traficant was admonished by the
Committee that if he violated this provision he would risk disciplinary action by the
Committee and the House. The Committee advised Representative Traficant that
such disciplinary action would be in addition to any proceedings initiated in
connection with his criminal convictions. The
Congressional Record
confirmed that
other than during a vote on the House floor to postpone a vote on a resolution to
expel him from the House, Representative Traficant did not vote in the House after
the date of his criminal convictions.
This Committee‘s report on the measure noted that the Committee will not,
as a rule, take action on a complaint of a statutory violation by a Member while the
authorities charged with the statute‘s enforcement are pursuing the case. However,
where the case raises allegations of abuse of official position or where law
enforcement authorities do not appear to be acting ―expeditiously,‖ the Committee
may choose not to defer:
[W]here an allegation is that one has abused his direct
representational or legislative position — or his ―official conduct‖ has
been questioned — the committee concerns itself forthwith, because
there is no other immediate avenue of remedy. But where an
allegation involves a possible violation of statutory law, and the
committee is assured that the charges are known to and are being
expeditiously acted upon by the appropriate authorities, the policy has
been to defer action until the judicial proceedings have run their
course. This is not to say the committee abandons concern in statutory
matters — rather, it feels it normally should not undertake duplicative
investigations pending judicial resolution of such cases.
88
88
House Comm. on Standards of Official Conduct,
Policy of the House of Representatives
with respect to Actions by Members Convicted of Certain Crimes
, H. Rep. 94-76, 94
th
Cong., 1
st
Sess.
2 (1975).
General Ethical Standards
19
Even if the judicial process has not entirely run its course, such as when
appeals are pending, the House may take notice of guilty pleas or verdicts against a
Member, since the Member cannot at that point claim the presumption of
innocence. As the Committee report noted:
For the House to withhold any action whatever until ultimate
disposition of a judicial proceeding could mean, in effect, the barring of
any legislative branch action, since the appeals processes often do, or
can be made to, extend over a period longer than the two-year term of
the Member.
Since Members of Congress are not subject to recall . . . public
opinion could well interpret inaction as indifference on the part of the
House.
The Committee recognizes a very distinguishable link in the
chain of due process — that is, the point at which the defendant no
longer has claim to the presumption of innocence. This point is
reached in a criminal prosecution upon a plea of guilty or upon
conviction by a jury or by a judge (or judges) if jury trial is waived. It
is to this condition, and only to this condition, that the proposed
resolution is directed.
89
Where the gravamen of the charges is abuse of official position, the full House
may choose to take disciplinary action against a Member even though all appeals in
the criminal process have not been exhausted.
90
Thus, while a Committee rule
compels the Committee to undertake an inquiry ―with regard to any felony
conviction of a Member, officer, or employee of the House of Representatives in a
Federal, State, or local court who has been sentenced,‖
91
under the same rule, the
Committee has the discretion to initiate an inquiry at any time prior to conviction
or sentencing.
92
89
Id
.
90
See
H. Rep. 96-351,
supra
note 74; H. Rep. 96-1387,
supra
note 62. In several other cases,
Members resigned after conviction but before the House could act.
See
H. Rep. 96-1537,
supra
note
71; H. Rep. 97-110,
supra
note 71; H. Rep. 100-506,
supra
note 72; House Comm. on Standards of
Official Conduct,
Summary of Activities
,
101
st
Cong
., H. Rep. 101-995,
101
st
Cong
., 2d Sess. 12-13
(1990) (
In the Matter of Representative Robert Garcia
);
see also
H. Rep. 107-594,
supra
note 63.
91
Comm. Rule 18(e).
92
Id.
20 HOUSE ETHICS MANUAL
Code of Ethics for Government Service
The Code of Ethics for Government Service articulates broad ethical
guidelines for ―all Government employees, including officeholders.‖ The 85
th
Congress adopted this Code in 1958.
93
Among other things, the Code stresses that
any person in government service should:
Adhere to the highest moral principles;
Give a full day‘s labor for a full day's pay;
Never discriminate unfairly by dispensing special favors;
Never accept favors or benefits that might be construed as influencing the
performance of governmental duties;
Make no private promises binding on the duties of office;
Engage in no business with the Government inconsistent with the
performance of governmental duties;
Never use information received confidentially in the performance of
governmental duties for making private profit; and
Uphold the Constitution, laws, and legal regulations of the United States and
of all governments therein and never be a party to their evasion.
The Code of Ethics for Government Service was adopted as a concurrent
resolution expressing the ―sense of Congress,‖
94
rather than as a statute. This
Committee has concluded, however, that the ethical precepts set forth in this code
―represent continuing traditional standards of ethical conduct to be observed by
Members of the House at all times.‖
95
Formal charges may be brought against Members of the House for violating
this code. Among the violations charged against former Representative Traficant
during the disciplinary proceedings that led to his expulsion was that he violated
the requirement of the Code of Ethics for Government Service that Members uphold
the laws of the United States and never be a party to the evasion of those laws.
96
In
another instance, the House reprimanded a Member based on charges concerning
his use of his official position for pecuniary gain and receipt of benefits under
circumstances that might have been construed as influencing official duties. There
93
See
note 2,
supra
.
94
L. Deschler & W. Brown,
Procedure in the U.S. House of Representatives
, 97
th
Cong., 2d
Sess. 373, ch. 24, § 1.3 (4th ed. 1982).
95
H. Rep. 94-1364,
supra
note 13, at 3.
96
H. Rep. 107-594,
supra
note 63;
see also
Code of Ethics for Government Service,
supra
note
2, at ¶ 2.
General Ethical Standards
21
the Member took official actions that enhanced the value of his personal financial
holdings.
97
In another matter, the House reprimanded a Member found responsible
for permitting official resources to be diverted to his former law partner (by
allowing him use of government furniture, photocopy services, supplies, and long
distance telephone service over a nine-year period) in violation of paragraph 5 of the
Code of Ethics for Government Service and 31 U.S.C. § 1301(a) (―[a]ppropriations
shall be applied only to the objects for which the appropriations were made except
as otherwise provided by law‖).
98
Rules of Members, Officers, Supervisors, and Committees
The standards enforced by this Committee constitute a ―floor‖ of minimally
acceptable behavior. Individual Members or supervisors may set more rigorous
standards in their own offices. Therefore, employees of the House should ensure
that their behavior complies with any additional rules, regulations, or practices that
apply to the specific office or unit where they work.
Advisory Opinions
The Committee on Standards of Official Conduct urges individuals to call or
to write with any questions regarding the appropriateness of contemplated activity.
House rules authorize the Committee ―to give consideration to the request of any
Member, officer, or employee of the House for an advisory opinion with respect to
the general propriety of any current or proposed conduct of such Member, officer, or
employee.‖
99
The Ethics Reform Act of 1989 guarantees that no one may be put in
jeopardy by making such a request. Anyone who acts in good faith in accordance
with a written advisory opinion from the Committee may not then be investigated
by the Committee based on the conduct addressed in the opinion,
100
and courts may
consider reliance on such an opinion a defense to prosecution by the Justice
Department.
101
All such inquiries and their responses will be kept confidential by
the Committee.
97
H. Rep. 94-1364,
supra
note 13, at 3;
see
also
Code of Ethics for Government Service at
¶ 5.
98
House Comm. on Standards of Official Conduct,
In the Matter of Representatives Austin J.
Murphy
, H. Rep. 100-485, 100
th
Cong., 1
st
Sess. (1987).
99
House Rule 10, cl. 4(e)(1)(D).
100
2 U.S.C. § 29d(i)(4); 5 U.S.C. app. 4 § 504(b); Comm. Rule 3(j)-(k).
101
See
United States v. Hedges
, 912 F.2d 1397, 1404-06 (11th Cir. 1990); 5 U.S.C. app. 4
§ 504(b).
23
GIFTS
Overview
Congress has recognized that ―public office is a public trust.‖
1
Members of
Congress hold office to represent the interests of their constituents and the public at
large. Members are assisted in these efforts by officers and employees who are paid
from United States Treasury funds. The public has a right to expect Members,
officers, and employees to exercise impartial judgment in performing their duties.
2
The receipt of gifts or favors from certain persons or special interests may interfere
with this impartial judgment. The recipient of a gift will naturally feel grateful,
and the giver may expect favorable treatment or consideration in return.
3
A 1951 report entitled
Ethical Standards in Government
, issued by a Senate
subcommittee headed by Senator Paul H. Douglas, articulated some of the basic
concerns that arise regarding acceptance of gifts by public officials:
What is it proper to offer to public officials, and what is it proper
for them to receive? A cigar, a box of candy, a modest lunch . . . ? Is
any one of these improper? It is difficult to believe so. They are
usually a courteous gesture, an expression of good will, or a simple
convenience, symbolic rather than intrinsically significant. Normally
they are not taken seriously by the giver nor do they mean very much
to the receiver. At the point at which they do begin to mean
something, however, do they not become improper? Even small
gratuities can be significant if they are repeated and come to be
expected . . . .
Expensive gifts, lavish or frequent entertainment, paying hotel
or travel costs, valuable services, inside advice as to investments,
discounts and allowances in purchasing are in an entirely different
category. They are clearly improper. . . . . The difficulty comes in
drawing the line between the innocent or proper and that which is
1
Code of Ethics for Government Service ¶ 10, H. Con. Res. 175, 85
th
Cong., 2d Sess., 72 Stat.,
pt. 2, B 12 (1958).
2
Id
. ¶ 5.
See also
135
Cong. Rec.
H8764 (daily ed. Nov. 16, 1989) (debate on Ethics Reform
Act of 1989, quoting Paul Volcker, Chairman of the National Commission on the Public Service);
United States v. Podell
, 436 F. Supp. 1039, 1042 (S.D.N.Y. 1977),
aff'd
, 572 F.2d 31 (2d Cir. 1978).
3
See
Paul H. Douglas,
Ethics in Government
48-49 (1952).
24 HOUSE ETHICS MANUAL
designing or improper. At the moment a doubt arises as to propriety,
the line should be drawn.
4
In 1989 the House Bipartisan Task Force on Ethics articulated the additional
concern that gifts to Members may create an appearance of impropriety that may
undermine the public‘s faith in government:
Regardless of any actual corruption or undue influence upon a
Member or employee of Congress, the receipt of gifts or favors from
private interests may affect public confidence in the integrity of the
individual and in the institution of the Congress. Legitimate concerns
of favoritism or abuse of public position may be raised by disclosure of
frequent or expensive gifts from representatives of special interests, or
valuable gifts from anyone other than a relative or personal friend.
5
In a 1994 Senate committee report on a gift reform proposal, provisions
imposing special restrictions on gifts from lobbyists were justified as follows:
[I]t seems appropriate to single out registered lobbyists and
foreign agents for special treatment, because this category includes
people who are, by definition, in the business of seeking to influence
the outcome of public policy decisions. Because registered lobbyists
and foreign agents are paid to influence the actions of public officials,
including legislative branch officials, their gifts are uniquely
susceptible to the appearance that they are intended to purchase
access or influence.
6
However, as the Douglas Subcommittee also recognized, Members and staff
historically have been offered a number of gifts that do not raise any genuine
ethical concern, including relatively inexpensive gifts that are presented merely as
a souvenir of a visit or as a mark of honor or respect. Particularly where the offeror
is either a constituent or an acquaintance who is not seeking any official action from
the Member, a rule requiring Members to decline gifts of this nature could result in
needless embarrassment or hurt feelings.
4
Special Subcomm. on the Establishment of a Comm‘n on Ethics in Gov‘t, Senate Comm. on
Labor and Public Welfare,
Ethical Standards in Government
, 82d Cong., 1
st
Sess. 23 (Comm. Print
1951).
5
House Bipartisan Task Force on Ethics,
Report on H.R. 3660
, 101
st
Cong., 1
st
Sess. 6
(Comm. Print, Comm. on Rules 1989),
reprinted in
135
Cong. Rec.
30740, 30742 (1989) (hereinafter
―
Bipartisan Task Force Report
‖).
6
S. Rep. 255, 103d Cong., 2d Sess. 3-4 (1994).
Gifts
25
Since 1968 the House rules have included provisions that impose explicit
limits on the ability of Members, officers, and employees to accept gifts. This
chapter is devoted to the gift rule currently in effect. However, the gift rule also
includes a number of provisions relating to travel by Members, officers, and
employees, including travel paid by a private source, a state or local government, or
a foreign government. Those gift rule provisions are addressed in Chapter 3 on
travel.
Since 1989 there has been a statutory underpinning to the House gift rule. A
provision of the Ethics Reform Act of 1989, codified at 5 U.S.C. § 7353, generally
prohibits federal officials, including House Members and staff, from soliciting or
accepting anything of value, except as provided in rules and regulations issued by
their supervising ethics office. Under that statute, both the Committee on
Standards of Official Conduct and the House as a whole constitute the supervising
ethics office for House Members, officers, and employees. Thus, the House gift rule
defines the gifts that Members, officers, and employees may accept consistent with
the provisions of 5 U.S.C. § 7353.
Statutory Prohibitions
The statutory gift provision, 5 U.S.C. § 7353, also reflects two key
prohibitions regarding gifts that each House Member, officer, and employee should
be familiar with, as follows:
1. Never accept a gift that is linked to any official action you have taken, or
that you are being asked to take. One provision of the gift statute states, ―No gift
may be accepted [pursuant to gift rules or regulations] in return for being
influenced in the performance of an official act.‖
7
Moreover, accepting a gift in these
circumstances may constitute a serious violation of criminal law. The criminal
statutes on bribery and illegal gratuities are discussed below in the section on
―Bribery and Illegal Gratuities.‖
2. Never solicit a gift from any person who has interests before the House. 5
U.S.C. § 7353 limits not only what government officials may accept, but also that for
which they may ask. The statute provides in pertinent part:
(a) Except as permitted by [applicable gift rules or regulations], no
Member of Congress or officer or employee of the executive, legislative,
or judicial branch shall solicit or accept anything of value from a
person –
7
5 U.S.C. § 7353(b)(2)(B).
26 HOUSE ETHICS MANUAL
(1) seeking official action from, doing business with, or . . .
conducting activities regulated by, the individual's employing agency;
or
(2) whose interests may be substantially affected by the
performance or nonperformance of the individual‘s official duties.
[Emphasis added.]
While the House gift rule defines what Members, officers, and employees may
accept in the way of gifts, the rule does not authorize them to ask for any gift. The
prohibition against solicitation is very broad. It applies to the solicitation not only
of money, but ―anything of value.‖ In addition, the prohibition covers solicitations of
things for the personal benefit of the Member, officer, or employee, as well as things
that would involve no personal benefit. However, as is explained in a Standards
Committee advisory memorandum of April 25, 1997, the Committee has determined
that Members and staff may solicit on behalf of charitable organizations qualified
under § 170(c) of the Internal Revenue Code, subject to certain restrictions.
8
The
Committee will consider requests to make solicitations for other purposes, but as a
general rule, the Committee will not approve a solicitation that would result in any
personal or financial benefit to Members or staff.
Example 1.
An office is throwing a farewell party for a departing staff
member, and the office knows of individuals in the private sector, with
whom the staff member has worked, who would probably be willing to
donate refreshments. The office may not request donations from those
individuals.
Example 2.
One of the cable channels recently showed a documentary
that relates to some legislation before a committee. A committee staff
person may call the company to inquire if the committee may purchase
a tape of the show, but may not request a free copy.
Other prohibitions. Under the Code of Official Conduct, a Member, officer, or
employee is expressly prohibited from accepting any gift ―except as provided by
clause 5 of rule 25.‖
9
The Code of Official Conduct also prohibits a Member, officer,
or employee from receiving any benefit ―by virtue of influence improperly exerted
from his position in Congress.‖
10
Similarly, the Code of Ethics for Government
Service (¶ 5) admonishes every Government employee, ―Never discriminate unfairly
8
The solicitation guidelines are discussed in detail in Chapter 10 on official and outside
organizations.
9
House Rule 23, cl. 4.
10
House Rule 23, cl. 3.
Gifts
27
by the dispensing of special favors or privileges to anyone, whether for
remuneration or not; and never accept for [oneself] or [one‘s] family, favors or
benefits under circumstances which might be construed by reasonable persons as
influencing the performance of his governmental duties.‖
This Committee has cautioned all Members ―to avoid situations in which
even an inference might be drawn suggesting improper action.‖
11
Members, officers,
and employees must always exercise discretion concerning the acceptance of gifts or
favors from persons who are not relatives, and particularly gifts or favors that
would not have been offered ―but for‖ the individual‘s position in Congress. Among
the factors that one must consider are the source and value of a gift, the frequency
of gifts from one source, the possible motives of the donor, and possible conflicts of
interest with official duties.
12
Gift Rule History
The first House Code of Official Conduct, which was approved as House Rule
43 in 1968, included, in clause 4, the first House gift rule. From 1968 to 1990, the
gift rule restricted the ability of Members, officers, and employees to accept gifts
from persons with a direct interest in legislation. When the Bipartisan Task Force
on Ethics reviewed the gift rule in 1989, however, it found that standard to be
subjective and unworkable: ―It is often impractical, if not impossible, for Members
to ascertain whether a donor has a direct interest in legislation, particularly in
cases where the Member and donor have a long-standing personal relationship.‖
13
The Ethics Reform Act of 1989, as amended by the Legislative Branch
Appropriations Act for fiscal year 1992,
14
amended the rule to eliminate the need to
make this determination, and substituted instead overall limits on the value of gifts
that could be accepted from virtually anyone during a year.
From January 1, 1992, through December 31, 1995, the gift rule prohibited a
Member, officer, or employee from accepting gifts worth a total of more than $250
from any one source in any one year. However, under that rule, Members and staff
could accept a range of gifts without regard to this annual limitation, including any
11
House Comm. on Standards of Official Conduct, Investigation of Financial Transactions
Participated in and Gifts of Transportation Accepted by Representative Fernand J. St Germain, H.
Rep. 100-46, 100
th
Cong., 1
st
Sess. 3, 9, 43 (1987).
12
See
House Comm. on Standards of Official Conduct,
In the Matter of Representative
Charles H. Wilson (of California)
, H. Rep. 96-930, 96
th
Cong., 2d Sess. 4-5, 19-20 (1980).
See also In
the Matter of Representative Daniel J. Flood
, H. Rep. 96-856, 96
th
Cong., 2d Sess. 5-15 (1980).
13
Bipartisan Task Force Report
,
supra
note 5, 135
Cong. Rec.
30742.
14
Pub. L. 101-194, § 801(a), 103 Stat. 1716, 1771 (1989), as amended by Pub. L. 102-90,
§ 314(d), 105 Stat. 447, 469 (1991).
28 HOUSE ETHICS MANUAL
gift worth $100 or less, gifts of personal hospitality, and gifts from relatives.
15
Also
exempted from the annual limitation, pursuant to § 801(e) of the Ethics Reform Act,
were ―gifts of food and beverages consumed not in connection with gifts of lodging,‖
i.e.
, ―local meals,‖ without any restriction as to cost or the source of the payment.
From 1993 to 1995, proposals to tighten the gift rules were considered in both
the House and the Senate, and in late 1995, the House approved a new gift rule that
imposed significant, new limitations on the ability of Members, officers, and
employees to accept gifts.
16
That rule took effect on January 1, 1996, as House Rule
52. The rule was renumbered as House Rule 51 in the 105
th
Congress, and it was
amended and renumbered as clause 5 of House Rule 26 in the 106
th
Congress. The
report of the House Rules Committee on the proposed rule stated three reasons for
the action taken by the House in 1995:
―First, public opinion holds Congress as an institution in low esteem. Much
of the rationale for the historic decline in public trust in the institution is due
to a perception that special interest groups maintain undue influence over
the legislative process, and Members of Congress are granted perquisites and
privileges unavailable to average Americans.‖
―Second, there is a recognition that Congress has fallen behind the executive
branch in the area of gift reform. For example, executive branch employees
are permitted to accept unsolicited gifts having a market value of $20 or less
per occasion, provided that the aggregate market value of individual gifts
received from any one person shall not exceed $50 in a calendar year.‖
―Third, the Senate has already enacted a comprehensive gift ban rule,‖
referring to the action of the Senate in July 1995 in adopting a gift rule
nearly identical to that reported by the Rules Committee.
17
One of the proponents of tightening the gift rule argued that the regular
acceptance of meals and tickets from lobbyists was objectionable not merely because
it created an appearance problem. Rather, he argued, such conduct is also
objectionable because it impacts policy, albeit in a subtle and indirect way. Through
such gifts, he asserted, lobbyists ―are buying access, and access is power. . . .
[T]hey buy good will, even if they do not buy access directly. And good will is also
power. It can mean the difference between getting your calls returned or your letter
15
From January 1, 1990 through December 31, 1991, the gift rule banned the acceptance of
gifts worth more than $200 from any one source in any one year, excepting gifts worth $75 or less.
16
141
Cong. Rec.
H13073-95 (daily ed. Nov. 16, 1995);
id.
H13844-45 (daily ed. Nov. 30,
1995).
17
H. Rep. 337, 104
th
Cong., 1
st
Sess. 8 (1995).
Gifts
29
taken seriously, and that can translate to millions, even billions of dollars, at the
expense of ordinary Americans who have no lobbyists to represent them.‖
18
The gift rule approved by the House in late 1995 differed in several respects
from that approved by the Senate earlier in the year. The most significant of these
was that the House rule did not include a general provision allowing the acceptance
of gifts valued below a specific dollar figure. Instead, all of the categories of
acceptable gifts in the House rule were descriptive categories. In contrast, the
Senate gift rule that took effect on January 1, 1996, included a provision that
generally allowed the acceptance of any gift valued below $50, with a limitation of
less than $100 in gifts from any single source in a calendar year. However, as
detailed below, at the start of the 106
th
Congress in 1999, the House amended its
gift rule so as to incorporate this provision of the Senate rule.
19
The rule was
redesignated as Rule 25 in the 107
th
Congress. As is detailed below, the House
Rules for the 108
th
Congress included two amendments – one on perishable food
sent to House offices for staff, and the other on Member and staff travel to charity
events.
At the beginning of the 110
th
Congress, the House amended the gift rule in
the wake of several public corruption investigations, and subsequent prosecutions,
involving the provision of various high-priced gifts and travel to certain Members,
congressional staff, and executive branch officials by lobbyists. One of the
proponents of the gift rule amendments described their effect as follows:
Among other things, we will ban gifts, including meals and tickets,
from lobbyists and the organizations that employ them. We will ban
lobbyists and the organizations that employ them from financing
travel for Members or their staffs, except for one-day travel to visit a
site, attend a forum, participate in a panel, or give a speech, all
obviously in the pursuance of the Members‘ duties. We will require
Members and staff to obtain preapproval from the Ethics Committee
for permitted travel.
20
Specifically, the gift rule was amended to prohibit the acceptance of gifts
under the less than $50 provision ―from a registered lobbyist or agent of a foreign
principal or from a private entity that retains or employs registered lobbyists or
18
S. 885 – To Modify Congressional Restrictions on Gifts: Hearing Before the Subcomm. on
Oversight of the Senate Comm. On Governmental Affairs, 103d Cong., 1
st
Sess. 5-6 (statement of
Sen. Lautenberg).
19
145
Cong. Rec.
H208-H211 (daily ed. Jan. 6, 1999).
20
153
Cong. Rec.
H23 (daily ed. Jan. 4, 2007) (statement of Rep. Steny H. Hoyer).
30 HOUSE ETHICS MANUAL
agents of a foreign principal.‖
21
The amendment resulted in significantly limiting
the range of gifts that were previously acceptable by House Members, officers, and
employees. Changes that were made to the travel provisions of the gift rule are
discussed in Chapter 3 concerning travel.
One provision of the gift rule states that all of its provisions are to be
interpreted and enforced solely by the Standards Committee (House Rule 25, clause
5(h)). That provision also authorizes the Committee to issue guidance on any
matter contained in the rule.
The House Gift Rule
The House gift rule provides that a Member, officer, or employee may not
knowingly accept any gift except as provided in the rule. The rule is
comprehensive,
i.e.
, a House Member or staff person may not accept anything of
value from anyone – whether in one‘s personal life or one‘s official life – unless
acceptance is allowed under one of the rule‘s provisions.
As is detailed below, the rule includes one general provision on acceptable
gifts, and 23 provisions that describe additional, specific kinds of gifts that may be
accepted.
The general gift rule provision states that a Member, officer, or employee
may not accept a gift from a registered lobbyist, agent or a foreign principal,
or private entity that retains or employs such individuals. Definitions of the
terms registered lobbyist and agent of a foreign principal are provided in the
section ―Definitions of Registered Lobbyist and Agent of a Foreign
Principal.‖
22
The general provision goes on to state that a Member, officer, or employee
may accept from any other source virtually any gift valued below $50, with a
limitation of less than $100 in gifts from any single source in a calendar year.
Gifts having a value of less than $10 do not count toward the annual limit.
The other 23 categories of acceptable gifts are descriptive categories, not tied
to any specific dollar figure. Among those categories are, for example,
21
Id
. at H19, H26. The new gift rule was effective when passed. (As discussed in Chapter 3
concerning travel, amended rules concerning the acceptance of privately-sponsored, officially-
connected travel became effective on March 1, 2007.) The gift rule was amended later in the 110
th
Congress to clarify the events for which a gift of free attendance is permitted. H. Res. 437 (153
Cong.
Rec.
H5738 (daily ed. May 24, 2007)).
22
Other gifts from lobbyists and agents of a foreign principal that are expressly prohibited by
the gift rule are discussed below in the section ―Other Expressly Prohibited Lobbyist Gifts.‖
Gifts
31
informational materials, commemorative items, and free attendance at
certain kinds of events.
A gift that satisfies all of the requirements of one of the 23 specific categories
is acceptable even if its value is $50 or more, and the value of such a gift does not
count against the donor‘s annual gift limit established under the general gift
provision. A gift falling within one of these categories may be accepted even from a
registered lobbyist, agent of a foreign principal, or a private entity that retains or
employs such individuals.
Gifts from registered lobbyists, foreign agents, and private entities that
retain or employ such individuals are prohibited under the general gift rule
provision. As a result, it is impermissible for Members and staff to accept small
group and one-on-one meals, tickets to (or free attendance at) sporting events and
shows, and recreational activities, such as a round of golf, when such offers
originate from a lobbyist, the client of a lobbyist, or another prohibited source. Gifts
of these kinds are rarely acceptable under one of the 23 specific categories of
acceptable gifts. The prohibition under the general gift rule provision applies not
only to gifts given by individual registered lobbyists and foreign agents, but it also
applies to gifts given by entities that retain lobbyists or lobbying firms or entities
that employ in-house lobbyists. Members and staff should bear in mind that many,
if not most, organizations with interests before the House retain or employ
lobbyists, including corporations, trade associations, advocacy groups, unions, and
other special interest groups. Other lobbyist gifts that are expressly prohibited by
the rule are discussed below.
Discussion of each of the provisions of the House gift rule follows. A number
of them are based on provisions of the Executive Branch gift rules (5 C.F.R. Part
2635, Subpart B), which were originally issued in 1992. In applying the provisions
of the House gift rule, bear in mind that under the House Code of Official Conduct
(House Rule 23, clause 2), Members and staff must adhere not only to the letter, but
also to the spirit of the rules of the House and its committees. Technical readings of
the House gift rule should be avoided. It should also be noted that Members are
entirely free to establish and maintain, for themselves and their staff, rules on the
acceptance of gifts that are more restrictive than those set forth in the House gift
rule.
What is a Gift?
The rule defines the term ―gift‖ in an extremely broad manner:
. . . a gratuity, favor, discount, entertainment, hospitality, loan,
forbearance, or other item having monetary value. [House Rule 25, clause
5(a)(2)(A).]
32 HOUSE ETHICS MANUAL
This provision goes on to state,
The term includes gifts of services, training, transportation, lodging,
and meals, whether provided in kind, by purchase of a ticket, payment
in advance, or reimbursement after the expense has been incurred.
Accordingly, when a Member, officer, or employee is offered a tangible item, a
service, or anything else, he or she must first determine whether the item has
monetary value. If it does, then the individual may accept it only in accordance
with provisions of the gift rule. This is so even if the donor obtained the gift without
charge.
Example 3.
A Member has been invited to play golf by an
acquaintance who belongs to a country club, and under the rules of the
club, the guest of a club member plays without any fee. Nevertheless,
the Member‘s use of the course would be deemed a gift to the Member
from his host, having a value of the amount that the country club
generally charges for a round of golf.
As a general matter, mere attendance at an event such as a meeting or a
briefing will not be deemed to have monetary value, unless the sponsoring
organization charges an admission fee for the event. However, any food or
refreshments served at the event will have monetary value and may be accepted
only pursuant to one of the provisions of the gift rule. Accordingly, there may be
circumstances in which a Member may attend an event, but the Member would be
required to decline or to pay for a meal that is served at the event.
As detailed below, the restrictions of the gift rule do not apply to ―[a]nything
for which the [official] pays the market value‖ (House Rule 25, clause 5(a)(3)(A)).
Accordingly, there can be an improper gift to a Member, officer, or employee when,
for example, he or she is sold property at less than market value, or receives more
than market value in selling property. There can also be an improper gift when a
Member or staff person is given a loan at a below-market interest rate, or, in the
context of outside employment, when a Member, officer, or employee is compensated
in an amount greater than the value of the services rendered.
Who Is Subject to the Gift Rule?
In General. The rule by its terms applies to all Members, Delegates, officers,
and employees of the House, and the Resident Commissioner of Puerto Rico.
23
Under clauses 4 and 18(a) of House Rule 23, the term ―officer or employee‖ means
23
For the sake of convenience, the term ―Member‖ as used hereafter in this publication refers
to House Members, the Delegates to the House, and the Resident Commissioner.
Gifts
33
any individual whose compensation is disbursed by the Chief Administrative Officer
of the House. In addition, under clause 18(b) of House Rule 23, individuals whose
services are compensated by the House pursuant to a consultant contract are
subject to the gift rule. As a general rule, a newly elected House Member becomes
subject to the House rules when his or her pay and allowances begin: on January 3
for those elected in a regular election, and the day following a special election for
those elected to fill a vacant seat.
24
The gift rule applies with full force to every employee of the House –
employees in district offices as well as those in the Washington office; and
permanent employees as well as non-permanent employees, including part-time
employees, paid interns, and employees who are on Leave Without Pay status.
As a general matter, the gift rule does not by its terms apply to an individual
who serves in a House office without being paid by the House,
i.e.
, a volunteer,
fellow, or unpaid intern. However, the Standards Committee strongly advises that
each office using the services of such an individual require that he or she adhere to
all of the rules applicable to House employees, including the gift rule.
As to executive branch fellows, the Standards Committee understands that
they continue to be bound by the gift and travel rules of their employing agency.
Executive branch employees who are detailed to a House committee under 2 U.S.C.
§ 72a(f) should consult with both their Designated Agency Ethics Official and the
Standards Committee on the rules applicable to them.
Applicability to Spouses, Family Members, and Others. Under certain
circumstances, a gift to a family member of a Member, officer, or employee – or, for
that matter, any other individual – will be deemed a gift to the official, and hence
will be subject to the restrictions of the gift rule. Under clause 5(a)(2)(B)(i) of House
Rule 25, a gift to a family member or another individual will be deemed to be a gift
to the official when two circumstances are present:
The gift was given with the knowledge and acquiescence of the Member or
staff person; and
The Member or staff person has ―reason to believe the gift was given because
of his official position‖ with the House.
Example 4.
A Member is throwing a graduation party for her
daughter. A lobbyist who does not know the Member‘s daughter offers
24
While a newly elected House Member generally is not subject to the gift rule, a Member-
elect is subject to the statutory ethics provisions –
e.g.
, bribery, illegal gratuity.
See
18 U.S.C.
§ 201(a). For further information on these provisions is provided later in this chapter.
34 HOUSE ETHICS MANUAL
to buy the daughter a television. The television would be considered a
gift to the Member and must be declined.
Example 5.
A lawyer offers tickets to a sporting event to a Member
without charge. The Member does not want the tickets, and he
suggests instead that the lawyer give them to a friend of the Member.
In these circumstances, a gift of the tickets to the Member‘s friend
would be deemed a gift to the Member himself and would be
permissible only if the Member himself could accept the tickets under
the gift rule.
However, a different rule (House Rule 25, clause 5(a)(2)(B)(ii)) applies when a
meal is provided to a Member or staff person and his or her spouse at the same time
and place. Under this provision, when a meal is provided to a Member or staff
member and his or her spouse or dependent at the same time and place, only the
value of the meal provided to the Member or staff member is treated as a gift and
counts against the dollar limitations of this provision.
Additionally, the statutory limitations on accepting certain gifts from a
foreign government or an international organization are also applicable to a spouse
or dependent of a Member or employee.
Gifts Valued at Less Than $50
A Member, officer, or employee may accept a gift, other than cash or cash
equivalent, having a value of less than $50, provided that the source of the gift is
not a registered lobbyist, foreign agent, or private entity that retains or employs
such individuals. The cumulative value of gifts that may be accepted from any one
source in a calendar year must be less than $100. Gifts having a value of less than
$10 do not count toward the annual limit. While the rule does not require Members
and staff to maintain formal records of the gifts accepted under this provision, the
rule does require that Members and staff make a good faith effort to comply with its
terms (House Rule 25, clause 5(a)(1)(B)).
The figures of $50, $100, and $10 are actually dollar limits of, respectively,
$49.99, $99.99, and $9.99. Gifts of ―cash or cash equivalent‖ are not acceptable
under this provision. Hence, under this provision, one may not accept a gift of cash
or, for example, a check, use of a credit card, or a security, even if the gift would be
within the stated dollar limitations. The Standards Committee has determined
that gift cards which are redeemable for purchases at a retail establishment or
restaurant are the equivalent of cash and therefore may not be accepted under the
gift rule.
Definitions of Registered Lobbyist and Agent of a Foreign Principal. The gift
rule defines the term ―registered lobbyist‖ as ―a lobbyist registered under the
Gifts
35
Federal Regulation of Lobbying Act or any successor statute,‖ and the term ―agent
of a foreign principal‖ as ―an agent registered under the Foreign Agents
Registration Act‖ (House Rule 25, clause 5(g)).
With regard to registered lobbyists, the Lobbying Disclosure Act of 1995
(Pub. L. 104-65) is a successor statute to the Federal Regulation of Lobbying Act.
The Lobbying Disclosure Act in turn defines the term ―lobbyist‖ to mean ―any
individual‖ who engages in certain activities set forth in the act. 2 U.S.C.
§ 1602(10). Accordingly, the Committee interprets the prohibitions on registered
lobbyists that are set forth in the gift rule to apply to the individuals who are
registered as lobbyists under that Act, as well as to lobbying firms.
Application of the Rule in Specific Circumstances
In accepting any gift under the general gift rule provision, a Member, officer,
or employee must comply with the following interpretative rules:
No ―Buydowns.‖ A Member or staff person may not ―buy down‖ the value of a
gift in order to bring it within the dollar limitations of the provision.
Example 6.
A staff member taken to a restaurant by a local
businessman may not order an expensive meal and simply pay his host
the amount by which the bill for his food and beverages exceeds
$49.99. If the bill for his food and beverages exceeds $49.99, he must
pay the entire bill himself.
Example 7.
A Member is offered a skybox ticket to a baseball game
valued at $60. The Member may not accept the ticket simply by
paying the offeror $11. If the Member wishes to accept the ticket, he
must pay the offeror $60.
Example 8.
During the year, a staff member has accepted meals and
other gifts from a corporation that does not retain or employ lobbyists
or registered foreign agents, each of which had a value of $10 or more,
and the cumulative value of which is $85. The staff member may not
then accept a meal having a value of $20 from that corporation simply
by paying the corporation $6. Instead, he must either decline the meal
or personally pay its cost in full.
However, when an individual is offered a gift with a value of $50 or more that
is naturally divisible – such as multiple tickets to an event, or bottles of wine – the
individual may accept one or more items that total less than $50 in value and either
pay market value for or decline the others.
36 HOUSE ETHICS MANUAL
Example 9.
A staff person is offered four tickets to a baseball game,
each having a value of $15. The staff person may accept three of the
tickets, but he must either decline or pay the full price of the fourth
ticket.
The ―Source‖ of a Gift. A gift received from an individual affiliated with an
organization counts against the annual gift limitation of both the individual and the
organization.
Example 10.
A committee staff person accepts a lunch valued at $15
from a representative of a nonprofit organization that does not retain
or employ lobbyists or registered foreign agents. Both the
representative and the organization are deemed to be the ―source‖ of
the lunch, and the annual gift limit of both for that staff person will be
reduced accordingly.
―Simultaneous Gifts.‖ Generally, when multiple items, each individually
worth less than $50, are offered simultaneously to any individual, the ―gift‖ being
offered is deemed to be the aggregate of all the items.
Example 11.
A corporation that does not retain or employ lobbyists or
registered foreign agents sends a Member a box of samples of its
products. The box includes 6 products, each of which has a value of
about $10.00. The box cannot be accepted under this provision, as its
total value exceeds the per-gift limit of less than $50.
Valuation of Gifts. Under the gift rule, items are generally valued at their
retail, rather than wholesale, price. The lowest price at which an item is available
to the public may be used. However, for the purpose of simplicity, tax that would be
imposed on the sale of the item, as well as gratuities, are excluded in determining
the value of any gift.
For further information on the valuation of gifts – including tickets to
sporting events and shows – see the section below entitled ―Pay Market Value for
the Gift.‖
Recipient of a Gift. At times a question may arise as to who is the recipient
of a gift: a Member or individual members of his or her staff. As a general matter,
this question is to be decided according to the expressed intent of the donor. Thus,
for example, when an individual delivers several tickets to a sporting event to an
office and indicates that the tickets are for use by the staff, the tickets are treated
as a gift to each individual staff person who uses them, rather than as a single gift
to the Member. If, however, the donor indicates that the tickets are for the
Member‘s use, all of the tickets will be treated as a gift to the Member.
Gifts
37
Another example concerns the delivery of perishable food, such as pizza, to a
House office for consumption by staff. In such an instance, the gift of food sent to a
House office is deemed to be a gift to the individual recipients, and not to the
employing Member. Thus, when a private source sends perishable food to a House
office for staff, each staff member may accept food having a value of up to $49.99,
subject to the following restrictions and limitations –
If the source of the gift of food is a registered lobbyist, agent of a foreign
principal, or private entity that retains or employs such individuals, the food
may not be accepted. Because it is often a lobbyist or client of a lobbyist that
is the source of the food being sent to a House office, Members and staff
should exercise caution before accepting the food. Even if the food is from a
permissible source, the following limitations must be observed.
Each staff member must comply with the annual gift limitation of less than
$100 from any source in a calendar year. Any gift having a value of less than
$10 does not count against the annual limitation. In order to comply in good
faith with the dollar limitation on gifts, a staff member who is offered such a
gift of food must learn both the identity of the donor and the dollar value of
the food provided.
25
While, as noted above, the gift rule provides that a gift valued at less than
$10 is generally acceptable, the Committee has long advised that to accept
such a gift from one source on a repetitive basis is contrary to the spirit of the
gift rule, and hence is not permissible under the House Code of Official
Conduct.
26
Accordingly, it would be impermissible for a staff member to
accept gifts of perishable food, even if valued at less than $10 each, from any
one source on a repetitive basis.
The Committee has also long advised that a gift of food sent to a House office
for staff, even if within the dollar limits of the gift rule, must be refused if the
person offering it has a direct interest in the particular legislation or other
official business on which staff is working at the time. In addition to possibly
violating the gift rule restriction on accepting lobbyist gifts, as discussed
above, the gift of food may also be considered an improper gratuity or
inducement to take a particular action.
While the gift rule sets out the categories of gifts that a Member of staff
person may accept if offered, Members and staff are generally prohibited
25
It is important to bear in mind that a gift from an individual who is employed by or
similarly affiliated with any organization is deemed to be a gift from both that individual and the
affiliated organization, as discussed in the text above.
26
House Rule 23, cl. 2.
38 HOUSE ETHICS MANUAL
from soliciting gifts. Accordingly, a Member or a staff person may never
request or suggest that anyone send a gift of food to a House office.
Members and staff should also note that this gift rule provision (House Rule
25, clause 5(a)(1)(B)) does not affect the prohibition against accepting food or
beverages from any private organization or individual for any event sponsored by a
House office, such as a meeting, a conference, or a briefing. A separate rule (House
Rule 24, clause 1 to 3) generally prohibits Members and staff from accepting private
subsidy for official House business, including events sponsored by a Member,
committee or leadership office, a caucus, or any other House office.
On the other hand, when a House office fields a sports team in, for example, a
local softball league or joins with others in fielding a team, and an outsider offers to
sponsor the team by providing caps, T-shirts, or other benefits to team members, a
different application of the gift rule applies. In such a case, the benefits provided to
the staff members are treated as one gift to the employing Member, valued at their
total fair market retail value. Any such gift is acceptable only if its total value is
less than $50 (and the gift is not from a lobbyist or entity that employs a lobbyist),
and the Member may not accept gifts from that source having a value of $100 or
more in a calendar year. In addition, with regard to sponsorship of a House office
team, an offer of an outsider to pay any league entry fee may not be accepted.
Adhering to the Spirit of the Rule. Under the House Code of Official
Conduct, Members and staff must adhere to the spirit as well as the letter of the
Rules of the House (House Rule 23, clause 2). To repeatedly accept gifts valued at
under $10 from a source would violate the spirit of the gift rule and hence be
impermissible.
Relationship of the General Provision on Acceptable Gifts to the Specific Provisions
When a gift satisfies each of the requirements of any of the specific provisions
of the gift rule on acceptable gifts – for example, a book under the ―informational
materials‖ provision (House Rule 25, clause 5(a)(3)(I)) – the gift may be accepted
even if its value is $50 or more. Furthermore, in that circumstance, the value of the
gift does not count against the donor‘s annual gift limitation of less than $100.
In addition, the gift rule does not restrict Members and staff from accepting,
even when the donor is a registered lobbyist, agent of a foreign principal, or private
entity that retains or employs such individuals, gifts that fall within one of the
specific gift rule provisions (often referred to as the ―exceptions‖ to the rule) or
general waivers the Standards Committee has issued. Those specific provisions are
discussed below.
Gifts
39
Other Acceptable Gifts
The various specific categories of gifts that Members, officers, and employees
may accept under the gift rule are set forth in clause 5(a)(3) of House Rule 25.
These categories may be summarized as follows.
Gifts Given on the Basis of Personal Friendship
A Member, officer, or employee may accept any gift that is given by an
individual on the basis of personal friendship, unless the official has reason to
believe that, under the circumstances, the gift was provided because of his or her
official position with the House, and not because of the personal friendship (House
Rule 25, clause 5(a)(3)(D)). However, a gift exceeding $250 in value – including, for
example, a trip – may not be accepted on the basis of personal friendship unless the
Standards Committee issues a written determination that the personal friendship
provision applies (House Rule 25, clause 5(a)(5)).
This provision of the gift rule further states that in determining whether a
gift is provided on the basis of personal friendship, a Member or staff person must
consider the circumstances under which the gift was offered, such as (1) the history
of the official‘s relationship with the donor, including any previous exchange of gifts,
(2) whether, to the official‘s knowledge, the donor personally paid for the gift, or
whether the donor sought a tax deduction or business reimbursement for it, and (3)
whether, to the official‘s knowledge, the donor at the same time gave the same or
similar gifts to other Members or staff.
The word ―friend‖ may be used in different ways, and at times this provision
of the gift rule has been mischaracterized as requiring Members and staff to decide
who is, and who is not, a ―friend.‖ Instead, when a Member or staff person wishes
to rely on this provision of the rule, the individual must consider each gift
individually – whether the gift is a meal, tickets to a game, or anything else – and
the individual must determine whether that particular gift was offered ―on the basis
of personal friendship.‖ That determination is to be made using the criteria set
forth in the rule.
When the offeror is a lobbyist or someone else who has interests before
Congress, Members, officers, and employees have the most reason to be concerned
about whether a gift is offered for a reason other than personal friendship. In that
circumstance, the criteria set forth in the rule are especially helpful. For example,
if the gift was paid for by a business or will be charged to a firm or corporate credit
card – as opposed to being paid for out of the offeror‘s own pocket – it is likely that
the gift is based on business concerns, rather than personal friendship.
27
Likewise,
27
See
H. Rep. 337, 104
th
Cong., 1
st
Sess. 13 (1995).
40 HOUSE ETHICS MANUAL
if, in a relationship, all of the gifts have gone to the Member or staff person, and
there has not been reciprocal gift giving, it is likely that the gifts have a business
purpose. Thus, when a Member or staff person is offered a gift by a lobbyist or
someone else who has interests before Congress and either of these circumstances is
present (
i.e.
, the gift is not paid for personally, or there has not been reciprocal gift-
giving), the official should not accept the gift on the basis of the personal friendship
provision. Unless the gift is acceptable under another provision of the gift rule, the
Member or staff person should either decline the gift or pay for it personally.
Example 12.
A Member‘s former college roommate, who is also a
lobbyist, offers to take the Member to a baseball game. The college
roommate had paid for the Member‘s ticket personally, and the
Member‘s family and the roommate‘s family often exchange presents
during the holidays. The roommate does not contact the Member on
official matters. The Member may accept the ticket.
Example 13.
Through her House work over the years, a committee
staff person has come to know a lobbyist. The staff person often sees
the lobbyist at officially-related events, but they do not see each other
socially or exchange gifts. The lobbyist offers to take the staff person
to dinner at the lobbyist‘s expense. The staffer may not accept the
dinner. However, the staff person may accompany the lobbyist to the
restaurant and pay for her own meal and drinks.
As noted above, when a Member, officer, or employee wishes to accept a gift
on the basis of the personal friendship provision, and the value of the gift exceeds
$250, the official must first obtain the written approval of the Standards
Committee. This requirement may apply when, for example, one wishes to accept a
friend‘s invitation to go on a vacation trip.
28
The Standards Committee will grant written approval for a personal
friendship gift exceeding $250 in value only in response to a written request. The
request should identify the donor and briefly describe the donor‘s line of work and
any interests before Congress, the history of the relationship, and the nature of the
gift. The request should also state whether the donor will be paying for the gift
personally. Under Committee Rule 3(i), the Committee keeps confidential any such
request and the Committee‘s response. (Indeed, this confidentiality requirement
applies to any advisory opinion request made by a Member, officer, or employee and
the response thereto.) However, as noted below in the section on ―Gift Disclosure,‖
Members and officers, as well as employees who are required to file a Financial
28
However, gifts from one‘s fiancé or fiancée are acceptable under the rule‘s provision on
gifts from relatives, and so the requirements of the personal friendship provision need not be
observed regarding those gifts.
Gifts
41
Disclosure Statement, will have to disclose any gift exceeding $335 in value on their
statement, unless the Committee grants a waiver of the reporting requirement.
Attendance at Events (Including Meals)
Under provisions of the gift rule and related general waivers granted by the
Standards Committee, Members, officers, and employees may accept invitations to
the following kinds of events, provided that certain requirements are satisfied:
A ―widely attended‖ event, when the individual‘s attendance is in connection
with the performance of his or her official duties;
A charity fundraising event;
A fundraising or campaign event sponsored by a political organization;
An educational event sponsored by a university, foundation, or similar
nonprofit, nonadvocacy organization; or
A regularly scheduled event sponsored by a constituent organization.
Members and staff can accept a meal at these kinds of events, provided that
the applicable requirements are satisfied. The circumstances in which an invitation
to these events may be accepted are detailed below. One common limitation in
these gift rule provisions and waivers is that invitations can be accepted only from
the organization that is actually sponsoring the event. An invitation may not be
accepted from an individual or organization that merely bought a block of tickets to
or a table at the event.
―Widely Attended‖ Events. The gift rule provision on widely attended events
can apply to a broad range of events: a convention, conference, symposium, forum,
panel discussion, dinner, viewing, reception,
29
and similar events (House Rule 25,
clause 5(a)(4)(A)). An unsolicited offer of free attendance
30
at such an event can be
accepted when three requirements are satisfied: (1) The event is ―widely attended,‖
as defined below, (2) the invitation came from the sponsor of the event, and (3) the
attendance of the Member or staff person is related to his or her official duties.
As to the first of these requirements, the Standards Committee has
determined that an event is ―widely attended‖ if (a) there is a reasonable
29
However, when an event, such as a reception, will involve only ―[f]ood or refreshments of a
nominal value offered other than as a part of a meal,‖ Members and staff may participate in it under
a separate provision of the gift rule, described below, even if the reception does not satisfy the
requirements for a widely attended event.
30
The items encompassed in the term ―free attendance‖ as used in the gift rule are described
below.
42 HOUSE ETHICS MANUAL
expectation that at least 25 persons, other than Members, officers, or employees of
Congress, will attend the event, and (b) attendance at the event is open to
individuals from throughout a given industry or profession, or those in attendance
represent a range of persons interested in a given matter.
31
Individuals who are
officials of other branches or levels of government count toward the required
minimum of twenty-five, but spouses and others who accompany the congressional
members and staff do not count toward the required minimum.
The types of events that typically satisfy this first requirement are Chamber
of Commerce and Rotary Club lunches and dinners, and meetings of the
membership of trade or professional associations.
Example 14.
One of the departments of a large corporation has a
weekly staff meeting and luncheon that is attended by at least 30
employees. These meetings do not constitute a widely attended event
as that term is used in the gift rule, however, because attendance at
the event is not open to individuals from throughout a given industry
or profession, and those present do not represent a range of persons
interested in a given matter.
As to the second requirement, the term ―sponsor‖ refers to the person, entity,
or entities that are primarily responsible for organizing the event. An individual or
entity that merely contributes money to an event is not considered to be a sponsor of
the event for purposes of the gift rule. Elaboration on this requirement appears
below, in the section entitled ―Source of Invitations for Widely Attended and
Charity Events.‖
The third requirement is satisfied when (a) the Member, officer, or employee
will be participating in the event by speaking or performing a ceremonial role, or (b)
he or she determines that attendance at the event is appropriate to the performance
of his or her official duties or representative function. The responsibility for making
this determination rests with the invited Member or officer, or the invited employee
and the employing Member, but the determination must be made in a reasonable
manner. Some relevant factors might include the opportunity to meet with
constituents at the event, the desirability of representing one‘s constituency at an
event where other elected or appointed officials will be present, or the opportunity
to present or receive information that is pertinent to one‘s district or to a legislative
proposal. With regard to a staff member, the nature of the individual‘s duties in the
office will be a relevant factor. For example, attendance at a dinner sponsored by
an environmental organization may well be appropriate for a staff member who
31
See
H. Rep. 337, 104
th
Cong., 1
st
Sess. 12 (1995).
Gifts
43
handles environmental issues, but not for a staff member who handles banking
issues only.
In deciding whether attending an event would be appropriate to the
individual‘s official duties, one must also bear in mind the legislative history of the
gift rule, which states that an event may not be merely for the personal pleasure or
entertainment of the Member or staff person.
32
Accordingly, an invitation that
would involve nothing more than viewing a sporting event, a movie, or a show will
rarely be acceptable under the widely attended event provision.
Example 15.
Knowing that a district office staff person is a fan of his
team, the owner of a local sports team offers the staff person free
tickets to an upcoming game. Even though the source of the tickets
would be the event sponsor, and there will be far more than 25
individuals in attendance at the game, the staff person may not accept
the tickets under the widely attended event provision, in that his
attendance would bear no relationship to the performance of his official
duties.
Example 16.
A new concert hall is opening in Member A‘s district.
The symphony invites a number of officials, including Member A, to
attend the inaugural concert, sit in a place of honor, and be recognized
for their help in making the new hall a reality. In view of the
circumstances, Member A may reasonably determine that it is
appropriate to his official duties or representative function to attend,
and that hence the invitation is acceptable under the widely attended
event provision.
Example 17.
Member B has announced that this will be her last term
in office. In honor of her career, a group of corporations and
associations is hosting a dinner for her, to which hundreds of people
from the private and public sectors, including many House Members
and staff, will be invited. Those who deem their attendance at the
dinner to be appropriate to their official duties or representative
function may accept an invitation to the dinner from the host
committee.
When the requirements of the widely attended event provision are satisfied, a
Member or staff person may also accept a sponsor‘s unsolicited offer of free
attendance at the event for an accompanying individual (House Rule 25, clause
5(a)(4)(B)). While the accompanying individual need not be the spouse or child of
32
H. Rep. 337, 104
th
Cong., 1
st
Sess. 12 (1995).
44 HOUSE ETHICS MANUAL
the invitee – it may be, for example, a friend or a colleague – the rule provides for
only one accompanying individual. Thus, for example, an invitee may not accept an
offer of free attendance for both a spouse and child under this provision.
Charity Fundraising Events. Subject to the restrictions noted below, a
Member, officer, or employee may accept an unsolicited offer of free attendance
33
at
a charity event (House Rule 25, clause 5(a)(4)(C)). This provision extends to charity
events such as lunches, dinners, golf or tennis tournaments, races, and cook-offs.
The purpose of the charity event provision of the gift rule is to enable Members and
staff ―to lend their names to legitimate charitable enterprises and otherwise
promote charitable goals.‖
34
The requirements that apply to attendance at such
events are as follows.
First, in order to be a ―charity event‖ as that term is used in the rule, the
primary purpose of the event must be to raise funds for an organization that is
qualified under § 170(c) of the Internal Revenue Code to receive tax deductible
contributions. Thus, the mere fact that a donation to a charity will result from an
event does not necessarily mean that a Member or staff person may accept from the
sponsor an offer of free attendance at, or travel expenses to, the event. An event
will likely be deemed a ―charity event‖ for purpose of the rule when the participants
or attendees pay an admission fee, and more than half of the fee paid is tax
deductible as a charitable donation. When an event has any other format, a
Member or staff person considering attending the event should first consult with
the Standards Committee to ensure that it constitutes a ―charity event‖ for
purposes of the gift rule.
Example 18.
Each year a business pays for a golf outing for several of
its employees and their guests, and if there are any funds left after
payment of expenses, it donates the excess to charity. This outing
would not qualify as a charity event for purposes of the rule because its
primary purpose is not to raise funds for charity.
Example 19.
A lobbying firm wishes to hold a dinner for Members and
staff, at which it will announce that the firm has made a substantial
donation to charity. The dinner would not qualify as a charity event
for purposes of the rule because its primary purpose is not to raise
funds for charity.
33
The items encompassed in the term ―free attendance‖ as used in the gift rule are described
below.
34
H. Rep. 337, 104
th
Cong., 1
st
Sess. 12 (1995).
Gifts
45
Example 20.
For the same reason, the regular performances of a
theater that is organized under § 501(c)(3) of the Tax Code are not
deemed to be charity events. However, such an entity may have a
special fundraising performance that would qualify as a charity event.
Second, as noted above, Members and staff may accept an invitation to a
charity event only from the sponsor of the event. As with widely attended events,
the sponsor of a charity event is the person or persons primarily responsible for
organizing the event, and a person who simply contributes money or buys tickets to
an event is not considered a sponsor of that event. This matter is elaborated on
below, in the section entitled ―Source of Invitations for Widely Attended and
Charity Events.‖
Third, Members and staff invited to attend a charity event may accept local
transportation from the event sponsor. In addition, when certain requirements are
satisfied, they may also accept reimbursement for travel and lodging in connection
with a charity event. Those requirements are discussed in Chapter 3 on travel.
Before accepting travel to a charity event, a Member or staff person should make
inquiry to the charitable organization to ensure that it understands the applicable
rules and is acting consistently with them.
―Free Attendance‖ for Purposes of Widely Attended and Charity Events. The
gift rule provides that when the requirements set forth above are satisfied,
Members, officers, and employees may accept ―free attendance‖ at the event. As
used in the rule, free attendance includes ―waiver of all or part of a conference or
other fee, the provision of local transportation, or the provision of food,
refreshments, entertainment, and instructional materials furnished to all attendees
as an integral part of the event.‖ (House Rule 25, clause 5(a)(4)(D)). However, this
term does not include either ―entertainment collateral to the event,‖ or ―food or
refreshments taken other than in a group setting with all or substantially all other
attendees‖ (
id.
), which therefore may not be accepted under the gift rule.
Example 21.
In connection with its annual meeting in Washington, an
association will hold a banquet and has arranged for the attendees to
see a show at a downtown theater. Upon invitation from the
association, a Member may attend the banquet if the requirements for
a ―widely attended‖ event are satisfied. However, he may not attend
the show under this provision, in that it is not part of the banquet, but
is instead entertainment that is collateral to that event.
Example 22.
A charity will be holding a fundraising reception, and
immediately after the reception the charity will hold a dinner to which
only certain VIP‘s will be invited. A Member may accept an invitation
46 HOUSE ETHICS MANUAL
from the charity to attend the reception under the charity event
provision, but he could not attend the dinner under that provision.
At times at charity fundraising events in particular, the sponsor may offer
attendees a souvenir, gift, or prize. A Member or staff person may accept a baseball
cap or T-shirt from the event sponsor under the ―item of nominal value‖ provision of
the gift rule, which is summarized below. In addition, under the general provision
on acceptable gifts, as explained above, the official may also accept an item that has
a value of less than $50 (provided that the sponsor is not a lobbyist, foreign agent,
or employer of such an individual, and the official has not accepted other gifts from
the sponsor that would cause the annual gift limit of less than $100 per source to be
exceeded). When a Member or staff person is accompanied at a charity event by a
spouse or dependent, the official should bear in mind that any such gifts given to
the accompanying individual are deemed to be gifts to the official and count against
the gift rule dollar limits applicable to that official.
Source of Invitations for Widely Attended and Charity Events. The gift rule
is clear that Members, officers, and employees may accept an invitation to a widely
attended or charity event only from the sponsor of the event. The report of the
House Rules Committee on the gift rule defines the term ―sponsor‖ as follows:
The term ―sponsor of the event‖ refers to the person, entity, or entities
that are primarily responsible for organizing the event. An individual
who simply contributes money to an event is not considered to be a
sponsor of the event.
35
Accordingly, under the gift rule, the term ―sponsor‖ has a definition that is
narrower than the manner in which it is commonly used. Often the large financial
supporters of an event are termed as ―sponsors‖ of the event. However, such
entities are not sponsors of an event for purposes of the gift rule unless they also
have a substantial role in organizing the event.
36
Example 23.
Foundation A, a § 501(c)(3) organization under the Tax
Code, organizes a $1,000-per-plate fundraising dinner to support its
charitable activities. Member B may accept complimentary tickets to
the dinner from Foundation A, for himself and his spouse, under the
charity event provision.
35
Id
.
36
Sound guidance on the possibility of multiple sponsors for an event was provided in a
Senate committee report on an earlier version of the gift rule. ―[T]here may be more than one
sponsor of an event if more than one entity plays a significant, active role in organizing the event in
a manner that is roughly comparable to another sponsor or sponsors.‖ S. Rep. 255, 103d Cong., 2d
Sess. 14 (1994).
Gifts
47
Example 24.
Corporation C buys a table at the fundraising dinner of
Foundation A. Member B may not accept tickets to the dinner from
Corporation C under the charity event provision. In accordance with
the previous example, Member B may accept tickets from Foundation
A, and if it chooses to do so, Foundation A may seat B at the
corporation‘s table.
Contributors to a widely attended or charity event may request that the
sponsor invite particular Members or staff to sit with them at the event. However,
the invitation will not be acceptable under these provisions unless the sponsor
retains ultimate control of the guest list and the seating arrangements, and the
invitation neither references any contributor nor is extended by anyone other than
the sponsor. Put another way, all communications with Members or staff regarding
the event should be made by the event sponsor, because a communication from an
event contributor may be deemed an impermissible invitation from the contributor.
The Standards Committee has made an exception to the above rules on the
proper source of invitations for the large media-related events that take place in
Washington, such as the White House Correspondents‘ Dinner sponsored by the
Correspondents‘ Association. Traditionally invitations to those events are extended
not by the sponsoring organization, but instead by journalists or news organizations
that are members of the sponsoring organization. Accordingly, the Committee has
granted a general gift rule waiver to enable a House Member or staff person to
accept an offer of free attendance at one of these media-related events from a
journalist or a news organization that is a member of the media organization
sponsoring the event.
Fundraising or Campaign Events Sponsored by Political Organizations.
Members, officers, and employees may accept food, refreshments, and other benefits
provided by a political organization in connection with a fundraising or campaign
event sponsored by that organization (House Rule 25, clause 5(a)(3)(G)(iii)). Under
this provision, Members, officers, and employees may also accept transportation
and lodging from the sponsoring political organization in connection with such an
event, provided that the travel rules are observed. In addition, they may
participate in a golf tournament or attend a show or sporting event sponsored by
the political organization, provided that the event is a bona fide fundraiser. The
term ―political organization‖ is defined in this provision by reference to § 527(e) of
the Internal Revenue Code.
37
37
Briefly stated, under that statute, a political organization is an entity organized and
operated primarily for the purpose of accepting contributions or making expenditures for the purpose
of influencing the election of any individual to a public or political office.
48 HOUSE ETHICS MANUAL
Under this provision of the gift rule, like the provisions concerning widely
attended and charity fundraising events, Members and staff may accept an
invitation only from the event sponsor. They may not accept a ticket from a person
that has simply donated money or purchased tickets to the event.
In addition, a meal with a lobbyist or other individual during which the
individual gives a Member a campaign contribution is not a fundraising or
campaign event under this provision of the gift rule, unless the meal is sponsored
and paid for by a political organization, and the expenditures are reported as
required by Federal Election Commission regulations or applicable state or local
laws.
Example 25.
Members and staff may accept complimentary tickets to
a Republican National Committee fundraising dinner from the RNC.
Example 26.
A political action committee buys a table at a DCCC
fundraising dinner. A House staff member may not accept a ticket to
the dinner from the PAC under this provision of the gift rule.
Educational Events. Soon after the gift rule took effect, the Standards
Committee recognized that there are certain events that are worthwhile for
Members or staff to attend, but that do not meet the numeric requirement for
widely attended events (
i.e.
, at least 25 non-congressional attendees). Among such
events are those designed for a small group in order to facilitate discussion.
Accordingly, the Committee granted a general gift rule waiver allowing Members
and staff to accept invitations to events (including meals offered as part of these
events) that, while they do not meet the numeric requirement for widely attended
events, are:
Educational (for example, lectures, seminars and discussions); and
Sponsored by universities, foundations, ―think tanks,‖ or similar nonprofit,
nonadvocacy organizations.
As under the gift rule provisions summarized above regarding events,
Members and staff may accept such an invitation from the event sponsor only.
In keeping with the gift rule‘s intent, this waiver does not extend to meals in
connection with presentations sponsored by lobbyists, lobbying firms, or advocacy
groups. Moreover, this waiver does not extend to meals in connection with
legislative briefings or strategy sessions, even if the sponsoring entity has
educational status under the Tax Code.
Example 27.
A nonpartisan, nonprofit ―think tank‖ hosts a luncheon
series featuring distinguished speakers from academia discussing
Gifts
49
foreign policy topics. The organization invites about 15 individuals to
each luncheon, including some House staff members. The staff
members may attend and accept the lunch under this waiver.
Example 28.
A trade association establishes a nonprofit educational
foundation. The foundation sponsors a monthly forum at which
experts from the field explain aspects of their industry and the
ramifications of various legislative proposals for that industry. A
dozen House staff members are invited to these presentations, which
occur over lunch. The staff members may attend, but they may not
accept the lunch under the terms of this waiver. This is so because
these events are legislative briefings, and as noted above, this waiver
does not extend to such events.
Events With Constituent Organizations. The Standards Committee has also
recognized that the gift rule was not intended to interfere with Members carrying
out their conventional representational duties, and that meetings or events with
constituent organizations may sometimes be attended by only a few constituents,
particularly when the organization is from a state with a small or diffuse
population. Such events may not satisfy the numeric requirement for widely
attended events.
Accordingly, the Committee has also granted a general waiver for Members
and staff to accept free attendance (including meals) at meetings or events
sponsored by constituent organizations, regardless of the number of constituents in
attendance or the location of the event, provided that the meeting or event is:
Regularly scheduled (such as an annual visit to Washington, D.C.);
Related to the official duties or representative function of the Member or
employee attending the event; and
Open to members of the constituent organization (as opposed to only officers
or board members).
Examples of constituent organizations covered by this waiver include, but are
not limited to, civic associations, senior citizens organizations, veterans groups, and
business, trade or professional associations (
e.g.
, associations of lawyers, nurses,
bankers, teachers, or farmers).
Example 29.
A civic association in a small town in Member A‘s district
invites him to one of its periodic luncheon meetings of its membership.
If the Member determines that his attendance would be related to his
official duties or representative function, he may attend and accept the
lunch under this waiver.
50 HOUSE ETHICS MANUAL
Example 30.
A veterans group in Member B‘s district invites her to a
Veterans Day dinner with its members at the local VFW hall. If B
determines that her attendance would be related to her official duties
or representative function, she may attend and accept the dinner.
Example 31.
The real estate agents association of a state holds its
annual Washington ―fly-in.‖ All members of the association are
invited, and usually about 20 agents come. One of the events on the
agenda is a dinner for the congressional delegation. Each delegation
member who determines that attendance would be related to his or her
official duties or representative function may attend and accept the
dinner.
Example 32.
A real estate agent comes to Washington for the
association ―fly-in‖ described in the previous example. He is the only
agent from Member C‘s district who makes the trip, and he would like
to have lunch with his representative. Since the lunch is not an
association event, the Member cannot accept the lunch under this
waiver.
Food or Refreshments of a Nominal Value (Attendance at Receptions)
Members and staff frequently receive invitations to attend events that are
less elaborate or formal than the ones for which a sponsor‘s offer of free attendance
may be accepted under one of the gift rule exceptions or general waivers the
Committee has issued for events which include a
meal
(
i.e.
, widely attended events,
charity fundraising events, fundraising or campaign events sponsored by a political
organization, educational events, and regularly scheduled events sponsored by a
constituent group). These events may take different forms but often are in the
setting of a business meeting, reception (including a holiday or other social event),
or similar gathering that includes
nonmeal
food items and drinks. In these
circumstances, Members and staff should consider whether the invitation may be
accepted under the gift rule exception for ―[f]ood or refreshments of a nominal value
offered other than as a part of a meal‖ (House Rule 25, clause 5(a)(3)(U)). However,
several limitations of this provision should be noted.
Questions will arise as to whether it is permissible to accept nominal value
food or refreshments offered
other
than in a business meeting, reception, or similar
setting. In its report prior to the original enactment of this provision in 1995, the
House Rules Committee indicated that the exception covers ―reception food.‖
38
Soon
38
See
H. Rep. 104-337, 104
th
Cong., 1
st
Sess., at 11 (1995) (―Food and refreshments of
nominal value not offered as part of a meal (reception food)‖).
Gifts
51
after the new gift rule was adopted, the Committee indicated that the types of food
that could be accepted under the provision include ―coffee and donuts, hors
d‘oeuvres at a reception.‖
39
In 2000, the Standards Committee issued further
written guidance that specifically described the kinds of food and refreshments that
may be accepted under the provision, including coffee, juice, pastry, or bagels
usually offered at a breakfast reception or meeting, and hors d‘oeuvres, appetizers,
and beverages usually offered at an evening reception.
40
Also in this regard, the intent of the gift rule enacted at the beginning of the
110
th
Congress to ban most gifts from lobbyists and organizations that employ them
should be taken into account. Accordingly, food and refreshments of the nature
described above may be accepted under this provision only when offered at a
business meeting, reception, or similar gathering. It is now impermissible, for
example, for a Member or staff person to accept food or refreshments under this
provision in a one-on-one setting with a registered lobbyist.
41
Even if offered in an appropriate setting, food or refreshments that exceed ―a
nominal value‖ may not be accepted under this provision. The rule does not define
―nominal value,‖ and Members and staff are accordingly cautioned to exercise
reasonable judgment in accepting food or refreshments having a value greater than
the examples given above.
Furthermore, the provision does not allow the acceptance of a meal, or of food
or refreshments offered as part of a meal. Thus even a low-cost meal (for example,
sandwiches or hot dogs) may not be accepted under this provision.
Example 33.
A trade association invites House staff to attend a
holiday reception in its offices featuring hors d‘oeuvres and drinks.
Provided that the food and refreshments are of ―nominal value‖ and
offered ―other than as part of a meal,‖ House staff may attend the
reception and accept these items.
39
House Comm. on Standards of Official Conduct,
New Gift Rule
, at 3 (Dec. 7, 1995).
40
House Comm. on Standards of Official Conduct,
Gifts and Travel
booklet, at 32 (April
2000).
41
Under the gift rule in effect prior to the 110
th
Congress, it was permissible for Member and
staff to accept gifts, including food and refreshments, from virtually any individual or organization
under the less than $50 provision of the gift rule (subject to the cumulative limit of less than $100
from a single source in a calendar year), even if the source was a registered lobbyist, agent of a
foreign principal, or a private entity that retains or employs such individuals. As a result, it was not
necessary for the Committee to determine the context in which this provision applied. With the gift
rule amendments in the 110
th
Congress, the Committee has concluded that the provision allows
acceptance of such food and drink only at business meetings, receptions, or similar events. The
Committee intends that this determination be applied prospectively only, given the absence of
previous definitive guidance on this point.
52 HOUSE ETHICS MANUAL
Example 34.
A lobbyist invites a staff person out for a cup of coffee to
discuss the status of a pending bill. The staff person is free to meet
with the lobbyist, but because the occasion is not a reception the staff
person may not accept a cup of coffee from the lobbyist even though the
item is of low cost and offered other than as a part of a meal.
Meal or Local Transportation Incident to a Visit to a Business Site
The Standards Committee has recognized that at times in the course of
performing one‘s official duties at House expense, a Member or staff person will be
offered a
de minimis
amount of food or transportation as a courtesy. For example,
one might be offered a meal in the company cafeteria while touring a facility in
one‘s district, or a ride from the airport to a site being visited as part of a
committee-sponsored trip. In the Committee‘s view, the acceptance of such
occasional, incidental courtesies does not violate the spirit of the gift rule.
Accordingly, the Committee has granted a general waiver of the gift rule to enable a
Member, officer, or employee to accept the following items incidental to legitimate
official activity:
Food or refreshments, including a meal, offered by the management of a site
being visited, (1) on that business‘s premises, and (2) in a group setting with
employees of the organization; and
Local transportation, outside of the District of Columbia, provided by the
management of a site being visited in the course of official duties, between
the airport or other terminus and the site, or at the site being visited (
e.g.
, in
connection with a tour of a large manufacturing facility).
However, this waiver does not extend to car service made available from the
same source on a regular basis, transportation in the District of Columbia, or meals
at the Washington, D.C.-area offices of lobbying or law firms.
In addition, acceptance of a meal or transportation incident to a business site
visit will not be deemed to violate the prohibition against private subsidy of official
activities (House Rule 24, clauses 1 to 3). In this regard, it should be stressed that
this waiver applies when a Member or staff person is traveling in the Member‘s own
district, or is traveling elsewhere at House expense. As is detailed in the
Committee guidance on the travel rules, when a Member or staff person is taking
an officially related trip at the expense of a private source consistent with the
provisions of the gift rule, it is generally permissible to may generally accept meals
and transportation from that source without regard to the limitations noted above.
However, when officially related travel is appropriately paid for by a private source,
all of the expenses paid by the private source must be publicly disclosed.
Gifts
53
An Item of Nominal Value
Members, officers, and employees may accept ―[a]n item of nominal value
such as a greeting card, baseball cap, or a T-shirt‖ (House Rule 25, clause
5(a)(3)(W)). Through the 105
th
Congress, the Committee permitted Members and
staff to accept a variety of low value, tangible items under this provision. With the
adoption of the general gift rule provision at the start of the 106
th
Congress,
however, the Committee determined that such a reading of the nominal value
provision was no longer appropriate. Accordingly, as a general matter, Members
and staff should not rely on the nominal value provision in accepting any item
having a value of $10 or more, except for the items that are explicitly referred to in
that provision (
i.e.
, a baseball cap or a T-shirt).
Example 35.
A baseball team in a Member‘s district sends the office
eight of its baseball caps along with a letter suggesting that one be
given to the Member and to each staff person who wants one. The
Member and the staff persons may each accept one of the caps under
the nominal value provision.
Commemorative Items
―A plaque, trophy, or other item that is substantially commemorative in
nature and that is intended for presentation‖ may be accepted (House Rule 25,
clause 5(a)(3)(S)). There are several points to note regarding this provision.
First, in contrast to other provisions of the gift rule, this one refers to
―presentation,‖ and thus the concept of the provision is that there will be an in-
person presentation of the item to the Member or staff person.
Second, in order to be acceptable under this provision, an item must be
―substantially commemorative in nature.‖ Usually there is little question as to the
commemorative nature of a plaque or trophy.
42
As to other items that may be
presented to a Member or staff person at an event – for example, an expensive pen
or a crystal bowl – such items are not commemorative in nature merely because
they were presented at an event. Instead, in order to fall within this provision, an
item must have some commemorative characteristic or feature. It would be
impossible to enumerate all of the features that would cause an item to be deemed
commemorative, but an item that is inscribed or engraved with the Member‘s name,
the name of the presenting organization, and the date of the presentation will likely
be deemed commemorative in nature.
42
A separate provision of the gift rule, described below, applies to bona fide public service
awards presented to Members or staff.
54 HOUSE ETHICS MANUAL
Finally, as a general matter, the items acceptable under this provision may
not have significant utilitarian or artistic value. Thus, for example, a television
would not be acceptable under this provision, no matter how elaborate an
inscription appears on the television. The types of items that can be accepted under
this provision, if commemorative in nature by reason of an inscription or otherwise,
include a framed photo or print, a figurine, or a clock.
When a Member or staff person is presented with an item of unusually high
value, or receives information that a group intends to present an item of such value,
the official should contact the Standards Committee for guidance. A
commemorative item that exceeds $335 in value will have to be disclosed on
Schedule VI of one‘s annual Financial Disclosure Statement (see the section on ―Gift
Disclosure‖ below).
Example 36.
After a Member speaks at an event, the sponsoring
organization presents him with an expensive pen that is inscribed with
his name only. Because the inscription is limited to the Member‘s
name, the pen is not commemorative in nature and thus may not be
accepted.
Example 37.
A Member visits an Indian tribe, and during her visit,
the tribal leaders present her with a blanket that was handmade by
members of the tribe. Because the blanket has a traditional tribal
design, the Member may accept it as a commemorative item.
Example 38.
An aircraft manufacturer in a Member‘s district sends
the Member, through the mail, a high-quality model of one of the
airplanes it builds. While the Member probably could have accepted
the model as a commemorative item had it been presented to him in
person, he may not accept it under this provision since it was merely
mailed to him.
Books, Periodicals, and Other Informational Materials
A Member, officer, or employee may accept ―[i]nformational materials that
are sent to [his or her] office . . . in the form of books, articles, periodicals, other
written materials, audiotapes, videotapes, or other forms of communication‖ (House
Rule 25, clause 5(a)(3)(I)). The purpose of this provision is to ensure that Members
have access to information sources or reference tools useful in the conduct of official
duties. Several points should be noted regarding informational materials.
First, under long-standing Committee guidance, a subscription to a periodical
may be accepted only from the publisher or distributor of the periodical. In other
words, Members and staff may not accept a gift subscription that was paid for by a
third party.
Gifts
55
Second, the provision specifies that informational materials ―sent to the
office‖ may be accepted. The intent of this language is that a Member or staff
person may not accept, under this provision, an additional courtesy copy of a
publication that is sent to his or her home.
43
The intent of that language is not to
preclude acceptance of a book or other appropriate informational material at, for
example, a reception or other event.
Third, while the provision allows acceptance of a set of materials (such as, for
example, a PBS documentary on alternative energy sources), it does not permit
acceptance of specialized reporting services or other collections that are periodically
updated, such as the U.S. Code annotated or an encyclopedia.
Fourth, at times a Member is offered multiple copies of a book or similar item
for the purpose of distributing the copies to his or her colleagues or others. As a
general matter, a Member may accept multiple copies of an item in these
circumstances, provided that the copies are intended for distribution to a particular
audience and are not for the Member‘s unrestricted use, and provided further that
the item was not created especially for the Member.
Finally, at times a Member, officer, or employee may be offered computer
software. Neither application software (
e.g.
, Microsoft Word or WordPerfect),
developmental software (
i.e.
, software that enables one to generate or edit code), nor
entertainment software is acceptable under this provision of the gift rule, as such
materials do not constitute informational materials within the meaning of this
provision. Informational software may be acceptable, but only if the database is
entirely self-contained, such as on a compact disc. Software that provides access to
a database that otherwise is available only on a subscription basis (
e.g.
, LEXIS-
NEXIS or Westlaw) is not acceptable under this provision. However, demonstration
or evaluation copies of software that a business generally makes available to
prospective customers may be acceptable under a different gift rule provision (see
the section below entitled ―Widely Available Opportunities and Benefits‖).
Things Paid for by the Federal Government, or by a State or Local Government
―Anything that is paid for by the Federal Government, by a State or local
government, or secured by the Government under a Government contract‖ is
acceptable (House Rule 25, clause 5(a)(3)(O)). This is a broad provision, which
extends to tangible items of all kinds, as well as meals, services, and travel –
provided, however, that the gift is paid for by a government agency or entity.
Insofar as this provision concerns in-kind services provided by a federal, state, or
local government agency, this provision mirrors the Standards Committee‘s
43
H. Rep. 337, 104
th
Cong., 1
st
Sess. 11 (1995).
56 HOUSE ETHICS MANUAL
interpretation of the ban on unofficial office accounts (House Rule 24, clauses 1 to 3)
under which Members and staff may accept in-kind services and functions from
government agencies for official House activities.
Example 39.
A state university in a Member‘s district offers the
Member tickets to an upcoming home game of one of its teams. The
Member may accept the tickets under this provision. (However, as a
general matter, sporting event tickets may be accepted from a private
university only under the general provision on acceptable gifts,
i.e.
, if
their value is less than $50, and the private university does not retain
or employ lobbyists.)
The ―paid for by‖ language of this provision is especially important. Thus,
under this provision, Members and staff may not accept a gift from a government
agency when the gift was donated to the agency by a third party, and the agency is
merely acting as a conduit. In addition, Members and staff may not accept, under
this provision, a meal or other gift that is paid for by an outside consultant or
lobbyist for a government agency – even though the cost of the gift will ultimately
be reimbursed by the government.
44
Questions may arise as to whether a particular entity, such as an airport
authority, port authority, or public utility, is a government agency for purposes of
this provision. An entity is a government agency for purposes of this provision only
if, under the law, it is treated as a government agency for other purposes. For
example, an interstate compact entered into by the State of Maryland, the
Commonwealth of Virginia, and the District of Columbia, which was also approved
by Congress, established the Washington Metropolitan Area Transit Authority (or
WMATA) as a governmental agency, with funding derived from the federal
government and state governments, as well as from rider fares. In addition, the
Committee has determined that the Tennessee Valley Authority is a governmental
agency.
45
Conversely, federal law provides that Amtrak is not a department,
agency, or instrumentality of the United States government (49 U.S.C.
§ 24301(a)(3)), and thus Amtrak is not a government agency for purposes of this gift
rule provision. Similarly, the Committee has concluded that the regional Federal
Home Loan Banks are private entities under the House gift rule. The Committee‘s
staff should be consulted for guidance on the status of a particular entity.
The commonwealths and territories of the United States are deemed to be
part of the federal government and hence are treated as government entities.
44
Id
.
45
The Committee has also determined that certain quasi-municipal corporations,
e.g.
, the
Metropolitan Water District of Southern California, are governmental agencies under state law.
Gifts
57
However, Indian tribes are not treated as a state or local government for
purposes of the gift rule. The Standards Committee considered this matter
carefully and found nothing in the legislative history of the current gift rule or its
predecessors indicating an intent to treat Indian tribes as state or local government
entities for these purposes.
The language of this provision regarding things secured by the government
under a government contract applies, by its terms, only to things secured under a
contract of the federal government. This language was derived from a comparable
provision of the gift regulations that govern the Executive Branch (5 C.F.R.
§ 2635.203(b)(7)). The stated intent of that provision was to cover only items that
―the Government procures for use by its employees under a Government contract or
knowingly obligates itself to pay for‖ (57 Fed. Reg. 35,014 (1992)) – for example, a
health club membership that the owner of a building in which the federal
government leases space makes available to building tenants.
Gifts From Foreign Governments and International Organizations
Members, officers, and employees may accept ―[a]n item, the receipt of which
is authorized by the Foreign Gifts and Decorations Act, the Mutual Educational and
Cultural Exchange Act, or any other statute‖ (House Rule 25, clause 5(a)(3)(N)).
Special rules apply to gifts from foreign governments. The Constitution
prohibits federal government officials, including Members and employees of
Congress, from receiving ―any present . . . of any kind whatever‖ from a foreign
state or a representative of a foreign government without the consent of the
Congress.
46
Congress has consented, through the vehicles of the Foreign Gifts and
Decorations Act (―FGDA‖)
47
and the Mutual Educational and Cultural Exchange Act
(―MECEA‖)
48
, to the acceptance of certain gifts from foreign governments. The
FGDA defines ―foreign government‖ to include not only foreign governments
per se
,
but also international or multinational organizations whose membership is
composed of units of foreign governments, and any agent or representative of such a
government or organization while acting as such.
49
That Act also covers gifts from
―quasi-governmental‖ organizations closely affiliated with, or funded by, a foreign
government.
46
Art. I, § 9, cl. 8.
47
5 U.S.C. § 7342.
48
22 U.S.C. § 2458(a).
49
5 U.S.C. § 7342(a)(2)(B).
58 HOUSE ETHICS MANUAL
MECEA and the FGDA provisions concerning the acceptance of travel and
travel expenses are addressed in the Committee‘s guidance on the travel provisions
of the gift rule.
In addition to its travel provisions, however, the FGDA authorizes House
Members, officers, and employees to accept ―a gift of minimal value tendered and
received as a souvenir or mark of courtesy.‖
50
Under implementing regulations
issued by this Committee,
51
the term ―minimal value‖ as used in the Act is currently
defined, by reference to a statutory formula, as $335.
52
This provision on minimal value gifts clearly applies to gifts of tangible items.
In addition, the Standards Committee has interpreted this provision to permit
Members and staff to accept, from a foreign government, meals, entertainment, and
local travel in the United States when related to official duties. However, since
providing lodging in the United States is not normally viewed as within the realm of
diplomatic courtesy, it may not be accepted. Similarly, the Committee‘s
interpretation does not allow the acceptance of such meals, entertainment, or local
travel offered by a lobbyist or agent of a foreign government, because such gifts are
not properly deemed as having been ―tendered as a souvenir or mark of courtesy‖ as
required by the FGDA.
Example 40.
An embassy in Washington has invited a Member to
attend a dinner at the embassy. The Member may accept the
invitation under the minimal value provision of the FGDA.
Example 41.
An embassy official in Washington has invited a staff
member to lunch at a local restaurant to discuss pending legislation
concerning his country. The staff member may accept the invitation
under the minimal value provision of the FGDA.
Example 42.
An attorney who is a registered foreign agent has invited
a staff member to lunch to discuss pending legislation concerning his
client. The staff member may not accept the lunch.
The FGDA further allows a Member or staff person to accept (but not to
retain) a gift of more than minimal value, as defined above, when refusal of the gift
―would likely cause offense or embarrassment or otherwise adversely affect the
50
5 U.S.C. § 7342(c)(1)(A).
51
The Committee‘s implementing regulations are issued pursuant to 5 U.S.C.
§ 7342(a)(6)(A), (g)(1) and apply to House Members and staff. The regulations were first published
on Jan. 23, 1978 (124
Cong. Rec.
452-53) and are reprinted in their current form in the appendix.
52
5 U.S.C. § 7342(a)(5)(A); 73 Fed. Reg. 7475 (Feb 8, 2008).
Gifts
59
foreign relations of the United States.‖
53
Such gifts, however, are deemed to be
accepted on behalf of the United States and become the property of the United
States. Within 60 days of accepting such a gift, a Member or staff person must turn
the gift over to the Clerk of the House for disposal or, with the consent of this
Committee, the recipient may retain the gift for display in his or her office or other
official use.
54
At the time such a gift is deposited for disposal or official use, the recipient
must also complete and sign a foreign gifts disclosure form, and file it with the
Standards Committee.
55
Copies of the form are available from the Committee office
or its website, www.house.gov/ethics. If a Member or employee is uncertain
whether the value of a gift exceeds ―minimal value‖ as defined above, the Clerk‘s
office can arrange for an appraisal.
56
Under the Committee‘s foreign gifts
regulations, the disclosure statements filed by Members and employees are publicly
available at the Committee‘s office, and their contents are published annually in the
Federal Register
.
57
Additionally, the FGDA allows a Member or employee to accept a gift of an
educational scholarship or medical treatment from a foreign government.
58
Furthermore, the FGDA applies not only to Members and employees but also
to the spouse or dependant of a Member or employee.
59
Benefits Resulting from Outside Business and Other Activities
Subject to two restrictions that are described below, Members, officers, and
employees may accept benefits (including food and refreshments) that result from
any of the following activities:
Outside business or employment activities of the Member or staff person;
Other outside activities of the Member or staff person that are not connected
to the duties of the individual as an officeholder; or
Outside business or employment activities of the spouse of the Member or
staff person.
53
Id.
§ 7342(c)(1)(B).
54
Id.
§ 7342(c)(2), (a)(6)(A).
55
Id.
§ 7342(c)(3).
56
Id.
§ 7342(g)(2)(B), (a)(6)(A).
57
Id.
§ 7342(f).
58
Id.
§ 7342(c)(1)(B).
59
Id
. § 7342(a)(1)(G).
60 HOUSE ETHICS MANUAL
The restrictions on the acceptance of such benefits are that (1) the benefits
may not have been offered or enhanced because of the official position of the
Member or staff person, and (2) they must be benefits that are ―customarily
provided to others in similar circumstances‖ (House Rule 25, clause 5(a)(3)(G)(i)).
(This provision also allows the acceptance of transportation and lodging under the
same terms.)
This is a common-sense provision that allows Members and staff to accept
things of value that essentially have nothing to do with their position with the
House, but instead are the result of outside business or other activities. However,
before accepting anything under this provision, a Member or staff person must be
satisfied that the benefit was neither offered nor enhanced because of his or her
official position. The provision also requires that the benefit be one that is
―customarily provided to others in similar circumstances.‖
Example 43.
A Member serves, on an uncompensated basis, as a
member of the board of directors of a nonprofit organization. The
board holds monthly dinner meetings, and the organization also
provides each director with a free subscription to its monthly
publication. The Member may attend the dinner meetings and accept
the subscription.
Example 44.
The spouse of a staff member is a partner in a law firm
that leases a skybox in a pro football stadium. Each partner may
attend games with his or her spouse or a guest. The staff member may
attend games with his spouse.
Example 45.
A Member who was a star tennis player as a youth is
invited to a banquet honoring retired greats. The Member may accept.
Example 46.
A pro sports team has established an ―honorary board of
advisers,‖ which is to be composed largely of government officials from
the area, and it has asked the local Member to join. Each member of
the honorary board will be given season tickets for the team‘s home
games. While the Member may join the honorary board if he chooses,
he may not accept the season tickets under this provision, because in
effect the tickets are being offered because of the Member‘s official
position.
As a related matter, Members and staff are also allowed to accept benefits
(including food, refreshments, and travel) ―customarily provided by a prospective
employer in connection with bona fide employment discussions‖ (House Rule 25,
clause 5(a)(3)(G)(ii)).
Gifts
61
Example 47.
During the course of employment discussions with a
lobbying firm, a staff member is offered use of the firm‘s beach condo
for a weekend. Unless the firm has a history of making the same offer
to comparable prospects in the private sector, the offer is not
acceptable under this provision.
Questions in this area can also arise in connection with a severance package
that a Member, officer, or employee may receive from a former employer that is
separate from or in addition to continuing participation in a pension or other
employee welfare or benefit plan (
see
House Rule 25, clause 5(a)(3)(H)). Such
packages may take any number of forms, and they may include the award of a
performance bonus or the retention of benefits accrued through an incentive
program, but generally they are awarded based on services rendered to an outside
employer prior to the individual‘s congressional service. A severance package may
be accepted if it meets the following criteria: (a) The former employer regularly
gives its employees a severance package as part of the individual‘s compensation for
services performed; (b) the package constitutes compensation for services the
individual performed prior to employment with the House; (c) the package is no
greater than that given to similar employees who do not work for the House; and (d)
the monetary value of the package has in no way been enhanced because of the
individual‘s employment with the House. Any severance package that is not offered
along these lines would raise concerns that the benefits being conferred involve an
improper gift.
60
Personal Hospitality of an Individual
A Member, officer, or employee may accept a gift of personal hospitality of an
individual, except from a registered lobbyist or an agent of a foreign principal
(House Rule 25, clause 5(a)(3)(P)).
61
This provision incorporates the definition of the
term ―personal hospitality‖ that is provided in § 109(14) of the Ethics in
Government Act:
[H]ospitality extended for a non-business purpose by an individual, not
a corporation or organization, at the personal residence of that
60
Furthermore, a severance package or other post-employment benefit (such as participation
in a partnership‘s retirement plan) may implicate provisions of the federal criminal code. For
example, 18 U.S.C. § 203, prohibits federal employees (including House Members, officers, and staff)
from accepting, ―directly or indirectly,‖ compensation for representational services before federal
agencies. Members and employees should consult the Committee staff for guidance concerning the
application of this provision to their particular circumstances.
61
The definitions of the terms ―registered lobbyist‖ and ―agent of a foreign principal‖ as used
in the gift rule are provided above in the section ―Definitions of Registered Lobbyist and Agent of a
Foreign Principal.‖
62 HOUSE ETHICS MANUAL
individual or his family or on property or facilities owned by that
individual or his family.
When the requirements of this provision are satisfied, a Member or staff
person may accept, for example, a meal at an individual‘s residence, and may also
accept lodging. It is not required that the host be present; thus, use of a personally
owned vacation home is permissible even if the owner is not present. However, this
provision does not allow the acceptance of either meals or entertainment outside the
home, or travel expenses. In addition, in order for this provision to apply, the
property or facilities must be personally owned. Property or facilities owned by a
corporation or a firm may not be used under this provision, even if the corporation
or firm is wholly owned by an individual. Likewise, as a general rule, a residence or
other property that the individual owner rents out to others or otherwise uses for
business purposes may not be used under this provision.
The aspect of the rule requiring that the personal hospitality be for a ―non-
business purpose‖ should also be noted. Thus, when an individual invites a
Member or staff person to a dinner at the individual‘s home for the purpose of
discussing pending legislation, the invitation may not be accepted under this
provision. Similarly, the provision does not apply when the expenses that an
individual incurs in providing personal hospitality are either to be reimbursed by a
business, or deducted as business expenses.
62
Example 48.
Mr. and Mrs. Z (neither of whom is a registered lobbyist
or foreign agent) invite Member A and spouse to spend the weekend
with them at their home. Provided that there is no business purpose
for the visit, the Member may accept under this provision.
Example 49.
A Member receives an invitation from an individual (who
is neither a registered lobbyist nor a foreign agent) to spend a week at
a vacation home. The Member may accept if (1) the home belongs to
the host personally (as opposed to a corporate employer), (2) the costs
of the visit will not be reimbursed by an employer or deducted from
taxes as a business expense, and (3) there is no business purpose for
the visit.
Example 50.
An individual (who is neither a registered lobbyist nor a
foreign agent) invites a Member to spend the weekend with him at his
condominium in Aspen. The individual offers to fly the Member out on
his private plane and to pay for his ski rentals and lift tickets. While
62
Bipartisan Task Force Report
,
supra
note 5, 135
Cong. Rec.
30743.
Gifts
63
the Member may accept the weekend lodging, the travel and ski
expenses are not acceptable under this provision.
As noted above, Members and staff may not accept personal hospitality from
a registered lobbyist or foreign agent under this provision. However, it is possible
for the benefits encompassed in the personal hospitality provision – for example, a
meal or lodging at a private home – to be accepted from a lobbyist or foreign agent
under the personal friendship provision of the gift rule.
63
The restrictions on the
acceptance of things of value under the personal friendship provision are described
above, and as is noted there, Members and staff must be especially cautious in
relying on the personal friendship provision where the offeror is a registered
lobbyist or foreign agent.
Briefly stated, a Member or staff person may accept such hospitality from a
lobbyist or foreign agent under the personal friendship provision of the gift rule
when the following circumstances are present: (1) All of the requirements of the
personal hospitality provision are satisfied, including that the property is
individually owned, and that there is no business purpose underlying the offer, (2)
in addition, there is a history of reciprocal gift exchange between the offeror and the
Member or staff person, and (3) if the value of the hospitality exceeds $250, the
advance, written approval of the Standards Committee is obtained. The acceptance
of hospitality from a registered lobbyist or foreign agent exceeding $335 in value
must be reported on Schedule VI of one‘s annual Financial Disclosure Statement.
Contributions to a Legal Expense Fund, and Pro Bono Legal Services
A Member, officer, or employee may accept ―a contribution or other payment
to a legal expense fund established for the benefit of [the official] that is otherwise
lawfully made in accordance with the restrictions and disclosure requirements of
the Committee on Standards of Official Conduct‖ (House Rule 25, clause 5(a)(3)(E)).
However, such a contribution or other payment may not be accepted from a
registered lobbyist or an agent of a foreign principal (House Rule 25, clause
5(e)(3)).
64
The Committee issued Legal Expense Fund Regulations in an advisory
memorandum dated June 10, 1996, which is reprinted in revised form in the
appendix. Those regulations generally prohibit Members and staff from soliciting
or receiving donations to pay legal expenses without the prior written permission of
63
See
H. Rep. 337, 104
th
Cong., 1
st
Sess. 11 (1995).
64
The definitions of the terms ―registered lobbyist‖ and ―agent of a foreign principal‖ as used
in the gift rule are provided at the beginning of this chapter.
64 HOUSE ETHICS MANUAL
the Committee.
65
It should be noted that this prohibition generally applies to in-
kind donations – including pro bono legal services – as well as cash donations.
However, as detailed below, Members and staff may accept pro bono legal
assistance for certain purposes without Committee permission.
Merely because a Member or staff person is incurring or will incur legal
expenses does not necessarily mean that the individual may establish a fund to
defray those expenses. Under the Committee‘s regulations, a fund may be
established only when the legal expenses arise in connection with one of the
following matters:
The individual‘s candidacy for or election to federal office;
The individual‘s official duties or position in Congress (including a matter
before the Standards Committee);
A criminal prosecution; or
A civil matter bearing on the individual‘s reputation or fitness for office.
The Committee will not grant permission to establish a fund when legal
expenses arise in connection with a matter that is primarily personal in nature,
such as a matrimonial action.
The rules governing the operation of a Legal Expense Fund include the
following. A fund must be established as a trust, administered by a trustee who is
entirely independent of the Member or staff person who is the trust‘s beneficiary.
No contribution may be solicited for or accepted by a fund prior to the Committee‘s
written approval of the completed trust document and the trustee. Trust funds can
be used only to pay legal expenses, or the expenses incurred in soliciting for or
administering the trust. Excess funds must be returned to the contributors. A fund
may not accept more than $5,000 in a calendar year from any individual or
organization, but in accordance with the gift rule, no contribution may be accepted
from a registered lobbyist or foreign agent. A fund may not pay for legal services for
anyone other than the named beneficiary except with the Committee‘s written
permission. Written Committee permission is also required for any amendment of
the trust document and any change in the trustee.
The regulations also require extensive public disclosure regarding each Legal
Expense Fund. After the Committee has approved a trust document, the
beneficiary must file a copy of it with the Legislative Resource Center (Room B-106,
65
The only donations that may be solicited or received without prior permission are
donations from relatives, and donations of up to $250 that are given on the basis of personal
friendship (as discussed above).
Gifts
65
Cannon House Office Building) for public disclosure. In addition, reports on
contributions to and expenditures from a fund must be filed with both the
Committee and with the Legislative Resource Center on a quarterly basis.
Contributions exceeding $335 in a calendar year from any source (other than a
relative of the beneficiary) must also be reported on Schedule VI of the beneficiary‘s
annual Financial Disclosure Statement (see the section on ―Gift Disclosure‖ below).
As to pro bono legal assistance, a Member, officer, or employee may accept
such assistance without limit for the following purposes:
To file an amicus brief in his or her capacity as a Member of Congress;
To participate in a civil action challenging the validity of any federal law or
regulation; or
To participate in a civil action challenging the lawfulness of an action of a
federal agency, or an action of a federal official taken in an official capacity,
provided that the action concerns a matter of public interest, rather than a
matter that is personal in nature.
Acceptance of pro bono legal assistance for any other purpose is permissible only
with Committee authorization pursuant to an advisory opinion, or as a contribution
to a Committee-approved legal expense fund.
In certain circumstances, campaign funds may also be used to pay legal
expenses. The Federal Election Commission has issued a number of advisory
opinions on this matter pursuant to its rules barring personal use of campaign
funds (11 C.F.R. Part 113). Both the Standards Committee and the FEC should be
consulted before campaign funds are used to pay any legal expenses.
―Home State‖ Products
A Member may accept ―[d]onations of products from the district or State that
the Member . . . represents that are intended primarily for promotional purposes,
such as display or free distribution, and are of minimal value to any single
recipient.‖ (House Rule 25, clause 5(a)(3)(V)). Several points to bear in mind
regarding this provision are as follows:
This provision applies to tangible items only. Thus, for example, tickets to a
museum or a show in a Member‘s district may not be accepted under this
provision.
To be acceptable under this provision, an item must be produced or grown in
the Member‘s home state.
66 HOUSE ETHICS MANUAL
If the item is to be distributed for free, it must be of ―minimal value‖ – candy
bars, apples, and peanuts that are produced or grown in a Member‘s state are
common examples.
The provision applies not only to small items that can be given away, but also
to home-state items that can be displayed in the office – for example, a
Christmas tree grown in the Member‘s home state.
The provision allows acceptance of items ―that are intended primarily for
promotional purposes.‖ Accordingly, any give-away items must be available
to office visitors, and not merely to Members and staff. Likewise, any display
item must be placed in the reception area of the office.
Honorary Degrees and Nonmonetary Public Service Awards
Honorary degrees are acceptable, as are travel, food, refreshments, and
entertainment that are provided in connection with the award of an honorary
degree (House Rule 25, clause 5(a)(3)(K)). In addition, under the same provision of
the gift rule, ―bona fide, nonmonetary awards presented in recognition of public
service‖ are acceptable, along with food, refreshments, and entertainment provided
in connection with the presentation of such awards.
This provision allows only the acceptance of a ―bona fide‖ award – a condition
that is particularly significant when the award is an item having significant
monetary value, such as a crystal sculpture. In determining whether an award is
indeed ―bona fide,‖ among the important considerations are the nature of the
awarding organization, whether the award is made as part of an established
program and has been made on a regular basis, whether in the past non-
congressional individuals have been recipients of the award, and whether there are
specific, written criteria for the selection of the awardees. If the award is an item
that exceeds $335 in value, and the recipient is a Member or officer, or an employee
who files a Financial Disclosure Statement, the award must be disclosed on
Schedule VI of the individual‘s filing for the year in which the award was received
(see the section on ―Gift Disclosure‖ that follows).
A public service award that consists of an amount of money is not acceptable
under this provision. Similarly, where an award includes both an item and an
amount of money, the monetary aspect of the award is not acceptable under this
provision. A Member, officer, or employee who is offered a public service award that
consists of or includes an amount of money may submit a written request for a gift
rule waiver to the Committee. In considering any such request, the Committee will
closely examine the factors noted above that bear on whether the award is a ―bona
fide‖ one.
Gifts
67
Training in the Interest of the House
Training is acceptable, ―if such training is in the interest of the House.‖
(House Rule 25, clause 5(a)(3)(L)). Also acceptable under this provision are ―food
and refreshments furnished to all attendees as an integral part of the training.‖
This provision may apply to, for example, vendor promotional training,
i.e.
,
training provided by a company for the purpose of promoting its products or
services. However, the acceptance of training may implicate the prohibition against
private subsidy of official activity (House Rule 24, clauses 1 to 3), and thus
Members and staff should consult with the Committee before accepting training
under this provision. This provision does not extend to meals in connection with
presentations made by lobbyists or advocacy groups, or to meals in connection with
briefings or discussions relating to issues before the Congress.
Widely Available Opportunities and Benefits
Members, officers, and employees may accept certain opportunities and
benefits that are similarly available to individuals outside the House (House Rule
25, clause 5(a)(3)(R)). Specifically, Members and staff may accept opportunities and
benefits that are –
(1) ―[A]vailable to the public or to a class consisting of all Federal employees,
whether or not restricted on the basis of geographic consideration;‖
(2) ―[O]ffered to members of a group or class in which membership is unrelated
to congressional employment;‖
(3) ―[O]ffered to members of an organization, such as an employees‘ association
or congressional credit union, in which membership is related to
congressional employment and similar opportunities are available to large
segments of the public through organizations of similar size;‖
(4) ―[O]ffered to a group or class that is not defined in a manner that specifically
discriminates among Government employees on the basis of branch of
Government or type of responsibility, or on a basis that favors those of higher
rank or rate of pay;‖ or
(5) ―[I]n the form of reduced membership or other fees for participation in
organization activities offered to all Government employees by professional
organizations if the only restrictions on membership relate to professional
qualifications.‖
Example 51.
A hotel chain offers a discounted rate to all federal
employees, regardless of whether they are on official travel. House
68 HOUSE ETHICS MANUAL
employees may take advantage of the reduced rate under category No.
1 above.
Example 52.
A staff person accumulates sufficient ―frequent flyer‖
miles on personal travel to receive complimentary airfare to Europe.
He may accept the award under category No. 2 above because the
―frequent flyer‖ program is available to all travelers.
Example 53.
An alumni association offers reduced-price travel and
other benefits to its members. A staff member who is a member of the
association may, under category No. 2 above, accept from the
association any benefits that it makes available to all of its members.
Example 54.
A local health club offers reduced membership fees to
congressional staff members. Because the offer is not made to federal
employees generally, and because of the limitations set forth in
category Nos. 1 and 4 above, House staff may not accept the offer
under this provision. A House staff member could accept such an offer
under category No. 1 above if it were made to all federal employees in
the Washington, D.C. area.
Example 55.
An association of tax attorneys holds monthly lunch
meetings, and the admission fee charged to federal tax attorneys is
lower than that charged to private sector tax attorneys. A House staff
member who is a tax attorney may attend the lunch meetings at the
reduced fee under category No. 5 above, provided that the only
restrictions on membership in the association relate to professional
qualifications.
Loans
Members, officers, and employees may accept opportunities and benefits that
are ―in the form of loans from banks and other financial institutions on terms
generally available to the public‖ (House Rule 25, clause 5(a)(3)(R)(v)). In addition,
as reflected in a Committee advisory memorandum of May 23, 1997, a copy of which
is reprinted in the appendix, the Committee has determined that Members and staff
may accept a loan from a person other than a financial institution, provided that
the loan is on commercially reasonable terms, including requirements for
repayment and a reasonable rate of interest. That determination was based on a
separate provision of the gift rule, clause 5(a)(3)(A), which allows the acceptance of
―[a]nything for which the Member, . . . officer, or employee pays the market
value.‖
Whether a loan from a person other than a financial institution is on terms
that are ―commercially reasonable,‖ and hence acceptable under the Committee‘s
Gifts
69
determination, will depend on a number of facts and circumstances. Thus,
before
entering into a loan arrangement with a person other than a financial institution,
Members and staff should contact the Committee for a review of the proposed
terms, and a determination by the Committee on whether the loan is acceptable
under the gift rule.
Awards and Prizes
Members, officers, and employees may accept ―[a]wards or prizes that are
given to competitors in contests or events open to the public, including random
drawings‖ (House Rule 25, clause 5(a)(3)(J)). Thus, for example, a Member or
employee who purchases a lottery ticket and wins a cash prize may accept the prize.
The Committee has also determined that a Member, officer, or employee may
accept a prize won in a drawing, raffle or other contest that is not necessarily open
to the public – for example, a drawing held at a charity fundraising event – but only
if most of the entries in the contest were from individuals other than Members,
officers, or employees of Congress (and their accompanying spouses or other
individuals).
Any prize that exceeds $335 in value will have to be disclosed on Schedule VI
of the official‘s annual Financial Disclosure Statement (see the section on ―Gift
Disclosure‖ below).
Gifts From Relatives
A gift from a relative is acceptable (House Rule 25, clause 5(a)(3)(C)). This
provision incorporates the definition of the term relative that is provided in the
Ethics in Government Act (5 U.S.C. app. 4 § 109(16)):
―relative‖ means an individual who is related to the [official] as father,
mother, son, daughter, brother, sister, uncle, aunt, great aunt, great
uncle, first cousin, nephew, niece, husband, wife, grandfather,
grandmother, grandson, granddaughter, father-in-law, mother-in-law,
son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather,
stepmother, stepson, stepdaughter, stepbrother, stepsister, half
brother, half sister, or who is the grandfather or grandmother of the
spouse of the [official], and shall be deemed to include the fiancé or
fiancée of the [official].
Fiancés and fiancées are included in this definition, and thus engagement
rings and other gifts exchanged by engaged couples are acceptable under this
provision. However, a gift may not be accepted under this provision when a relative
of a Member, officer, or employee is merely passing along a gift from some other
person.
70 HOUSE ETHICS MANUAL
Gifts From Other Members, Officers, or Employees
Members, officers, and employees may accept ―[a] gift from another Member,
. . . officer, or employee of the House or Senate.‖ (House Rule 25, clause 5(a)(3)(F)).
However, federal law generally bars government employees from giving gifts to
their official superiors.
66
While the Committee has recognized common-sense
exceptions for voluntary gifts on special occasions,
67
as a general rule, Members may
not accept things of value from their staff members, and higher level staff members
may not accept things of value from those who work for them. In addition, a gift
may not be accepted under this provision where a Member, officer, or employee is
merely passing along a gift from some other person.
Things for Which a Gift Rule Waiver Is Granted
A Member, officer, or employee may accept ―[a]nything for which, in an
unusual case, a waiver is granted by the Committee on Standards of Official
Conduct.‖ (House Rule 25, clause 5(a)(3)(T)).
General Waivers for Wedding and Baby Gifts. Upon receipt of an advance,
written request, the Committee will grant a Member, officer, or employee a general
waiver for gifts received in connection with his or her wedding, or in connection
with the birth of a baby. Such general waivers are issued primarily for the
convenience of the requester, and notwithstanding the issuance of the waiver,
recipients should exercise caution in accepting any gift that likely would not have
been offered but for the individual‘s official position. As to any such gift, the
individual should consider its source, nature and value, and any possible conflict
with official duties.
A Member, officer, or employee who receives wedding or baby gifts that
otherwise are not acceptable under the gift rule, but did not submit an advance
request for a general waiver, may submit a waiver request for those gifts. However,
such post-event requests should include, at a minimum, a description of each gift for
which a waiver is requested, including its market value, and the identity of the
donor.
The grant of a gift rule waiver by the Committee does not waive the
requirement for reporting certain gifts on Schedule VI of one‘s annual Financial
Disclosure Statement. The requirement for disclosure of certain gifts, and the
Committee‘s authority to waive disclosure in certain instances, are noted below in
the section on ―Gift Disclosure.‖ Generally the Committee will waive the
66
5 U.S.C. § 7351.
67
For example, a birthday, holiday, marriage, the birth of a child, anniversary, retirement,
and like occasions when gifts are traditionally given.
Gifts
71
requirement for disclosure of wedding and baby gifts, but a separate letter
requesting the disclosure waiver must be submitted to the Committee. In contrast
to requests for gift rule waivers, which are kept confidential by the Committee, a
request for waiver of the disclosure requirement is required by law to be made
publicly available.
Other Waivers. In addition to gifts received in connection with a wedding or
the birth of a baby, the Committee will also grant gift rule waivers in other
―unusual case[s],‖ provided that ―there is no potential conflict of interest or
appearance of impropriety.‖
68
For example, when a Member or a family member
becomes seriously ill, the Committee will generally grant a gift rule waiver for any
flowers or floral arrangements that are received.
Any Member, officer, or employee who is offered a gift that is not otherwise
acceptable under the rule, but who believes that acceptance of the gift should be
allowed, should submit a written request to the Committee for a waiver. Any
request should include, at a minimum, a description of the gift, including its market
value, the identity of the donor, and a statement of the reasons believed to justify its
acceptance.
Other Acceptable Gifts
Under the gift rule, Members, officers, and employees may also accept the
following gifts:
―A contribution, as defined in section 301(8) of the Federal Election
Campaign Act of 1971 (2 U.S.C. 431) that is lawfully made under that Act.‖
(House Rule 25, clause 5(a)(3)(B));
―[A] lawful contribution for election to a State or local government office.‖
(
Id.
, clause 5(a)(3)(B));
―Bequests, inheritances, and other transfers at death.‖ (
Id.
, clause
5(a)(3)(M)).
Other Expressly Prohibited Lobbyist Gifts
As noted above (in the section ―Overview of the Gift Rule‖), a Member, officer,
or employee may not accept any gift, except as the rule specifically provides. Thus,
unless a gift falls into one of the categories of acceptable gifts described above, it
may not be accepted. In addition to the prohibition on lobbyists and foreign agent
gifts under the general gift rule provision, the rule also expressly prohibits the
68
Bipartisan Task Force Report
,
supra
note 5, 135
Cong. Rec.
30743.
72 HOUSE ETHICS MANUAL
acceptance of certain other gifts from registered lobbyists and foreign agents. The
other gifts that are expressly prohibited are as follows:
―Anything provided by a registered lobbyist or an agent of a foreign principal
to an entity that is maintained or controlled by a Member, . . . officer, or
employee of the House.‖ (House Rule 25, clause 5(e)(1));
―A charitable contribution (as defined in section 170(c) of the Internal
Revenue Code of 1986) made by a registered lobbyist or an agent of a foreign
principal on the basis of a designation, recommendation, or other
specification of a Member, . . . officer, or employee of the House (not
including a mass mailing or other solicitation directed to a broad category of
persons or entities), other than a charitable contribution [made in lieu of an
honorarium].‖ (
Id.
, clause 5(e)(2));
―A contribution or other payment by a registered lobbyist or an agent of a
foreign principal to a legal expense fund established for the benefit of a
Member, . . . officer, or employee of the House.‖ (
Id.
, clause 5(e)(3)); and
―A financial contribution or expenditure made by a registered lobbyist or an
agent of a foreign principal relating to a conference, retreat, or similar event,
sponsored by or affiliated with an official congressional organization, for or on
behalf of Members, . . . officers, or employees of the House.‖ (
Id.
, clause
5(e)(4)).
The prohibition against accepting a contribution or other payment to a legal
expense fund from a registered lobbyist or foreign agent was noted above (in the
section ―Contributions to a Legal Expense Fund, and Pro Bono Legal Services‖).
Registered lobbyists and foreign agents are also singled out in the gift rule
provisions on personal hospitality of an individual (discussed above) and officially
related travel (discussed in the travel section). The rationale for these special
restrictions on gifts from lobbyists is noted above.
The definitions of the terms ―registered lobbyist‖ and ―agent of a foreign
principal are provided at the beginning of this chapter. The Committee does not
interpret the provisions described in this section to apply to the clients of lobbyists
and lobbying firms (unless the client is also a lobbyist or is a lobbying firm).
As a related matter, clause 8 of House Rule 25 prohibits a Member from
participating in certain events held in honor of the Member during a political
convention if those events are paid for by a lobbyist. This provision is discussed
below in the section on ―Events in Honor of a Member, Officer, or Employee.‖
Gifts
73
Handling Unacceptable Gifts
When a Member, officer, or employee receives a gift that is not acceptable
under the gift rule, and for which a gift rule waiver is not available, there are
generally two options: pay the donor the ―market value‖ of the gift, or return the
gift to the donor. However, when the unacceptable gift is a perishable item, such as
flowers or a fruit basket, the rule also provides the options of donating the item to
charity or destroying it. In addition, other options may be available for a gift that is
unusual in nature, such as a work of art from one‘s home state. These options are
detailed below.
At times when a Member, officer, or employee is unexpectedly presented with
a gift at an event, he or she may be uncertain whether it can be accepted under the
gift rule. In that circumstance, the individual may receive the gift and wait until
after the event to review the provisions of the gift rule and make a decision on the
gift‘s acceptability. Members and staff should always feel free to contact the
Committee‘s Office of Advice and Education on such matters.
Pay Market Value for the Gift
In General. The gift rule provides that a Member, officer, or employee may
accept ―[a]nything for which the [official] pays the market value.‖ (House Rule 25,
clause 5(a)(3)(A)). Generally, for the purpose of the gift rule, items are valued at
their retail, rather than wholesale prices. Often an item may be priced differently
at different stores. A gift may be valued at the lowest price at which the item is
available to the general public. Committee guidance on the value of certain specific
kinds of gifts is as follows.
Tickets to Sporting Events and Shows. The gift rule provides that a ticket to
a sporting or entertainment event is ―valued at the face value of the ticket or, in the
case of a ticket without a face value, at the highest cost of a ticket with a face value
for the event.‖ (House Rule 25, clause 5(a)(1)(B)(ii)). To address the issue of
artificially low face values, the gift rule also provides that the ―price printed on the
ticket shall be deemed its face value only if it also is the price at which the issuer
offers that ticket for sale to the public.‖ (
Id
.). Thus, for a ticket to a skybox or other
private luxury box with no face value or an artificially low face value, the value of
the ticket is the price of the highest individually-priced ticket for the event. Other
methods of valuation, such as calculating a pro-rata, pro-event cost for a season
ticket, are not permitted under the gift rule. The Committee should be contacted
for advice on the value of tickets for an event for which individually priced tickets
are not made available for sale to the public.
69
69
The guidance set forth above applies to the valuation of tickets for purposes of the House
gift rule. Members and staff should contact the Federal Election Commission for guidance regarding
the valuation of tickets for campaign events.
74 HOUSE ETHICS MANUAL
For many sporting or entertainment events, especially those taking place in
the Washington, D.C. or other major metropolitan areas, the value of a ticket may
exceed $50. When the value equals or exceeds $50, the invitee must either decline
the ticket or pay for the ticket according to the method set forth in the rule. In
addition to paying the cost of any ticket(s), Members and staff must pay the market
value of any other benefits that are accepted in connection with the event, including
food, beverages, or parking that exceed the gift rule limits. Of course, as explained
above, if the ticket is from a lobbyist or private entity that retains or employs
lobbyists, a Member or staff person may not accept free attendance, even if the
ticket is valued under $50.
Tickets to Charity or Political Fundraisers. Under a policy established by the
House Select Committee on Ethics, a ticket to a charity or political fundraising
dinner is valued at the cost of the dinner, rather than the cost of the ticket to the
purchaser.
70
Honorary Memberships. Membership in a club or other organization
typically involves an initiation fee, periodic dues, and usage charges. An ―honorary‖
membership usually involves a waiver or reduction in the normal fee or dues levied
on members. For purposes of the gift rule, an honorary membership is valued at
the total market price of the organization‘s normal initiation fee, periodic dues, and
usage charges. The value of an honorary membership to a Member or staff person
is not diminished merely because the individual does not use the membership, or
because the honorary membership does not carry voting rights or an equity interest.
Example 56.
A Member is offered a complimentary membership in a
health club. Normally, new members are assessed an initiation fee of
$45 and annual dues of $500. The Member may not accept the
membership.
Prompt Return to the Donor
The restrictions of the gift rule do not apply to anything that a Member,
officer, or employee ―does not use and promptly returns to the donor‖ (House Rule
25, clause 5(a)(3)(A)). As noted above, the rule provides additional options only with
regard to perishable items: ―When it is not practicable to return a tangible item
because it is perishable, the item may, at the discretion of the recipient, be given to
an appropriate charity or destroyed‖ (
id.
, clause 5(a)(6)). Thus, a perishable item
may be donated to a local hospital, homeless shelter, religious organization, or other
charity.
70
Final Report of the Select Comm. on Ethics
, H. Rep. 95-1837, 95
th
Cong., 2d Sess. 9.
Gifts
75
However, when a Member, officer, or employee receives a nonperishable gift
that cannot be accepted under the gift rule, he or she has no choice but to return the
item to the donor promptly. One wishing to return a gift by mail should consult
with the Commission on Congressional Mailing Standards (the Franking
Commission) to determine if the item is frankable. If the item is not frankable, it
will be necessary to purchase postage stamps using the Members‘ Representational
Allowance in order to return it by mail.
Artwork and Other Gifts of an Unusual Nature
At times a Member has been offered, for display in his or her office, a work of
art having significant value. Members have also been offered gifts of an unusual
nature, the value of which is not readily ascertainable. Gifts in this category have
ranged from works of art and antiques to items emblematic of the donor‘s cultural
group. The gift may represent the personal efforts of an individual, or may
symbolize the esteem of a constituent group, and thus a Member may feel awkward
about declining such a gift.
A Member may accept a loan of a painting or other work of art from his or her
home state for the purpose of displaying the item in the Member‘s House office. It
should be clearly established in correspondence between the Member and the item‘s
owner that the Member is holding the item on a loan basis only, and that the item
will be returned to the owner upon the soonest of the item being removed from
display, the Member leaving office, or the owner requesting its return. In addition,
a written statement of the value of the item should be obtained from the owner, and
if possible, it is advisable to place a sticker or other marking on the item that states
that the item is on loan and identifies the owner. Finally, the Member should enter
into a written agreement with the owner that provides for liability in the event of
damage or loss, since official allowances may not be used to repair or replace
personal property. On the latter point, staff of the Committee on House
Administration should be contacted.
In addition, in certain circumstances, the Standards Committee may consent
to a Member receiving a gift of a work of art or similar item for the sole purpose of
facilitating its donation to, for example, a museum in the home district or the House
Fine Arts Board.
71
Provided that the recipient agrees, such an item may be loaned
back to the Member, on a temporary basis, for display in the Member‘s office. Any
Member having a question about the proper manner to handle a gift of this nature
should contact the Standards Committee for advice.
71
The Board has statutory authority to accept, on behalf of the House, gifts of works of fine
art, historical objects, and similar property.
76 HOUSE ETHICS MANUAL
Gifts From a Foreign Government
Instances may arise when a Member, officer, or employee is presented with a
gift of more than minimal value when refusal would be deemed likely to cause
offense or embarrassment or otherwise adversely affect United States foreign
relations. In such an instance, the gift may be accepted on behalf of the United
States and becomes the property of the United States. Within 60 days of accepting
such a gift, a Member or staff person must turn the gift over to the Clerk of the
House for disposal or, with the consent of this Committee, the recipient may retain
the gift for display in his or her office or other official use. The regulations on gifts
from foreign governments are reprinted in the appendix.
Events in Honor of a Member, Officer, or Employee
At times an outside organization wishes to hold a reception or other event in
honor of a Member, officer, or employee. As long as the identity of the sponsor (that
is, the person that is organizing and paying for the event) is made clear to all
participants (
e.g.
, on the invitations), an event nominally ―in honor of‖ a Member or
group of Members is not generally considered a gift in itself to the honoree(s).
However, the Members being recognized should not identify themselves as hosts or
receive any particular benefit from the event. If they do, the entire cost of the event
may be viewed as a gift to the honoree(s).
Thus, for example, a Member with a strong record on environmental issues
might be honored at a reception hosted by a nonprofit organization interested in
those issues without raising concerns under the gift rule. If the same Member were
an amateur photographer, however, and the event was set up to provide the
Member with a forum for selling his or her photographs of wildlife, the Committee
could find that the entire cost of the reception was a gift from the organization to
the Member. The Committee could also make such a finding if the honoree assumes
any role in organizing the event, such as hosting the event in the honoree‘s home.
Put another way, the event must genuinely be the event of the outside sponsor, and
it is the sponsor who must determine the nature of the event and the guest list.
Of course, whether a Member, officer, or employee may attend such an event
will depend on whether attendance would be permitted under the gift rule. As
discussed previously, it is permissible for a Member, officer, or employee to accept a
gift (
e.g.
, a meal) that has a value of less than $50, and gifts having a cumulative
value of less than $100 from a single source in a calendar year. However, if the host
of the event is a private entity that retains or employs registered lobbyists, reliance
on the less than $50 provision of the gift rule would be impermissible. On the other
hand, depending on the circumstances, such an event may qualify as a ―widely
attended‖ event, permitting an invitee to accept food and refreshments furnished to
Gifts
77
all attendees as an integral part of the event.
72
In addition, it is permissible for a
Member, officer, or employee to accept at a reception ―[f]ood or refreshments of a
nominal value offered other than as a part of a meal‖ (House Rule 25, clause
5(a)(3)(U)).
Furthermore, it would not be permissible for a Member, officer, or employee
to solicit another individual or group to hold a reception or event in his or her honor.
Similarly, it would not be permissible for a Member, officer, or employee who is
being honored at a reception or event to solicit support for the event.
Political Conventions
In the 110
th
Congress, a new provision was added to House Rule 25
prohibiting Member participation in certain events held during a national political
convention.
73
The provision (House Rule 25, clause 8) provides as follows:
During the dates on which the national political party to which a
Member (including a Delegate or Resident Commissioner) belongs
holds its convention to nominate a candidate for the office of President
or Vice President, the Member may not participate in an event
honoring that Member, other than in his or her capacity as a candidate
for such office, if such event is directly paid for by a registered lobbyist
under the Lobbying Disclosure Act of 1995 or a private entity that
retains or employs such a registered lobbyist.
Under this provision, a Member may not ―participate
[
74
]
in an event honoring
that Member‖ if the event takes place during a national political convention, other
than to participate in the Member‘s capacity as a candidate for President or Vice
President, and when certain other criteria are met. Member participation
prohibited under the provision is for an event when the Member is named, including
through the use of any personal title, as an honoree (including as a ―special guest‖)
in any invitations, promotional materials, or publicity for the event. Member
participation also would be prohibited if the Member were to receive, through the
Member‘s participation in the event, some special benefit or opportunity that would
72
For guidance on ―widely attended‖ events, see discussion on ―Attendance at Events
(Including Meals).‖
73
See
The Honest Leadership and Open Government Act of 2007, Pub. L. 110-81, § 305, 121
Stat. 735, 753 (Sept. 14, 2007).
74
The term ―participate‖ is not defined in the underlying Act or the House rule. In the
Committee‘s view, the prohibition on participation in the events that are the subject of the provision
concerns Member attendance at the event. Members should contact the Committee with any
questions regarding whether activities other than attendance may constitute participation in such
events.
78 HOUSE ETHICS MANUAL
not be available to some or all of the other participants, such as if the sponsor were
to offer the Member an exclusive speaking role or a very prominent ceremonial role.
According to the legislative history of this provision, the restriction set forth
above is intended to have the ―effect of preventing lobbyists or an entity employing
such lobbyists from directly paying for a party to honor a
specific
Member.‖
75
Thus,
an event that is organized to honor a delegation or caucus, without naming any
specific Member of the delegation or caucus, or providing any special benefit or
opportunity to a particular Member, would be an event that Members may
participate in under clause 8 of House Rule 25 – provided that, as discussed below,
attendance at the event otherwise would be in compliance with clause 5 of House
Rule 25 (the gift rule). There is no numerical requirement on the size of the
delegation or caucus participating in the event. Furthermore, a Member would not
be prohibited from participating in an event taking place during a national
convention if the Member‘s name appears, for example, in a listing of the names of
the honorary host committee members for the event if that listing includes the
names of non-congressional host committee members.
The provision is very specific in prohibiting Member participation in an event
that is ―directly paid for‖ by a lobbyist or private entity that retains or employs
lobbyists. The fact that a private organization received some of its funding for an
event taking place during a national convention from a lobbyist or private entity
that retains or employs lobbyists, by itself, would not disqualify a Member from
participating in the organization‘s event.
The provision also states that Member participation is prohibited only at
certain events taking place ―[d]uring the dates‖ on which a national convention is
held. Accordingly, the rule does not prohibit Member participation in an event that
takes place on a date other than the dates on which the national convention is held.
It is important to note that the provision does not establish a new type of
event for which free attendance may be accepted under the gift rule. In other
words, a Member may accept an offer of free attendance at an event taking place
during a national political convention only in accordance with the gift rule – that is,
the event is a reception or it satisfies all of the criteria of a widely attended event, a
charity event, or a fundraising or campaign event sponsored by a political
organization.
75
153
Cong. Rec.
E1759 (daily ed. Aug. 4, 2007) (statement of Rep. John Conyers, Jr.)
(emphasis added).
Gifts
79
Bribery and Illegal Gratuities
The solicitation or acceptance of a gift that is tied to an official act may
implicate the U.S. criminal code. The federal bribery statute makes it a crime for a
public official, including a Member, officer, or employee of the House, to ask for or
receive gifts, money, or other things of value in connection with the performance of
official duties. Bribery occurs when a federal official ―directly, or indirectly,
corruptly‖ receives or asks for ―anything of value personally or for any other person
or entity, in return for . . . being influenced in the performance of any official
act.‖
76
An illegal gratuity results when an official directly or indirectly seeks or
receives personally anything of value other than ―as provided by law . . . for or
because of any official act performed or to be performed.‖
77
In a leading decision, the
U.S. Supreme Court discussed the distinguishing features of the two sections:
[F]or bribery there must be a
quid pro quo
– a specific intent to
give or receive something of value
in exchange
for an official act. An
illegal gratuity, on the other hand, may constitute merely a reward for
some future act that the public official will take (and may already have
determined to take), or for a past act that he has already taken.
78
In that decision, the Supreme Court held that in order to establish a violation
of the illegal gratuity statute, ―the Government must prove a link between a thing
of value and a specific ‗official act‘ for or because of which it was given.‖
79
According
to the court, the illegal gratuity statute is not violated in the absence of such a link,
such as when one gives a federal official a gift ―because of his official position –
perhaps, for example, to build a reservoir of goodwill that might ultimately affect
one or more of a multitude of unspecified acts, now and in the future.‖
80
Thus, both the bribery statute and the illegal gratuity statute require as an
element of the offense that the thing of value be related in some manner to an
official act, that is, the thing of value must be offered or requested either ―in return
for being influenced in‖ or ―for or because of‖ an official act. This element
distinguishes a bribe or illegal gratuity from a mere gift. A gift, as generally
defined, is a ―voluntary transfer‖ of property, made ―without consideration.‖
81
A
bribe induces an official act; an illegal gratuity rewards an official act; a gift has no
connection to any official act.
76
18 U.S.C. § 201(b)(2)(A).
77
Id.
§ 201(c)(1)(B).
78
United States v. Sun-Diamond Growers
, 526 U.S. 398, 404 (1999).
79
Id.
414.
80
Id.
405.
81
Black‘s Law Dictionary
709 (8
th
ed. 1999).
80 HOUSE ETHICS MANUAL
While responsibility for enforcing this statute rests with the Justice
Department, in the view of this Committee, these provisions do not extend to token
gifts of appreciation or goodwill, intended as courtesy, and consisting of either:
Perishable items (
e.g.
, candy or flowers) that the Member or employee shares
with staff and constituents or donates to charity; or
Decorative items that are displayed in the office or donated to charity.
This view as to perishable items is similar to that in regulations of the
Executive Branch‘s Office of Government Ethics.
82
Example 57.
A lobbyist offers a Member a substantial campaign
contribution if the Member will introduce certain legislation. The
lobbyist has violated the bribery law, as will the Member if he accepts.
Example 58.
A Member introduces H.R. 1776 and manages the bill
through passage solely because she believes the legislation will be good
for the country. A lawyer also favors the legislation because it will
benefit his clients. The lawyer sends the Member a clock radio valued
at less than $50, with a note saying, ―In appreciation for your good
work on H.R. 1776.‖ The Member must send the clock radio back
because it is an illegal gratuity.
Example 59.
In mid-December, a trade association sends a small
basket of fruit to Member A‘s office, with a note saying, ―Season‘s
Greetings to Member A and staff.‖ Acceptance of the basket is not
prohibited by the bribery and illegal gratuity statutes.
Example 60.
A caseworker helps B, a constituent with a VA claim.
The following week, the caseworker receives a $25 gift certificate for a
local restaurant with a note from B saying, ―I'll never be able to repay
you for what you‘ve done for me.‖ The caseworker must return the gift
certificate; it is an illegal gratuity.
Example 61.
A caseworker helps a constituent with her Social
Security claim. In gratitude, the constituent brings a box of home-
baked cookies to the office for the caseworker and the rest of the staff.
The caseworker may accept the cookies.
82
5 C.F.R. § 2635.205(a)(2) (Example 1).
Gifts
81
Example 62.
Member C‘s office helps a constituent with a Medicare
claim. In gratitude, the constituent embroiders C‘s name on a small
piece of fabric, for C to display in the office. C may accept the
embroidery as a token decorative item.
Example 63.
A citizens group sends a Member a framed reprint of the
Constitution with a note saying, ―Thank you for being a responsible
voice for good government.‖ Because the gift is not tied to any specific
official act, its acceptance is not prohibited by the bribery and illegal
gratuity statutes.
A person found guilty of bribery may be fined up to three times the value of
the bribe, imprisoned for up to 15 years, and disqualified from holding any federal
office.
83
A person found guilty of seeking or receiving an illegal gratuity may be
fined, imprisoned for up to two years, or both.
84
Violation of these laws may also
lead to disciplinary action by the House.
Several recent examples concerning the bribery statute are worth noting.
During the 109
th
Congress, a Member resigned from the House after pleading guilty
in federal court to engaging in tax evasion and criminal conspiracy to violate,
among other things, the bribery statute through his acceptance of a wide variety of
extravagant items and millions of dollars worth of payments, travel, and other
benefits.
85
Following his resignation, there were continuing reports concerning
possible violations of House rules and standards, including that the Member had
been provided with hotel rooms, limousines, and other services in exchange for
performing official acts.
86
Although he was not prosecuted under the bribery statute, during the 109
th
Congress another Member resigned from the House after pleading guilty in federal
court to conspiracy to commit honest services fraud and other offenses (making false
statements and aiding and abetting in the violation of his former chief of staff‘s one-
year lobbying ban), and with making false statements to the House. As a part of his
plea agreement, the Member admitted that he corruptly solicited and accepted
trips, meals, concert and sporting tickets, thousands of dollars in gambling chips,
tens of thousands of dollars of campaign contributions and in-kind donations with
the intent to be influenced and induced to take official actions.
87
83
18 U.S.C. § 201(b).
84
Id.
§ 201(c).
85
United States v. Randall ―Duke‖ Cunningham
, Doc. No. 05-CR-2137 (S.D. Cal. 2005).
86
House Comm. on Standards of Official Conduct,
Summary of Activities, 109
th
Congress
, H.
Rep. 109-744, 109
th
Cong., 2d Sess. 20 (2007).
87
United States v. Robert W. Ney
, Doc. No. 06-CR-272 (D.D.C. 2006).
82 HOUSE ETHICS MANUAL
During the 107
th
Congress, a Member was convicted of, among other things,
conspiracy to violate the federal bribery statute by agreeing to and performing
official acts for various individuals in exchange for free labor, materials, supplies,
and equipment for use at the Member‘s farm.
88
In a subsequent Committee
investigation, the investigative subcommittee stated in a letter transmitting the
Statement of Alleged Violations that such acts included, for example, intervening in
matters pending before federal and state authorities.
89
The Committee found that
the conduct by the Member violated clauses 1-3 of the Code of Official Conduct. On
the basis of this violation, as well as other conduct found to be in violation of the
Code of Official Conduct which taken together were ―of the most serious character
meriting the strongest possible Congressional response,‖
90
the Committee
recommended that the House of Representatives adopt a resolution that the
Member be, and he later was, expelled.
91
In the 1980s, the Committee on Standards conducted a number of
investigations into allegations that Members of Congress accepted bribes or illegal
gratuities. In one case, the Member was alleged to have received not cash, but free
vacation trips from a creditor of a government contractor on whose behalf the
Member had intervened with local authorities.
92
In the 96
th
and 97
th
Congresses,
the Committee investigated three Members on charges – arising out of the
Department of Justice‘s ―ABSCAM‖ probe – that they had accepted money in
exchange for promising to aid purportedly wealthy foreigners seeking to immigrate
to the United States.
93
Also in the 96
th
Congress, the Committee investigated a
Member for allegedly receiving payments, either directly or through an assistant,
from a series of individuals over a five-year period, in exchange for agreements to
88
United States v. James A. Traficant, Jr.
, Crim. No. 4:01-CR-207 (N.D. Ohio 2002).
89
House Comm. on Standards of Official Conduct,
In the Matter of Representative James A.
Traficant, Jr.
, H. Rep. 107-594, 107
th
Cong., 2d Sess. 119-20 (2002).
90
Id
. at 2.
91
See
H. Res. 495, 107
th
Cong., 2d Sess. (148
Cong. Rec.
H5375-01 (July 24, 2002)).
92
See
House Comm. on Standards of Official Conduct,
In the Matter of Representative Mario
Biaggi
, H. Rep. 100-506, 100
th
Cong., 2d Sess. (1988). The Committee recommended expulsion, but
the Member resigned before the House could act.
93
See
House Comm. on Standards of Official Conduct,
In the Matter of Representative
Michael J. Myers
, H. Rep. 96-1387, 96
th
Cong., 2d Sess. 5 (1980); House Comm. on Standards of
Official Conduct,
In the Matter of Representative John W. Jenrette, Jr.
, H. Rep. 96-1537, 96
th
Cong.,
2d Sess. 10 (1980); House Comm. on Standards of Official Conduct,
In the Matter of Representative
Raymond F. Lederer
, H. Rep. 97-110, 97
th
Cong., 1
st
Sess. 16 (1981).
Gifts
83
attempt to influence various government agencies.
94
These cases resulted in one
expulsion
95
and four resignations from Congress.
In addition to the bribery and illegal gratuities statute, several other
provisions of the federal criminal code restrain Members, officers, and employees
from accepting private compensation in matters of federal concern. Section 203 of
Title 18 prohibits House Members and employees from accepting compensation for
representing anyone before a federal department, agency, officer, or court in any
particular matter in which the United States is a party or has a direct and
substantial interest. Even if Members and employees are acting properly and
within their official capacities, they may not receive compensation, other than their
congressional salaries, for acts before a unit of federal government.
96
Nor may an
individual solicit or receive anything of value (including campaign contributions) in
return for supporting someone for, or using influence to obtain for someone, a
federal job.
97
A Member, officer, or employee should therefore be wary of accepting
any gifts, favors, contributions, or entertainment from persons whom the individual
has assisted with job applications or other dealings with the agencies of the federal
government.
Fundraisers and Testimonials
A provision of the House Code of Official Conduct (House Rule 23, clause 7)
requires that Members treat the proceeds of any testimonial dinners or other
fundraising events as campaign contributions, subject to all the restrictions on
campaign funds.
98
Such funds must be disclosed as required by Federal Election
Commission regulations
99
and used by the Member only for bona fide campaign or
political purposes.
100
The money may not be treated as unrestricted personal gifts.
94
House Comm. on Standards of Official Conduct,
In the Matter of Rep. Daniel J. Flood
, H.
Rep. 96-856, 96
th
Cong., 2d Sess. 125 (1980).
95
126
Cong. Rec.
28953-78 (Oct. 2, 1980).
96
May v. United States
, 175 F.2d 994 (D.C. Cir.),
cert. denied
, 338 U.S. 830 (1949). Indeed, if
an employee is acting outside his or her official duties, the employee may not act as anyone‘s agent
or attorney before any federal agency or officer in a matter in which the United States has an
interest,
whether or not
compensation is received. 18 U.S.C. § 205(a).
97
18 U.S.C. § 211.
98
This provision was a recommendation of the House Commission on Administrative Review.
See
House Comm‘n on Admin. Review,
Financial Ethics
, H. Doc. 95-73, 95
th
Cong., 1
st
Sess. 14
(1977).
99
Title 11, C.F.R.
100
House Rule 23, cl. 6.
84 HOUSE ETHICS MANUAL
House rules prohibit the conversion of campaign funds to personal use or official
congressional purposes.
101
The House Select Committee on Ethics determined that a direct mail
solicitation by a Member or a Member‘s spouse constituted a ―fund-raising event‖
for the purposes of Rule 23, clause 7. Proceeds from such a solicitation must be
treated as campaign contributions that may not be converted to personal use by the
Member. In reaching this decision, the Select Committee noted that a major
purpose of revisions to the Code of Official Conduct was to prevent Members from
―cashing in‖ on their official position in the Congress.
102
The Select Committee also
found that a Member may not accept for unrestricted personal use the proceeds of a
fundraiser conducted by a group independent of the Member.
103
Gift Disclosure
Under the Ethics in Government Act of 1978, Members, officers, and certain
employees must disclose information in annual financial statements. Schedule VI
of the statements concerns gifts received by the reporting individual, and in general,
the donor, description and value of all gifts aggregating more than $335 from a
single source during the year must be disclosed on that schedule.
104
Information on
certain gifts received by the spouse or dependent of the Member or employee may
need to be disclosed as well.
105
However, the statute also provides that in an
―unusual case,‖ a gift need not be aggregated ―if a publicly available request for a
waiver is granted.‖
106
A House Member or staff person wishing a waiver of the
reporting requirement must submit a written waiver request to the Standards
Committee. Additional information on the reporting of gifts on one‘s annual
Financial Disclosure Statement, and the criteria for granting a waiver of the
reporting requirement, are provided in the Financial Disclosure Instructions
booklet issued by the Standards Committee.
In addition, as noted above (in the section ―Gifts From Foreign Governments
and International Organizations‖), tangible gifts of over minimal value that may be
101
House Rule 23, cl. 6; House Rule 24, cl. 1-3.
102
House Select Comm. on Ethics,
Advisory Opinion No. 4
(Apr. 6, 1977),
reprinted in
H. Rep.
95-1837,
supra
note 64.
103
House Select Comm. on Ethics,
Advisory Opinion No. 11
(May 11, 1977),
reprinted in
H.
Rep. 95-1837,
supra
note 64.
104
5 U.S.C. app. 4 § 102(a)(2).
105
Id.
§ 102(e)(1)(C).
106
Id.
§ 102(a)(2)(C).
Gifts
85
received from foreign governments must be disclosed at the time such gifts are
required to be turned over to the United States, that is, within 60 days of receipt.
Summary of Travel Rules
Type of Trip
Permissible Sponsor
Lobbyist Involvement in
Planning, Organizing,
Requesting, or Arranging
Lobbyist and Foreign
Agent Accompaniment
Certification,
Committee Approval,
and Post-travel
Disclosure
Required?
Notes
One-day Event Trip
Any sponsor OTHER
than a lobbyist or foreign
agent
De minimis Not permitted
Yes
Travel may be extended to a
two-night stay when
determined by the
Committee to be practically
required for traveler to
participate in the one-day
event
Trip Sponsored by an
Institution of Higher
Education
Private universities and
colleges
Permitted Permitted
Yes
Multiple-day Event Trip
Any sponsor OTHER than a
lobbyist, foreign agent, or
private entity that retains or
employs such an individual
Not permitted Not permitted
Yes
Government-sponsored
Travel
Federal, state, and local
governments, including a
public university or
college
Permitted
Permitted
No
Foreign Government-
sponsored Travel
Foreign government with a
MECEA-approved trip, or
in-country foreign travel
permitted under the FGDA
Permitted Permitted
No
Special disclosure
requirements for FGDA
travel
86
87
TRAVEL
Overview
At times Members, officers, and employees are offered the opportunity to
travel at the expense of an outside organization or of another individual.
1
Except as
the House gift rule (House Rule 25, clause 5) otherwise provides, such travel
expenses are a gift to the Member, officer, or employee. Like any other gift, travel
expenses are subject to the basic gift prohibitions noted in the Committee‘s
guidance on gifts – including the prohibition against soliciting a gift – and they may
be accepted only in accordance with the provisions of the gift rule. Indeed, travel
may be among the most attractive and expensive gifts, and thus before accepting
travel, a Member, officer, or employee should exercise special care to ensure
compliance with the gift rule and other applicable laws, rules, and regulations.
Under the gift rule, there are essentially five types of travel that a Member,
officer, or employee may accept, subject to certain restrictions and conditions
provided in the rule. These types of acceptable travel are defined primarily by
reference to the source of the travel expenses, and the purpose of the trip:
Travel in connection with the individual‘s official duties that is paid for by a
private source;
Travel entirely unrelated to official duties that is paid for by a private source,
including travel paid for by a personal friend;
Travel paid for by the federal government, or by a state or local government;
Travel paid for by a foreign government or an international organization; and
Travel for a campaign purpose that is paid for by a political organization.
Each type of travel is addressed separately below. Officially-connected travel
that is paid for by a private source is one of the types of travel frequently offered to
Members and staff. While the gift rule imposes a number of requirements and
restrictions regarding this type of travel, which are detailed below, the most
important requirements are for approval by the Committee on Standards of Official
Conduct for each trip and each House participant following pre-travel certification
by the private sponsor to a variety of travel-related facts.
1
In this chapter, the terms ―travel‖ and ―travel expenses‖ are used interchangeably, because
the rules are the same whether one accepts ―travel‖ (
i.e.
, transportation, food, lodging or other items
provided on an in-kind basis), or ―travel expenses‖ (
i.e.
, cash reimbursement for expenses paid
directly by the traveling individual).
88 HOUSE ETHICS MANUAL
Under the previous version of the gift rule, the Standards Committee did not
have authority to approve trips paid for by a private source. The previous rule
placed on individual Members and officers, for themselves and their staff, the
responsibility of making the determination that a particular trip was in connection
with official duties and would not create the appearance of using public office for
private gain. Pursuant to the rules adopted at the beginning of the 110
th
Congress,
no such travel may be accepted without first receiving written approval by the
Standards Committee. Therefore, for every officially-connected trip paid for by a
private source, each invited House Member, officer, and employee is required to
obtain Committee approval before participating in such travel. Acceptance of travel
from a private source for an unapproved trip is a violation of House rules.
Following the trip, House rules require public disclosure of all advance
authorizations, certifications, and disclosures within 15 days. Such post-travel
disclosures must provide, among other things, a description of the meetings and
events attended.
The House rules adopted at the beginning of the 110
th
Congress also required
the Standards Committee to develop guidelines concerning the reasonableness of
travel expenses and the types of information that must be submitted in order to
obtain prior approval by the Committee of officially-connected travel (House Rule
25, clause 5(i)).
On February 20, 2007, the Committee issued guidelines and regulations
concerning the travel restrictions and requirements. The guidelines and
regulations, which are reprinted in the appendices, took effect on March 1, 2007. In
many significant areas, the guidelines and regulations include new restrictions and
requirements that supersede the Committee‘s policies under the travel provisions of
the gift rule that existed in previous Congresses.
Among the other matters addressed in this chapter are –
―Official travel‖ by a Member, officer, or employee – that is, travel that is
paid for or authorized by the House of Representatives;
Trips that have more than one purpose,
i.e.
, ―mixed purpose‖ trips;
The restrictions on travel to charity events; and
The rules and restrictions on use of a non-commercial aircraft for travel.
Officially-Connected Travel Paid for by a Private Source
Summary of the Rule
During the 110
th
Congress, the travel provisions of the gift rule (House Rule
25, clauses 5(b), (c), and (d)) were substantially revised to impose new restrictions
Travel
89
and requirements on officially-connected travel paid for by a private source.
2
These
restrictions and requirements are the most significant changes made in the travel
provisions since the modern gift rule took effect on January 1, 1996. Specifically,
the revised provisions –
Prohibit certain sources of travel expenses;
For most types of trips, prohibit lobbyist accompaniment on any segment of
the trip;
Ban lobbyist involvement in planning, organizing, requesting, or arranging
most trips;
Require approval of all privately funded travel by the Standards Committee
following pre-travel certification by the private sponsor, and impose new
post-travel reporting requirements; and
Limit the acceptance of travel expenses to those that are reasonable under
guidelines and regulations issued by the Standards Committee.
Included at the beginning of this chapter is a chart that summarizes the
travel rules. As summarized there, and as further detailed below, travel expenses
may never be accepted from a registered lobbyist or registered agent of a foreign
principal, regardless of the trip‘s duration.
3
In the case of travel paid for by a
private sponsor that retains or employs registered lobbyists or agents of a foreign
principal, Members and staff may only accept necessary travel expenses to attend a
one-day event, with a single night‘s lodging and related meal expenses. The
Committee, however, may permit a second night‘s stay for such a trip when it
determines, on a case-by-case basis, that the additional expenses are practically
required for the individual to participate in the one-day event. Also permitted
under the rule is the acceptance of necessary travel expenses to attend a multiple-
day meeting, speaking engagement, fact-finding trip, or similar event in connection
with official duties from a private source other than a registered lobbyist, agent of a
foreign principal, or private entity that retains or employs such individuals. A
multiple-day trip sponsored by an institution of higher learning also is permissible,
even if the institution retains or employs lobbyists or foreign agents.
Lobbyist involvement in planning, organizing, requesting, or arranging a one-
day event trip must be ―de minimis,‖ as that term is defined in the travel guidelines
and regulations issued by the Standards Committee. In addition, Members and
staff are prohibited from accepting travel from a private source if the official will be
accompanied by a lobbyist or foreign agent on any segment of a one-day or multiple-
2
The history of House Rule 25 is discussed in Chapter 2 on gifts.
3
See
note 4,
infra
.
90 HOUSE ETHICS MANUAL
day trip. Lobbyist involvement in planning, organizing, requesting, or arranging
multiple-day trips is also prohibited. However, for a trip sponsored by an
institution of higher education, a Member or staff person may be accompanied by a
lobbyist, and a lobbyist may be involved in planning, organizing, requesting, or
arranging the trip.
A private sponsor offering officially-connected travel must complete a Private
Sponsor Form, and provide a copy of that form (with the pertinent attachments) to
each House invitee (not directly to the Standards Committee). A Member, officer, or
employee seeking approval to accept travel must submit to the Committee a
completed Traveler Form that attaches or includes the Private Sponsor Form. For
staff, the Traveler Form must be signed by the supervising Member authorizing the
travel.
Travel expenses that are permissible under the rule are limited to those that
are reasonable and necessary under the travel provisions of the gift rule and the
guidelines and regulations issued by the Standards Committee. Necessary
expenses include reasonable expenses for transportation, food, and lodging, but do
not include expenditures for entertainment or recreational activities. A Member,
officer, or employee may also accept expenses to enable one of the individual‘s
family members to accompany the individual on the trip.
For each trip taken by a Member, officer, or employee, a travel disclosure
form must be completed, signed, and filed with the Clerk of the House within 15
days of return. All of the pre-travel documentation described above must be
attached to the form. Members and officers, as well as employees who file a
Financial Disclosure Statement, must also report on their annual statements all
travel expenses from any source having a total value of more than $335 in a
calendar year.
Travel taken in accordance with these provisions of the gift rule is not
deemed a gift that is prohibited by the rule, but instead is deemed ―a
reimbursement to the House of Representatives‖ (House Rule 25, clause 5(b)(1)(A)).
Elaboration on the requirements and restrictions of this provision of the gift rule,
including the restrictions on private subsidy of official activity, follows.
Requirement That the Travel Be in Connection With Official Responsibilities
The fundamental requirement of the travel provisions of the gift rule is that
the subject matter of the trip must be related to the official duties of the
participating Member, officer, or employee. Among the travel purposes that may be
proper under this provision are attendance at a meeting or a speaking engagement,
or participation in a fact-finding trip (House Rule 25, clause 5(b)(1)(A)).
Travel
91
When a Member, officer, or employee requests approval to accept travel, the
rule specifically requires that a determination be made that the travel is in
connection with the individual‘s official duties. As phrased in the rule (House Rule
25, clause 5(b)(3)(G)), travel must be –
in connection with the [individual‘s] duties as an officeholder and
would not create the appearance that the [individual] is using public
office for private gain.
Members and staff requesting approval from the Standards Committee to
accept travel paid for by a private source must demonstrate compliance with this
requirement. Pursuant to the travel guidelines and regulations the Committee has
issued, the Committee considers a number of factors in determining whether to
approve a travel request, including –
The official‘s responsibilities;
Whether the trip relates to matters within the legislative or policy interests
of Congress; and
The amount of officially-connected activities scheduled to take place during
the trip.
Concerning the last factor, the gift rule states that ―events, the activities of
which are substantially recreational in nature, are not considered to be in
connection with the duties of [the individual] as an officeholder.‖ (House Rule 25,
clause 5(b)(1)(B).)
Member and staff participation on a trip is evaluated on a case-by-case basis,
and travelers are required to explain to the Committee – through the completion of
a Traveler Form – how attendance on a given trip relates to the individual‘s official
and representational duties. For staff travel, the rule provides that it is the
responsibility of the individual‘s employing Member or officer to provide a signed,
written statement that the Member or officer deems the travel to comply with this
requirement. That explanation, together with the rest of the information on the
form, is among the information made publicly available after the trip.
While expenses for officially-connected travel may be accepted, Members and
staff may not accept expenses from a private source for travel the primary purpose
of which is to conduct official business. Clauses 1-3 of House Rule 24 prohibit the
acceptance of private support – both monetary and in-kind – for official House
activities. Thus, when the primary purpose of a trip is to conduct official business,
such as general oversight activities within a committee‘s jurisdiction, the expenses
must be paid with official House funds.
92 HOUSE ETHICS MANUAL
Travel Sponsored by Private Entities That Retain or Employ Lobbyists or Foreign
Agents
The travel provisions of the gift rule severely limit the ability of Members
and staff to accept travel from an entity that employs or retains a registered
lobbyist or a registered agent of a foreign principal (House Rule 25, clause 5(b)(1)).
4
Included in this limitation are any companies, firms, nonprofit organizations
(including charities), and other private entities that retain or employ a lobbyist or
agent of a foreign principal. However, a trip sponsored by an institution of higher
education that retains or employs a lobbyist (or foreign agent) is subject to different
rules, which are discussed below.
One-Day Event Trips. The sole exception to the general prohibition on
accepting officially-connected travel from a private source that retains or employs
lobbyists or agents of a foreign principal is for trips involving attendance at or
participation in a ―one-day event (exclusive of travel time and an overnight stay)‖
(House Rule 25, clause 5(b)(1)(C)).
Under the rule, it is permissible for a Member or staff person to accept a
single night‘s lodging and meals related to the trip, if offered by the trip sponsor.
Members and staff must limit their involvement in connection with the event to a
single calendar day, exclusive of travel time and an overnight stay. A Member or
staff person may therefore attend only a single day of a multiple-day conference,
forum, or other event that is being hosted primarily for individuals other than
congressional invitees.
Under the Committee‘s travel regulations and guidelines implementing the
travel provisions of the gift rule,
5
the Committee may permit a second night‘s stay
when determined ―on a case-by-case basis to be practically required to participate in
the one-day event‖ (House Rule 25, clause 5(b)(1)(C)). Some circumstances in which
the Committee may permit a second night‘s stay are for certain long-distance trips,
when a Member or staff person is participating in a full day‘s worth of officially-
4
As discussed in the summary, travel may never be accepted from a registered lobbyist or
agent of a foreign principal. The gift rule provides that the term ―registered lobbyist‖ means ―a
lobbyist registered under the Federal Regulation of Lobbying Act or any successor statute,‖ and the
term ―agent of a foreign principal‖ means ―an agent registered under the Foreign Agents
Registration Act.‖ (House Rule 25, clause 5(g).)
Because travel may not be accepted from an individual who is a registered lobbyist, travel
likewise may not be accepted from a lobbying firm. As a general matter, the Committee does not
consider a corporation, trade association, labor union, or other entity that retains or employs
lobbyists to represent only the interests of the organization or its members to be a ―lobbyist‖ for
purposes of the prohibition.
5
The travel regulations and guidelines are reprinted in the appendices.
Travel
93
connected activities such that a second night‘s stay is necessary to accomplish the
purpose of the trip, or other
exceptional
circumstances that are described in detail
by the traveler.
6
The traveler will be personally responsible for any expenses
incurred beyond those allowed by the Committee in connection with the second
night‘s stay. For guidance concerning extending a trip at one‘s personal expense,
see the discussion under the heading ―Extending a Trip at Personal Expense,‖
below.
Travel Sponsored by Other Private Entities
Members and staff may participate in a multiple-day trip
only
if the trip is
one that is sponsored by a private source that does not retain a registered lobbyist
or agent of a foreign principal, or if the trip is being paid for directly by ―an
institution of higher education.‖
7
The time limits concerning such trips are as
follows.
Travel
Within
the Continental United States. For travel within the
continental United States, a Member, officer, or employee may be permitted to
accept travel expenses for up to, but for no more than, four days inclusive of travel
time. The Committee has interpreted the four-day time limit to consist of four 24-
hour periods. Thus, a Member, officer, or employee must commence his or her
return trip to Washington or the congressional district no later than 96 hours after
beginning the trip.
Travel
Outside
the Continental United States. For travel outside the
continental United States – including travel to a foreign country, or to Alaska,
Hawaii, Puerto Rico, or any other U.S. territory or commonwealth – a Member,
officer, or employee may be permitted to accept travel expenses for up to, but no
more than, seven days exclusive of travel time. The Committee interprets this
provision to mean that any days spent in whole or in part in traveling to or from the
United States do not count toward the seven-day limit. However, time spent
traveling between foreign countries does count toward the limit.
Extending the Time Limits. Although the rule (House Rule 25, clause
5(b)(4)(A)) authorizes the Committee to approve requests to extend the four- and
seven-day time limits (but not the time limit for one-day event trips
8
), the
6
In addition, the second night‘s stay must have been offered by the private source (
i.e.
, it
may not be solicited by the Member or staff person), and the traveler must request the Committee‘s
approval for the second night‘s stay before the trip.
7
As used in the rule, ―an institution of higher education‖ is one within the meaning of section
101 of the Higher Education Act of 1965, that is, an accredited, degree-granting postsecondary
institution.
8
The matter of requesting a second night‘s stay in connection with a one-day event trip is
discussed above in the section on ―One-Day Event Trips.‖
94 HOUSE ETHICS MANUAL
Committee grants such requests only in truly extraordinary circumstances. The
fact that a particular conference, or a fact-finding trip organized by an outside
entity, is scheduled to last longer than the time periods set forth in the rule
ordinarily will not suffice as grounds for a waiver. An example of a situation that
would warrant a waiver is when the destination is so remote that it receives air
service only once every ten days. In this regard, it should be noted that these
limitations on trip length were imposed out of concern for ―the public perception
that such trips often may amount to paid vacations for the Member and his family
at the expense of special interest groups.‖
9
Further Restrictions on the Length of Multiple-Day Trips. The four- and
seven-day limits described above reflect the maximum period for which a Member,
officer, or employee may accept expenses from a private source for officially-
connected travel. A further restriction on trip length results from the requirement
that only ―necessary transportation, lodging, and related expenses for travel‖ may
be accepted (House Rule 25, clause 5(b)(1)(A) (emphasis added)). That is, a
Member, officer, or employee will be permitted by the Standards Committee to
accept only such expenses as are reasonably necessary to accomplish the purpose of
the trip, and thus it may not always be permissible to accept expenses being offered
for a full multiple-day period. This is particularly so when the sole purpose of an
individual‘s travel to an event is to give a speech. Therefore, as a general matter,
the Committee will grant approval for a Member, officer, or employee to accept
travel, lodging, and meal expenses for the full time periods only if, after reviewing
the trip itinerary, the Committee determines that those expenses are reasonably
necessary for the officially-connected purpose of the trip to be accomplished. In
making this determination, the Committee takes into account whether there is any
free time on the trip, as well as the amount of free time, being offered to the
traveler.
Extending a Trip at Personal Expense. Provided that the officially-connected
purpose of the trip remains the primary purpose of the trip, travelers may be
permitted to extend trips (in connection with either one-day or multiple-day travel)
at their own expense and on their own time and still accept return transportation.
10
Subject to the same condition, a traveler may depart early for the initial location of
a trip and take personal days there, at the individual‘s own expense, before the
start of the officially-connected part of the trip, and still accept outbound
transportation from the trip sponsor.
11
However, a traveler will not be permitted to
9
House Bipartisan Task Force on Ethics,
Report on H.R. 3660
, 101
st
Cong., 1
st
Sess. 6
(Comm. Print, Comm. on Rules 1989), reprinted in 135
Cong. Rec
. 30740, 30742 (1989).
10
See also the discussion below concerning ―Mixed Purpose Trips.‖
11
In this regard, the rule provides that one may be permitted to accept necessary
transportation, ―whether or not such transportation occurs within‖ the four- and seven-day periods
established in the rule (House Rule 25, clause 5(b)(4)(B)).
Travel
95
accept additional reimbursements to cover the costs of personal travel. Moreover,
as a general rule, when the number of days for personal travel exceeds the number
of days of the privately-sponsored trip, the gift rule does not permit acceptance of
round-trip transportation from the private source. Especially with regard to
extending a one-day event trip at one‘s own personal expense, Members and staff
should consult the Committee‘s Office of Advice and Education for guidance before
arranging the travel.
Example 1.
A private university invites a staff person to participate in
a five-day conference in London. After the conference ends, she wishes
to take four vacation days in Europe. The staff person will be
permitted to accept reimbursement from the university for her
expenses in London and for the cost of round-trip airfare to and from
London. She may then continue her travels at her own expense. If the
extension of the trip results in higher airfare for the flights between
the U.S. and London than would have been charged had the trip not
been extended, the staff person must personally pay the difference.
―Stacking‖ Trips. A Member, officer, or employee may be permitted to travel
beyond applicable time limits if the individual is participating in consecutive but
distinct trips, sponsored by different organizations. To qualify for ―stacking,‖ the
trips and their purposes, sponsors, and participants must be truly distinct. When
these circumstances are present, a new time limit commences with the onset of
travel to, or participation in, a separate, subsequent event.
Example 2.
A staff person receives an invitation from a corporation to
participate in a fact-finding tour of Yellowstone National Park that
will depart from Washington on February 1 and return on February 4.
The staff person also receives a separate invitation from a nonprofit
organization to attend a conference in Phoenix from February 4
through 7. Neither entity retains or employs lobbyists. The staffer
may be permitted to ―stack‖ these trips because they are separate and
distinct.
Ban on Lobbyist Accompaniment and Other Involvement
In addition to prohibiting Members and staff from accepting officially-
connected travel from a private source that retains or employs lobbyists or agents of
a foreign principal, for most trips the travel provisions of the gift rule prohibit
Members and staff from accepting travel from a private source if the official will be
accompanied by a lobbyist or agent of a foreign principal on ―any segment‖ of the
trip (House Rule 25, clause 5(c)(1)(A)). The term ―segment‖ means any part(s) of the
travel to and from the destination, rather than the event itself or location being
visited that is the purpose of the trip. Whether a lobbyist may be involved in
96 HOUSE ETHICS MANUAL
planning, organizing, requesting, or arranging a trip also depends on the source of
the travel expenses.
One-Day Event Trips. Accompaniment by a lobbyist or agent of a foreign
principal on ―any segment‖ of a one-day event trip is prohibited. In addition, under
the travel guidelines and regulations issued by the Standards Committee no more
than ―de minimis‖ involvement of a lobbyist or agent of a foreign principal is
permitted in terms of planning, organizing, requesting, or arranging a one-day
event trip (House Rule 25, clause 5(c)(2)). To be permissible, the involvement of a
lobbyist or agent of a foreign principal in connection with the trip must be ―only
negligible or otherwise inconsequential in terms of time and expense to the overall
planning purpose of the trip.‖
12
Accordingly, it would be permissible for a lobbyist to respond to a private
sponsor‘s request that the lobbyist identify Members and staff with a possible
interest in a particular issue relevant to a planned trip, provided that the request
was not initiated by the lobbyist or agent of a foreign principal, and that the
lobbyist or agent of a foreign principal does not determine which Members or staff
are actually invited on the trip. A lobbyist or agent of foreign principal may not
initiate contact with trip sponsors or planners for purposes of suggesting possible
House invitees, nor may a lobbyist or agent of a foreign principal have any other
role in planning, organizing, requesting, or arranging the trip, other than possibly
providing the names of possible invitees as described above. Thus, in order for a
Member or staff person to receive Committee approval for a trip, a lobbyist or agent
of a foreign principal should not be involved in –
Selecting the destination of the trip;
Drafting the trip agenda; or
Accompanying Members and staff on the trip, except as otherwise permitted
under the rules.
Multiple-Day Trips. Accompaniment by a lobbyist or foreign agent is
prohibited on any travel segment of a multiple-day trip. Members and staff are
prohibited from participating in any multiple-day trip that was planned, organized,
requested, or arranged by a lobbyist or agent of a foreign principal.
Trips Sponsored by an Institution of Higher Education. Unlike the types of
trips described above, accompaniment by a lobbyist or foreign agent is permitted on
trips sponsored by an institution of higher education. Lobbyist involvement in
12
Comm. on Standards of Official Conduct,
Travel Guidelines and Regulations
, at 4 (Feb. 20,
2007) (reprinted in the appendices).
Travel
97
planning, organizing, requesting, or arranging a trip paid for by an institution of
higher education is also permitted.
Proper Sources of Expenses for Officially-Connected Travel
Among the factors the Committee considers in evaluating a Member or staff
person‘s request for approval to accept officially-connected travel paid for by a
private source is the relationship of that source to the event or location being visited
that is the purpose of the trip. Pursuant to the Committee‘s travel guidelines and
regulations –
Expenses may only be accepted from an entity or entities that
have a significant role in organizing and conducting a trip, and that
also have a clear and defined organizational interest in the purpose of
the trip or location being visited. Expenses may not be accepted from a
source that has merely donated monetary or in-kind support to the trip
but does not have a significant role in organizing and conducting the
trip.
13
Even prior to the issuance of the travel guidelines and regulations, the
Committee had long taken the position that a Member, officer, or employee may
accept expenses for officially-connected travel only from a private source that has a
direct and immediate relationship with the event or location being visited.
14
Thus,
the Committee found a violation of the gift rule when a Member accepted travel
expenses from an organization that was
not
the sponsor of his speaking
engagements.
15
Example 3.
A nonprofit organization that is active on defense-related
issues is holding a conference in New York City. A defense contractor
in a Member‘s district learns of the conference and believes the
Member‘s legislative assistant would benefit by attending. The
Committee will not approve the staff member‘s acceptance of the
contractor‘s offer of travel expenses to the event, because the
contractor does not have a direct and immediate relationship with the
conference.
The rule and implementing regulations are concerned with the
organization(s) or individual(s) that actually pay for travel. Thus, for example,
13
Id.
at 3.
14
See
,
e.g.
, House Comm. on Standards of Official Conduct,
Investigation of Financial
Transactions participated in and Gifts of Transportation Accepted by Representative Fernand J. St
Germain
, H. Rep. 100-46, 100
th
Cong., 1
st
Sess. 5-6 (1987).
15
See id
.
98 HOUSE ETHICS MANUAL
when a nonprofit organization pays for travel with donations that were earmarked,
either formally or informally, for the trip, each such donor is deemed a ―private
source‖ for the trip and (1) must be publicly disclosed as a trip sponsor on the
applicable travel forms and (2) must itself be required to satisfy the above
standards on proper sources of travel expenses.
16
The rule requires that a private
entity (or entities) that pays for officially-connected travel will organize and conduct
the trip, rather than merely pay for a trip that is in fact organized and conducted by
another entity. Thus, in order for a Member or staff person to receive Committee
approval to accept officially-connected travel from a private source, the source must
certify to the Committee that it has not accepted from any other source funds
earmarked directly or indirectly to finance any aspect of the trip. The sponsor must
also certify that the trip was not financed (in whole or in part) by a federal lobbyist
or agent of a foreign principal.
Relationship Between the Event (Including Its Location) and the Officially-
Connected Purpose of the Trip
The Committee‘s travel guidelines distinguish between –
Travel to events or locations arranged or organized without regard to
congressional participation (
e.g.
, annual conferences of business or trade
associations, seminars, symposiums, meetings of professional societies,
etc.
);
and
Travel organized specifically for congressional participation, such as fact-
finding trips, site visits, educational conferences, and other trips designed for
congressional attendance.
For travel falling within the former category, the Committee recognizes that
flexibility is needed in authorizing travel to events that are organized principally for
the benefit of non-congressional attendees. Accordingly, the guidelines treat the
location of such events as presumptively valid. While travel to an event or location
may be deemed to be presumptively valid, Members and staff must still
demonstrate either that the purpose of the trip is related to the individual‘s official
and representational duties, or that the purpose of the trip relates to matters within
the legislative or policy interests of Congress. In addition, there must be sufficient
officially-connected activities for the House participants during
each
day of the trip.
For trips designed specifically for Members and staff, the guidelines require
that the location being visited must be necessary to the purpose of the trip, or if
more than one possible location may be relevant to the purpose of the trip, the
16
The result would be the same when, for example, a major donor to a nonprofit organization
has a significant role in organizing or conducting a trip to which the nonprofit issues invitations.
Travel
99
location selected must be reasonable in relation to the alternatives. Factors to be
used to evaluate the reasonableness of a location include the nature of the event
and its participants. For example, a fact-finding trip regarding a particular
industry may be appropriate at one or more locations that have a connection to the
industry, but the trip would likely not be appropriate if the destination is a resort
location with no connection to the industry. In other words, the selected location
should not create the appearance that the Member, officer, or employee attending
the event is using his or her public office for personal gain.
Prohibition Against Accepting Local Travel Expenses. The travel provisions
of the gift rule do not allow Members or staff to accept what are essentially local
meals, local lodging, or local transportation. Thus in order to be within the rule, a
trip must have a destination beyond the metropolitan Washington area, or beyond
the Member‘s district, as the case may be. The Committee has taken the position
that as a general matter, the site to be visited at private expense must be at least 35
miles from the U.S. Capitol or, for travel in or near one‘s congressional district, at
least 35 miles from the district office.
In addition, because official allowances are provided to cover travel expenses
of both Members and staff between Washington, D.C., and the congressional
district, House Rule 24 (clauses 1-3), which generally prohibits private subsidy of
official activity, is also relevant to local travel. Under House Rule 24, a Member or
staff person generally is not permitted to accept expenses from a private source for
a fact-finding trip to or within one‘s own district. For the same reason, district
office staff are not permitted to accept travel expenses from a private source for the
purpose of fact-finding in the Washington, D.C. area. However, an exception exists
when a Member or employee is traveling as part of a group that includes Members
or staff representing at least two other congressional districts. In that
circumstance, the Committee does not interpret House Rule 24 to require the
official to separate from the group to avoid going into his or her own district.
The Committee does not deem the occasional acceptance of travel expenses to
give a speech in one‘s own district or in the Washington, D.C. area, or otherwise to
participate substantially in an event, to violate House Rule 24.
As a related matter, the Committee will generally approve the acceptance of
expenses only to or from Washington, D.C., or another duty station. The traveler
generally may not accept additional expenses for stopovers that are unrelated to the
purpose of the trip.
Acceptable Travel Expenses
Under the travel provisions of the gift rule, Members and staff may accept
reasonable expenses for transportation, lodging, and meals from the private sponsor
of an officially-connected trip, but they may not accept recreational activities or
100 HOUSE ETHICS MANUAL
entertainment. Specifically, these provisions state that a Member, officer, or
employee may accept ―necessary transportation, lodging and related expenses‖
(House Rule 25, clause 5(b)(1)(A)). They further state that the quoted phrase ―is
limited to reasonable expenditures for transportation, lodging, conference fees and
materials, and food and refreshments‖ (
id
., clause 5(b)(4)(B) (emphasis added)).
The travel provisions also state that one may not accept ―expenditures for
recreational activities,‖ or ―entertainment other than that provided to all attendees
as an integral part of the event, except for activities or entertainment otherwise
permissible under this clause‖ (
id
., clause 5(b)(4)(C)). A gift of entertainment or
recreational activities may be acceptable under other provisions of the gift rule, but
only
if valued at less than $50 and provided by a non-prohibited source.
17
(See
Chapter 2 on gifts for further information). Members and staff therefore may not
accept any entertainment or recreation during a trip if the sponsor of the trip
retains or employs registered lobbyists or agents of a foreign principal. In general,
any gift given to the relative of a Member or staff person is deemed to be a gift to
the official and, thus, will be acceptable only as permitted under the gift rule, and
an otherwise permissible gift will count against the per-gift and annual limits of the
Member or staff person.
The Standards Committee has issued guidelines for judging the
reasonableness of travel expenses that Members, officers, and employees are
permitted to accept from a private source for officially-connected travel. The
guidelines, along with the regulations concerning one-day event trips, are reprinted
in the appendices. The provisions addressing the reasonableness of travel expenses
distinguish between transportation expenses on the one hand, and lodging and food
expenses on the other. A brief description of the guidelines follows.
Transportation Expenses. Members and staff may accept coach and
business-class air or train fare from a private source. However, first-class air or
train fare, travel aboard chartered flights and trains, and private aircraft flights are
permitted only under
limited
conditions, such as when the cost of such fare does not
exceed business-class transportation (including when the traveler‘s frequent flyer or
similar benefits are used to upgrade to first class), first-class travel is necessary due
to a disability of the traveler, there are genuine security concerns such that first-
class fare is required, or the flight is in excess of 14 hours. The Committee may also
approve first-class air or train fare, chartered travel, or private aircraft when
exceptional
circumstances are demonstrated in writing by the private source.
Lodging and Food Expenses. As noted previously, the Committee‘s travel
guidelines distinguish between travel for –
17
Receipt of the gift of entertainment or recreation must also be consistent with the annual
gift limit of less than $100 from any source, assuming acceptance of the gift is otherwise permissible.
Travel
101
Events organized without regard to congressional participation; and
Those organized specifically for congressional participation.
For events falling within the former category, the Committee recognizes that
flexibility is needed in authorizing lodging and food expenses in order for Members
and staff to participate in or appear at events that are organized principally for the
benefit of non-congressional attendees. The guidelines therefore permit Members
and staff to accept lodging and food that is commensurate with what is customarily
provided to or purchased by the non-congressional attendees in similar
circumstances.
With regard to events designed specifically for congressional participation,
the guidelines specify that ―reasonable‖ lodging and food expenses may be accepted.
In judging the reasonableness of food expenses, the Committee considers the
maximum
per diem
rates for meals and incidental expenses for official government
travel published by the General Services Administration or, for international travel,
the maximum rate for meals and incidental expenses published by the State
Department. The pertinent
per diem
rate schedules are available on each agency‘s
website.
Accompanying Relative
It is permissible for a Member, officer, or employee participating in officially-
connected travel paid for by a private source to be accompanied by a relative on the
trip (House Rule 25, clause 5(b)(4)(D)).
18
This provision does not allow the
acceptance of travel expenses for any accompanying individual other than a
relative. Further, this provision allows the acceptance of expenses for only one
relative. For example, a Member, officer, or employee, if offered by the sponsor,
may accept expenses for a spouse or one child only, not a spouse and a child.
19
The
travel expenses paid for a relative must be specified by the private source and
traveler on the pre-travel forms and reported on travel disclosure forms in the same
manner as those paid for the Member, officer, or employee.
18
The accompaniment provision of the gift rule was amended on January 4, 2005 (
see
H. Res.
5, 109
th
Cong., 1
st
Sess. (151
Cong. Rec.
H13 (daily ed. Jan. 4, 2005)). Previously, the gift rule
permitted a Member, officer, or employee to be accompanied by a ―spouse or child‖ but not by any
other relative.
19
A Member, officer, or employee who wishes to be accompanied on a trip by more than one
such individual, or by an individual other than a relative, may personally pay the travel expenses of
that individual, or may apply to the Committee for a gift rule waiver. However, the Committee will
grant such a waiver only in exceptional circumstances.
102 HOUSE ETHICS MANUAL
Example 4.
A Member is invited by organization Y to give a speech in
Dallas on Saturday. Organization Z issues an unrelated invitation to
the Member to address its members in Dallas on Sunday. Each group
offers to pay expenses for the Member and one family member. The
Member may bring only one family member to Dallas at the sponsors‘
expense. She may
not
bring her husband at the expense of
organization Y and her child at the expense of organization Z because
such an arrangement would violate the one-relative restriction of the
gift rule.
Example 5.
A Member is invited to give a speech. The sponsoring
organization offers the Member and his wife business-class airfare.
The Member would like to bring his child as well. He may
not
trade in
the two business-class tickets for three economy-class tickets. Even if
the sponsor would pay less for the three economy-class tickets than for
the two business-class tickets, to allow the Member to accept expenses
for his wife
and
child would violate the spirit of the one-relative
restriction of the gift rule.
It is possible for a staff person to participate in a trip along with the
individual‘s employing Member, provided that the entity sponsoring the travel
provided an unsolicited invitation to the staff person to participate in the trip, the
Member reasonably determines that the staff person‘s participation would be in
connection with the individual‘s official duties, and both the Member and staff
person seek and obtain the Committee‘s approval to accept travel expenses before
the trip.
At times a private organization has invited only the spouses of Members to
participate in a trip. Participation in such a trip, in the capacity as the spouse of a
Member, would be deemed a gift to the Member. However, the gift rule does not
include a provision that permits the acceptance of such ―spouse only‖ travel under
these circumstances. Instead, as detailed above, the rule allows the acceptance of
expenses for spouse travel only when the spouse is accompanying the Member.
Nevertheless, depending on the circumstances involved – including the
purpose and itinerary of the trip, and the expenses proposed to be covered – the
Standards Committee may consider granting a gift rule waiver to enable a spouse to
participate on such a spouse-only trip. For further information on the provision of
the gift rule that authorizes the Committee to grant waivers in certain
circumstances, see Chapter 2 on gifts. When the Committee has granted a waiver
for such spouse travel in the past, it has required that the trip be publicly reported
in the same manner that Member travel is reported, (
i.e.
, on a Member Travel
Disclosure form filed with the Clerk‘s office, and on Schedule VII of the Member‘s
annual Financial Disclosure Statement). It would also be necessary for the spouse
Travel
103
to submit the necessary Private Sponsor Form and Traveler Form in order to
receive Committee approval before the trip.
Travel of Members and Staff Leaving Office
Because, as detailed above, officially-connected travel must be related to
official duties, it is questionable whether, after the
sine die
adjournment of the
House, a Member leaving office or an employee leaving House employment will be
permitted to accept an invitation for a trip that is fact-finding in nature. As of that
time, the official responsibilities that may justify the acceptance of travel expenses
for such a purpose will practically have come to an end. However, this
consideration generally will not limit the Committee‘s authority to approve travel of
such a departing Member or employee for the individual to participate substantially
in an officially-related event (for example, to give a speech).
Requirements for Pre-Travel Certification, Standards Committee Approval, and
Post-Travel Disclosure
In implementing the requirements of the rules regarding privately-sponsored
travel, the Standards Committee has issued three forms: (1) a Private Sponsor
Form; (2) a Traveler Form (which includes a signed statement for Member advance
authorization of employee travel); and (3) Member/Officer and Employee Post-
Travel Disclosure Forms. The forms are available on the Standards Committee‘s
website. A brief discussion of pre-travel certification, Committee approval, and
post-travel disclosure requirements follows.
Pre-Travel Certification by Sources of Private Travel. Under the travel
provisions of the gift rule, both certification by the private source of a variety of
travel-related facts and approval of the travel by the Committee are required before
Members and staff may accept travel from a private source for all officially-
connected trips (
i.e.
, regardless of whether the private source retains or employs a
lobbyist). To receive Committee approval, Members and staff must provide the
Committee with written certification from the private source as to the following:
The trip will not be financed in any part by a lobbyist;
That (1) the source does not retain or employ a lobbyist, (2) the source is an
institution of higher education, or (3) the trip meets the requirements for
travel to a one-day event and the source describes the de minimis
involvement of a lobbyist in planning, organizing, requesting, or arranging
the trip;
No funds from another source were earmarked for any aspect of the trip;
The traveler will not be accompanied by a lobbyist, except for a trip
sponsored by an institution of higher education; and
104 HOUSE ETHICS MANUAL
The trip, except as otherwise permitted in the rules for one-day event trips
and trips sponsored by an institution of higher education, will not be planned,
organized, requested, or arranged by a lobbyist (House Rule 25, clause
5(d)(1)).
A private sponsor offering officially-connected travel to a Member or staff
person must complete and sign a Private Sponsor Form, and provide a copy of that
form to each House invitee – not directly to the Committee. The Committee has
issued detailed instructions (also available on the Committee‘s website) to assist
sponsors in completing the necessary form.
Committee Approval. Every Member, officer, or employee wishing to
participate in an officially-connected trip must receive approval from the Committee
before accepting travel funded by a private source. Acceptance of travel from a
private source for an unapproved trip is a violation of House rules. A Member or
staff person seeking approval for a trip must submit to the Committee a completed
and signed Traveler Form along with the Private Sponsor Form. For staff travel,
the Traveler Form must include a signed statement by the supervising Member of
advance authorization of employee travel. Members and staff are advised to
maintain copies of all completed forms for their own records. As discussed below,
certain forms are required to be included with the public filing with the Clerk of the
House following return from the travel.
As indicated on the forms, any request for approval of private sponsored
travel should be submitted to the Standards Committee at least 30 days before the
commencement of the trip. That 30-day time period is necessary to allow the
Committee ample time to review the submission and give final approval, while still
permitting sufficient time for the traveler to make the necessary travel
arrangements.
Post-Travel Disclosure. Members and staff are required to file with the Clerk
of the House ―all advance authorizations, certifications, and disclosures,‖ and the
Clerk is required to make all of that information available for public inspection as
soon as possible after receipt (House Rule 25, clause 5(b)(5)). Post-travel disclosure
forms must be completed, signed, and filed with the Legislative Resource Center of
the Clerk of the House (Room B-106, Cannon House Office Building) within 15 days
after the travel is completed.
20
It is a violation of House rules not to file the
20
Under the rules in effect prior to the 110
th
Congress, disclosures were required be filed
within 30 days after the traveler returned from the officially-connected trip.
When a Member or employee files a form beyond the 15-day period provided by the rule, the
individual should also send a letter to the Standards Committee stating the reasons for the late
filing.
Travel
105
necessary disclosure within that time period. On their post-travel disclosure forms,
Members and staff are required to provide a description of the ―meetings and events
attended,‖ in addition to other information required to be disclosed under the rule
(House Rule 25, clause 5(b)(3)(F)). The Clerk‘s office forwards a copy of each
disclosure form as filed to the Standards Committee for review.
Members and officers, as well as employees who file a Financial Disclosure
Statement, must also disclose travel and travel-related expenses provided by a
private source valued at more than $335 on Schedule VII of their annual statement.
Travel Unrelated to Official Duties Paid for by a Private Source
Several provisions of the gift rule allow Members and staff to accept travel
unrelated to official duties from a private source, provided that certain conditions
are satisfied. Of these, the two most important are the provision on benefits
resulting from outside business, employment or other activities, and the provision
on gifts given on the basis of personal friendship. All of these provisions are
explored in detail in Chapter 2, and only their applicability to travel is discussed
here.
Travel Resulting From Outside Business, Employment, or Other Activities
Subject to two restrictions described below, a Member, officer, or employee
may accept transportation, lodging, meals, and other benefits that result from any
of the following activities:
Outside business or employment activities of the Member or staff person;
Other outside activities of the Member or staff person that are not connected
to the duties of the individual as an officeholder; or
Outside business or employment activities of the spouse of the Member or
staff person.
The restrictions on the acceptance of such travel are that (1) the benefits may
not have been offered or enhanced because of the official position of the Member or
staff person, and (2) the benefits must be ones that are ―customarily provided to
others in similar circumstances‖ (House Rule 25, clause 5(a)(3)(G)(i)). These are the
sole restrictions that apply to travel taking place under this provision of the gift
rule. Travel of this type is not subject to the requirement for pre-travel Committee
approval, the post-travel disclosure requirement, or the other specific restrictions
that apply to officially-connected travel that is paid by a private source, such as the
time limits on travel, the limitation that only a spouse or child may accompany the
traveler, or the prohibition on recreational activities.
106 HOUSE ETHICS MANUAL
Example 6.
A staff person‘s son is a Boy Scout. The Boy Scouts of
America offer the staff person an all-expense-paid week-long trip to the
Grand Canyon if he will chaperone the scouts. He may accept,
provided that the trip was not offered because of the staff person‘s
official position.
Example 7.
A Member‘s wife is a lawyer with a private law firm.
Every year the firm invites all of its lawyers and their spouses to a
weekend retreat at a resort hotel. This retreat would be offered to the
Member‘s wife regardless of the identity of her spouse. Both the
Member and his wife may accept the invitation.
Example 8.
A staff person‘s spouse works as a flight attendant for an
airline that offers free travel to all employees and their immediate
families to the extent that seats are available. The staff person may
accept the free flights.
Example 9.
A Member has written a book, and her publisher offers to
send her on a book tour around the country. The Member may accept,
provided that the tour is comparable in duration and benefits to those
that the publisher has provided to similarly situated authors in the
private sector.
Example 10.
A Member is an uncompensated member of the board of
directors of a corporation. The corporation provides transportation,
lodging, and meals to each of its directors in connection with its
monthly board meetings, and in connection with the corporation‘s
annual meeting, all of which occur in San Francisco. The Member may
accept this travel from the corporation.
As a related matter, a Member, officer, or employee may also accept
transportation, lodging, meals, and other benefits ―customarily provided by a
prospective employer in connection with bona fide employment discussions‖ (House
Rule 25, clause 5(a)(3)(G)(ii)).
As noted above, travel resulting from such outside business, employment, or
other activities should not be reported on the 15-day Travel Disclosure Forms that
are filed with the Clerk. Those forms are for the reporting of officially-connected
travel only. However, as with officially-connected travel, travel resulting from
outside activities that exceeds $335 in value in a calendar year must be reported on
Schedule VII of the annual Financial Disclosure Statements of Members and
officers, and of those employees required to file an annual statement.
Travel
107
Gift of Travel Given on the Basis of Personal Friendship
Like gifts of other kinds, a gift of travel that is given on the basis of personal
friendship may be accepted, unless the Member or staff person has reason to believe
that, under the circumstances, the gift was provided because of his or her official
position with the House, and not because of the personal friendship (House Rule 25,
clause 5(a)(3)(D)). The specifics of the gift rule provision on personal friendship
gifts are explored in Chapter 2, in the section entitled ―Gifts Given on the Basis of
Personal Friendship.‖ Before accepting any gift of travel under this provision, a
Member or staff person should review that section carefully.
There is an important limitation on the acceptance of gifts of travel under
this provision. A gift exceeding $250 in value – and any significant travel will
almost certainly exceed that amount – may not be accepted on the basis of personal
friendship unless the Standards Committee issues a written determination that the
personal friendship provision applies. Thus, if the travel will exceed $250 in value,
an advance written request for approval must be submitted to the Committee. The
Committee keeps any such request, as well as its response, confidential.
Note also, however, that travel accepted on the basis of personal friendship
that exceeds $335 in value must be reported on Schedule VI of the annual Financial
Disclosure Statement of a Member, officer, or filing employee, unless the Committee
waives the reporting requirement. The Committee will consider written requests
for waiver of the reporting requirement, but such waiver requests are made publicly
available. Additional information on reporting of gifts and the standards for
granting a waiver is provided in the Financial Disclosure Instructions booklet
issued by the Standards Committee.
Other Gift Rule Provisions
Three other gift rule provisions under which travel unrelated to official duties
may be accepted are as follows.
First, the rule allows the acceptance of certain opportunities and benefits
that are similarly available to individuals outside the House (House Rule 25, clause
5(a)(3)(R)). Under this provision, for example, flights obtained through an airline‘s
frequent flier program, when the miles are accumulated through one‘s own travel,
may be accepted. This provision is more fully explained in the gifts publication, in
the section entitled ―Widely Available Opportunities and Benefits.‖
Second, the provision allowing the acceptance of honorary degrees also allows
the acceptance of travel associated with the presentation of the degree (House Rule
25, clause 5(a)(3)(K)).
108 HOUSE ETHICS MANUAL
Finally, the rule provides that a Member, officer, or employee may accept
―[a]nything for which the [official] pays the market value‖ (House Rule 25, clause
5(a)(3)(A)). However, under a new rule adopted in the 110
th
Congress, Members
generally may not use personal funds to pay for a flight on a non-commercial
aircraft.
See
the section ―Use of Non-Commercial Aircraft is Generally Prohibited,‖
below.
Travel Paid for by the Federal Government, or by State or Local
Government
Under the gift rule, Members, officers, and employees may accept travel that
is ―paid for by the Federal Government, [or] by a State or local government‖ (House
Rule 25, clause 5(a)(3)(O)). This provision is fully explained in Chapter 2 on gifts.
The gift rule includes no restrictions on the ability of Members and staff to accept
travel offered by such a governmental entity, whether in terms of trip duration,
accompanying individuals, or otherwise. Such travel is not subject to the
requirements for pre-travel Committee approval following private sponsor
certification, the post-travel disclosure requirement, or the various specific
restrictions that apply to officially-connected travel that is paid by a private
source.
21
Nor does this type of travel need to be disclosed on one‘s annual Financial
Disclosure Statement. The matter of travel paid for or authorized by the House is
further addressed below.
Travel Paid for by a Foreign Government
The basic laws and rules on gifts from foreign governments are explained in
Chapter 2 on gifts. As is detailed there, the Constitution prohibits federal
government officials from accepting any gift from a foreign government without the
consent of Congress, and Congress has consented to the acceptance of certain gifts
from foreign governments – including travel in limited circumstances – in two
enactments: the Foreign Gifts and Decorations Act (―FGDA‖)
22
and the Mutual
Educational and Cultural Exchange Act (―MECEA‖).
23
A Member, officer, or
employee may accept travel expenses from a unit of foreign government only under
one of these two statutory grants of authority.
Members and staff may be offered expenses from private organizations,
unaffiliated with any government, for foreign travel. As discussed previously, the
ability to accept such expenses is subject to the gift rule limitations, including the
21
For example, the rule permits the acceptance of travel paid for by a state university
without the requirements described above. However, travel paid for by a private university is
subject to Committee pre-approval.
22
5 U.S.C. § 7342.
23
22 U.S.C. § 2458(a).
Travel
109
requirement for pre-approval. While on such travel, a foreign government may offer
to pay for the in-country travel expenses of a Member or staff person. Such travel
may be acceptable under the FGDA.
24
However, when FGDA travel is taken in
connection with a trip that is otherwise paid for with funds from a private source
that does not retain or employ registered lobbyists or agents of a foreign principal
(or from an institution of higher education), the trip is subject to the seven-day
limit.
In addition, Members and staff may accept travel to a foreign country from a
foreign government that participates in a MECEA program. Travel authorized
under MECEA is not subject to the time limits that apply to officially-connected
travel that is paid for by a private source.
Travel Expenses From a Foreign Government under FGDA
Under the FGDA, any travel paid for by a foreign government must take
place totally outside of the United States, must be consistent with the interests of
the United States, and must be permitted under FGDA regulations issued by the
Standards Committee.
25
The intent of this provision, as noted in the Committee‘s
regulations (§ 6(e)), is to allow an individual who is already overseas (as on a
CODEL or third-party sponsored fact-finding trip) to take advantage of fact-finding
opportunities offered by the host country. Therefore, under the FGDA, the Member
or employee may not
accept expenses for transportation from the United States to
the foreign destination or back home. This rule may not be circumvented by having
a foreign government pay for transportation to or from a point just outside the
United States border.
The regulations issued by the Standards Committee under the FGDA state
that any travel paid for by a foreign government must relate ―directly to the official
duties of the Member, officer or employee.‖
26
The regulations also allow the
acceptance of travel expenses by an accompanying spouse or dependent. Travel or
expenses ―may not be accepted merely for the personal benefit, pleasure, enjoyment
or financial enrichment of the individual or individuals involved.‖
27
The FGDA and
the Committee‘s implementing regulations also cover gifts from
―quasi-governmental‖ organizations closely affiliated with, or funded by, a foreign
24
In-country foreign travel may also be permissible under the FGDA when a Member or staff
person is already in the foreign country while on official travel paid for by House or with other
appropriated funds.
25
See
Regulations for the Acceptance of Decorations and Gifts (Including Travel or Expenses
for Travel, by Members, Officers, and Employees of the House of Representatives) from Foreign
Governments
(hereinafter ―
FGDA Regulations
‖) (reprinted in the appendices of this Manual).
26
FGDA Regulations
§ 6(e).
27
Id
.
110 HOUSE ETHICS MANUAL
government, as well as any international or multinational organizations with
membership composed of foreign governments.
A gift of travel permitted under the FGDA and accepted by a Member or
employee must be disclosed within 30 days after leaving the host country.
28
The
Committee provides a form for this purpose. Copies of the form are available on the
Committee‘s website. Under the Committee‘s foreign gifts regulations, the
disclosure forms filed by Members and staff are publicly available at the Committee
office, and their contents are published in the
Federal Register
on an annual basis.
29
Such travel need not be reported on the annual Financial Disclosure Statement of
the traveler.
Travel Expenses From a Foreign Government under MECEA
MECEA authorizes the Secretary of State to approve cultural exchange
programs that finance ―visits and interchanges between the United States and
other countries of leaders, experts in fields of specialized knowledge or skill, and
other influential or distinguished persons . . . .‖
30
The Committee understands
that approval of a MECEA program will be reflected in a letter from the State
Department (or the U.S. Information Agency, its statutory predecessor) to a
representative of the foreign government, and that the Department maintains a list
of the approved programs. The Committee also keeps a list of the approved
programs on file.
Members and employees of the House may accept travel expenses from a
foreign government in order to participate in an approved MECEA program.
31
Expenses for MECEA trips are not considered gifts, either for the purposes of the
House gift rule or the FGDA. Under MECEA, however, the traveling Member or
employee may not accept travel expenses for a spouse or family member.
32
All
travel expenses in a MECEA trip are to be paid by the sponsoring foreign
government, and none of the trip expenses may be paid by any private source.
It is the responsibility of a Member or staff person who accepts an invitation
to travel to a foreign country to confirm that the expenses for travel to and from the
United States are not paid for by a foreign government, unless the trip is consistent
with an approved MECEA program. Accordingly, when one is invited on a trip that
the sponsoring organization describes as permissible under a MECEA program, it is
28
Id.
§§ 6(e), 7(b); 5 U.S.C. § 7342(c)(3).
29
FGDA Regulations
§ 8.
30
22 U.S.C. § 2452(a)(2)(i).
31
22 U.S.C. § 2458a(1).
32
Id
.
Travel
111
advisable for the invitee to ask that organization for a copy of the letter from the
State Department approving the program. In addition, the Committee understands
that the Department will, upon request, review specific trips and advise whether a
trip is consistent with an established MECEA program. Such advice can be
requested by either the sponsoring organization or an invitee, and obtaining such
advice from the Department is the best way to ensure compliance with the statute.
A MECEA trip is not subject to the time limits applicable to officially-
connected travel paid for by a private source, or to the requirements for pre-travel
Committee approval following private sponsor certification. Nor should the trip be
reported on a Member/Officer or Employee Travel Disclosure Form (those forms are
filed for privately funded travel only), or on an FGDA form. However, Members,
officers, and employees who are required to file an annual Financial Disclosure
Statement must report any MECEA trip in which they participated on Schedule VII
of that form. The foreign governmental entity that paid for the travel should be
identified as the ―source‖ of the travel in Schedule VII, and the filer also should note
parenthetically that it was a MECEA trip.
Example 11.
The Chinese Agricultural Ministry invites the Members
of the Agriculture Committee on a ten-day tour of Chinese farm
cooperatives. The tour is not part of an approved cultural exchange
program. The Members may, consistent with the FGDA, accept
expenses for themselves and their spouses while they are in China, but
they may not accept airfare to and from China from the Chinese
government. They must disclose the receipt of these expenses for
themselves and their spouses on an FGDA disclosure form within 30
days of leaving China. They need not report the trip on their annual
Financial Disclosure Statements.
Example 12.
A public university in Germany invites a Member to
attend a two-week seminar and discussion series with German leaders
at the school. This trip is pursuant to a program that has been
approved under MECEA. The Member may accept expenses for travel
to and from Germany and related expenses for her two-week stay. If
she wishes to bring her husband, she must do so at personal expense.
She must disclose the trip on Schedule VII of her annual Financial
Disclosure Statement.
Travel Paid for by a Political Organization
Under the gift rule, a Member, officer, or employee may accept
transportation, lodging, and other benefits provided by a political organization in
connection with a fundraising or campaign event sponsored by that organization
112 HOUSE ETHICS MANUAL
(House Rule 25, clause 5(a)(3)(G)(iii)). The term ―political organization‖ is defined
in this provision by reference to § 527(e) of the Internal Revenue Code.
33
In addition, a Member may travel at the expense of his or her campaign
committee when the primary purpose of the travel is campaign or political in
nature. For further information on the proper use of campaign funds, see Chapter 4
on campaign activity. Arrangements for travel to be paid for by a political
organization (for example, the booking of flights or hotel reservations) should not be
made in a congressional office, and any staff persons traveling on political funds
must do so on their own time. In addition, House rules prohibit Members from
using campaign funds, among other sources, to pay for a non-commercial flight (
see
discussion below). Members wishing to accept travel, including any flight on a non-
commercial aircraft, as an in-kind campaign contribution should contact the
Federal Election Commission for guidance on whether the acceptance of the travel
would be permissible under the Federal Election Campaign Act and implementing
regulations.
Travel paid for by a political organization is not subject to the requirements
for pre-travel Committee approval, and should not be reported on the 15-day Travel
Disclosure Forms that are filed with the Clerk, as those forms are for the reporting
of officially-connected travel only. Travel paid for by a political organization must
be reported on one‘s annual Financial Disclosure Statement only if that travel is not
required to be reported on an expenditure report filed with the Federal Election
Commission. Accordingly, travel paid for by, for example, a congressional campaign
committee generally will not have to be reported on one‘s Financial Disclosure
Statement. However, travel paid for by a state or local political organization will
have to be reported on Schedule VII of that form.
Official Travel
The term ―official travel‖ refers to travel paid for or authorized by the House.
Official travel includes travel paid for out of the Members‘ Representational
Allowance or with committee funds, as well as the travel of Members or staff abroad
as part of a CODEL or a STAFFDEL.
The basic rules and regulations governing official travel paid for with funds
from the Members‘ Representational Allowance, or with committee funds, are
established by the Committee on House Administration. Those rules are set forth
in two publications of that committee – the
Members‘ Handbook
, and the
33
Briefly stated, under that statute, a political organization is an entity organized and
operated primarily for the purpose of accepting contributions or making expenditures for the purpose
of influencing the election of any individual to a public or political office.
Travel
113
Committees‘ Handbook
. Guidance on those rules should be sought from the
Committee on House Administration.
Official travel to a foreign country may be authorized by the Speaker under
clause 10 of House Rule 1, or by a committee chair. Such travel is subject to the
requirements set forth in 22 U.S.C. § 1754, as well as clause 8 of House Rule 10 (on
funding of foreign travel), and clause 10 of House Rule 24 (prohibiting such travel
by a Member not elected to a succeeding Congress after the general election or
sine
die
adjournment).
Travel that is paid for or authorized by the House should not be reported on
the 15-day Travel Disclosure Forms that are filed with the Clerk, or on one‘s annual
Financial Disclosure Statement.
Applicability of the Prohibition Against Private Subsidy of Official Activity
In General. As noted above, clauses 1-3 of House Rule 24 prohibit the
acceptance of private support – both monetary and in-kind – for official House
activities.
34
Accordingly, as a general rule, travel the primary purpose of which is to
conduct official business must be paid for or authorized by the House. Put another
way, Members and staff may not accept expenses or in-kind support from a private
source for such travel.
Travel Between Washington and One‘s Own District. As was noted above,
the Standards Committee interprets House Rule 24 generally to preclude the
acceptance of expenses from a private source for a fact-finding trip to or within one‘s
own district. However, the Committee does not view the occasional acceptance of
travel expenses to give a speech in one‘s own district, or otherwise to participate
substantially in an event, to violate House Rule 24. But if, for example, a Member
were giving speeches at private expense in the home district every week, concerns
would arise under the rule. In that circumstance, private sources would pay for a
substantial amount of the Member‘s travel to and from the district – travel that
must, as a general rule, be paid with official House funds. In the 99
th
Congress, the
Standards Committee found that a Member violated this rule when he accepted free
flights on corporate aircraft for official travel.
35
The Member subsequently
reimbursed the corporation.
34
Prior to the recodification of the rules that occurred at the beginning of the 106
th
Congress,
these provisions of the rules were numbered as House Rule 45.
35
House Comm. on Standards of Official Conduct,
Investigation of Travel on Corporate
Aircraft Taken by Representative Dan Daniel
, H. Rep. 99-470, 99
th
Cong., 2d Sess. (1986).
114 HOUSE ETHICS MANUAL
General Requirement That All Expenses of an Official Trip Be Paid With
Official Funds. Pursuant to House Rule 24, a private source generally may not pay
any portion of the expenses of a trip having an official purpose.
Example 13.
A committee chairman has decided to fund Member
travel to a conference with committee funds. The sponsor of the
conference offers to provide lodging and meals for the Members
without charge. The sponsor‘s offer may not be accepted. Because
official funds are to be used to pay for the airfare, the trip is deemed an
official activity. Thus, acceptance of the sponsor‘s offer would violate
the prohibition against private subsidy of official activities.
Example 14.
A Member plans to travel to a conference using MRA
funds. The sponsor of the conference invites a staff person of that
Member to travel to the event at the sponsor‘s expense. The staff
person may not travel to the conference at the expense of the sponsor.
Because the Member will be traveling on official funds, the
participation of that office in the conference is an official activity, and
the staff person could travel to it at official expense only.
However, as a general matter, a Member or staff person would not violate
House Rule 24 by accepting, while on official travel, food or refreshments that the
individual may otherwise accept under the gift rule, for example:
A meal provided by a foreign government that is acceptable under the
Foreign Gifts and Decorations Act;
A meal that is part of a privately-sponsored, ―widely attended‖ event;
A meal offered in a private residence as personal hospitality (but not from a
registered lobbyist or foreign agent);
A meal that is provided by an individual on the basis of personal friendship;
Food or refreshments, including a meal, offered by the management of a site
being visited, on that business‘s premises, and in a group setting with
employees of the organization; or
Food or refreshments of nominal value, not offered as part of a meal, at a
privately-sponsored reception.
The various provisions of the gift rule that allow the acceptance of these items of
food or refreshments are detailed in Chapter 2 on gifts.
As also detailed in Chapter 2, the Committee has determined that a Member
or staff person does not violate House Rule 24 by accepting, while on official travel,
certain incidental, privately provided transportation. Specifically, a Member or
Travel
115
staff person may accept local transportation, outside the District of Columbia,
provided by the management of a site being visited in the course of official duties,
between the airport or other terminus and the site.
However, privately-sponsored travel that is greater than incidental –
e.g.
,
travel from one city or one country to another (including meals) – is subject to a
different rule. While on official travel, a Member or staff person may be permitted
to accept such privately-sponsored travel only if the travel has a purpose that is
entirely different from that of the official travel.
Example 15.
A CODEL is in Germany examining the state of aircraft
technology in Europe. A privately owned aircraft manufacturer in
France learns of the CODEL and offers to fly the delegation to view its
facilities. The manufacturer‘s offer will not be approved by the
Committee.
Example 16.
The same CODEL referred to in Example 15 receives an
offer from a shipbuilding company in France to view its facilities.
Because this side trip would have a purpose entirely distinct from that
of the official travel, the Committee would approve the Members‘ pre-
travel approval request following the private sponsor‘s certification to
the usual limits and restrictions on privately funded fact-finding.
Use of the Government Rate
The Standards Committee understands that under contracts with the
airlines, hotels, and car rental companies that establish the ―government rate,‖ that
rate is available only for official travel. Accordingly, as a general matter, the
government rate can be used only when the travel of a Member, officer, or employee
is to be paid for with official funds, and is not available when the travel is to be paid
for with, for example, the funds of a private organization or campaign funds.
Furthermore, as a general matter, a House office may not use the government rate
for the travel of anyone other than a Member, officer, or employee. Thus the rate is
not available for the travel of, for example, the spouse or a child of one of those
officials. Information on use of the government rate is also available from the staff
of the Committee on House Administration.
The Committee has also issued a general gift rule waiver permitting
Members to make multiple reservations for official travel if offered by an airline.
See
February 21, 2008 Committee Memorandum on Multiple Reservations on
Commercial Flights.
Use of Frequent Flier Miles Earned Through Official Travel
The rule on the use of frequent flier miles and similar benefits earned
through official travel was established by the Committee on House Administration
116 HOUSE ETHICS MANUAL
and is set forth in the
Members‘ Handbook
and the
Committees‘ Handbook
. The
rule is as follows:
Free travel, mileage, discounts, upgrades, coupons, etc. awarded at the
sole discretion of a company as a promotional award may be used at
the discretion of the Member or the Member‘s employee. The
Committee [on House Administration] encourages the official use of
these travel promotional awards wherever practicable.
Information on use of frequent flier miles earned through official travel
is available from the Committee on House Administration staff.
Mixed Purpose Trips
For the most part, the preceding discussion in this section treats all trips as
having a single purpose,
i.e.
, an officially-connected purpose, a personal purpose, a
political purpose, or an official purpose. However, insofar as the Standards
Committee is concerned, it is possible for a trip to have more than one such purpose.
As to any such mixed purpose trip, the Member, officer, or employee must
determine the primary purpose of the trip. The source associated with that primary
purpose – for example, a political committee for campaign or political activity, the
federal government for official business, or the traveler‘s own funds for personal
business – must pay for the airfare (or other long-distance transportation expense),
and all other travel expenses incurred in accomplishing that purpose. Any
additional meal, lodging, or other travel expenses that the Member or staff person
incurs in serving a secondary purpose must be paid by the source associated with
that secondary purpose.
The determination of the primary purpose of a trip must be made in a
reasonable manner, and one relevant factor in making that determination is the
number of days to be devoted to each purpose. That is, often the primary purpose of
a trip is the one to which the greater or greatest number of days is devoted.
However, any mixed purpose trip that would be paid in part with campaign
funds or House funds must also comply with, respectively, Federal Election
Commission rules or rules of the Committee on House Administration. The
Standards Committee understands, for example, that FEC rules severely limit the
ability of Members to, for example, attend a campaign fundraiser while in the
course of officially-connected travel paid for by a private source. Thus Members and
staff should consult the Standards Committee, the Committee on House
Administration, and the FEC, as appropriate, when planning a mixed purpose trip.
Travel
117
Travel to a Charity Event
The ―charity event‖ provision of the gift rule allows Members and staff to
accept transportation and lodging in connection with a charity event only when
three requirements are satisfied:
All of the net proceeds of the event are for the benefit of an established
charity,
i.e.
, ―an organization described in section 501(c)(3) of the Internal
Revenue Code of 1986 and exempt from taxation under section 501(a) of the
Code‖;
Reimbursement for the transportation and lodging is paid by the charitable
organization; and
The offer of free attendance is made by the charitable organization.
It is important to emphasize that under the rule, the only entity from which a
Member or staff person may accept transportation or lodging to attend a charity
event is the charitable organization that benefits from the event. Travel expenses
to the event may not be accepted from any donor to or participant in the event, or
from anyone else. Furthermore, a Member or staff person may not accept
transportation or lodging expenses from the beneficiary charity if those expenses
would be paid using donations that were earmarked, either formally or informally,
for payment of expenses of congressional participants.
36
In addition, when acceptance of transportation and lodging is otherwise
permissible, the Standards Committee interprets the rule to allow a Member or
staff person to accept only such expenses as are reasonably necessary for the
individual to attend the event. It appears that with rare exception, only one night
of lodging, or at most two, will be necessary to attend any charity event.
When attendance at a charity event is otherwise permissible, a Member or
staff person may also accept an invitation to be accompanied at the event, at the
expense of the charity, by his or her spouse or a dependent – but only by one or the
other, not both, and not by any other individual. Members, as well as staff required
to file a Financial Disclosure Statement, must disclose travel to attend a charity
event on Schedule VII of that form, if the value of the travel exceeds the reporting
threshold.
36
Consistent with this interpretation, a Member or staff person traveling to a charity event
under this provision may not accept a flight on, for example, a corporate aircraft that is being used to
fly corporate officials to the event, even if the charity reimburses the corporation for the flight. Aside
from concerns on whether a corporation may lawfully accept such a reimbursement under Federal
Aviation Administration regulations, under the rule, as discussed in the text, a donor to a charity
event should have no role in providing travel to a participating Member or staff person.
118 HOUSE ETHICS MANUAL
The rules on attendance at charity events are discussed more fully in Chapter
2 on gifts.
Use of Non-Commercial Aircraft Is Generally Prohibited
At times Members are offered the use of, or wish to use, non-commercial
aircraft for travel. Pursuant to a rules change during the 110
th
Congress, the
circumstances under which Members are permitted to accept a flight on a non-
commercial aircraft has been significantly narrowed. As discussed previously
(under the heading ―Acceptable Travel Expenses‖), under the gift rule, Members
and staff participating in privately-sponsored, officially-connected travel may not
accept travel on a non-commercial, private, or chartered flight unless exceptional
circumstances are demonstrated in writing by the private sponsor.
In addition, under the House Code of Official Conduct, Members are
prohibited from using personal, official, or campaign funds
37
to pay for or reimburse
the expenses of a flight on any aircraft
unless
one of the exceptions in the rule is
satisfied (House Rule 23, clause 15).
38
The major exceptions are for travel on
commercially scheduled flights and flights provided by individuals or companies
operating a charter service. However, the use of personal, official, or campaign
funds to pay for a flight on a non-commercial aircraft is generally prohibited. Each
of the exceptions to the prohibition on the use of personal, official, or campaign
funds for a flight on an aircraft are discussed below.
Also discussed in this section are three limited circumstances under which a
Member (or staff person) may be permitted to accept a flight on a non-commercial
aircraft as a gift, that is, without having to reimburse the cost of the flight.
Exceptions to Prohibition To Use of Personal, Official, or Campaign Funds for
Flights on Aircraft
A Member may use personal, official, or campaign funds to pay for or
reimburse the cost of a flight on an aircraft when the flight is provided under one of
the following circumstances:
37
The term ―campaign funds‖ is defined broadly to include ―leadership PAC‖ funds.
Specifically, the term ―campaign funds‖ means –
funds of any political committee under the Federal Election Campaign Act of 1971,
without regard to whether the committee is an authorized committee of the Member .
. . involved under such Act. [House Rule 23, clause 15(c)(1).]
38
This provision was added pursuant to H. Res. 363 (May 2, 2007). The Federal Election
Campaign Act of 1971 (2 U.S.C. § 431
et seq.
) has been amended to impose a similar prohibition on
candidates for election to the House of Representatives.
See
The Honest Leadership and Open
Government Act of 2007, Pub. L. 110-81, § 601, 121 Stat. 735, 774 (Sept. 14, 2007).
Travel
119
The aircraft is operated by an air carrier or commercial operator, including a
charter service;
39
The aircraft is owned or leased by the Member or the Member‘s family
member,
40
including fractional ownership or equity in a nonpublic
corporation, provided that such use does not exceed the individual‘s
proportionate ownership or equity share;
The flight is for the personal use of the Member and is otherwise permissible
on the basis of personal friendship;
41
or
The aircraft is operated by the federal government or any state government.
Members wishing to reimburse the cost of a flight permitted under the rule
using official funds or campaign funds should consult the House Administration
Committee or the Federal Election Commission, respectively, for guidance on the
timing and rates of reimbursement for a permissible flight and the applicable
reporting requirements. The FEC should also be consulted for guidance on whether
travel on non-commercial aircraft may be accepted on behalf of a Member‘s
campaign as a permissible in-kind contribution.
42
Acceptance of Travel Provided on the Basis of Personal Friendship. At times
a Member, officer, or employee is offered a flight on an aircraft that is personally
owned by an individual whom the official knows. If the requirements of the
personal friendship provision of the gift rule are satisfied, the offer of a flight to the
Member or staff person may be accepted as a gift. Those requirements are detailed
in Chapter 2 on gifts. Several points to bear in mind regarding this type of travel
are as follows:
39
Specifically, the prohibition does not apply if ―the aircraft is operated by an air carrier or
commercial operator certified by the Federal Aviation Administration and the flight is required to be
conducted under air carrier safety rules‖ (House Rule 23, clause 15(b)(1)). In the case of foreign
travel, the prohibition does not apply if the aircraft is operated by ―an air carrier or commercial
operator certified by an appropriate foreign civil aviation authority and the flight is required to be
conducted under air carrier safety rules‖ (
id
). An aircraft that does not fall within one of these
classifications is considered a non-commercial aircraft.
40
The rule defines the term ―family member‖ as a ―father, mother, son, daughter, brother,
sister, husband, wife, father-in-law, or mother-in-law‖ (House Rule 23, clause 15(c)(2)).
41
See section on ―Gifts of Travel Given on the Basis of Personal Friendship‖ for additional
guidance.
42
But see
note 38,
supra
.
121
CAMPAIGN ACTIVITY
Overview
House Members and staff engaging in campaign or political activity are
subject to a wide variety of laws, rules, and standards of conduct, including:
The Federal Election Campaign Act, as amended (2 U.S.C. §§ 431-455)
(―FECA‖), with regard to campaigns for federal office;
Provisions of the Rules of the House of Representatives, including rules that
require that campaign funds be used only for campaign or political purposes,
and prohibit their use for either personal or official House purposes, with
limited exceptions;
Rules of the Committee on House Administration requiring that House funds
and official House resources be used for official House purposes, and
precluding their use for campaign or political purposes; and
Other provisions of the U.S. Code, including provisions of the criminal code
that concern, among other things, the solicitation and receipt of contributions, and
abuse of one‘s office for political gain.
Members or staff who are seeking state or local office are not subject to FECA
in that undertaking, but they likely are subject to a comparable set of state laws
and rules.
This chapter addresses the laws, rules, and standards on four major subjects
relating to campaign and political activity, as follows:
The general prohibition against using official House resources for campaign
or political purposes;
Campaign work by House employees, which must be done on their own time
and outside the congressional office, and without the use of any House
resources;
The solicitation, receipt, and acceptance of campaign contributions, and the
general prohibition against taking actions in one‘s official capacity on the
basis of political considerations; and
The proper use of campaign funds.
Four other, more specific subjects are addressed in the last section of this
chapter: (1) The rules on campaign letterhead, (2) the provisions of the House gift
rule that apply to campaign or political activity, (3) Member involvement with
122 HOUSE ETHICS MANUAL
independent redistricting funds, and (4) provisions of the federal criminal code that
apply to campaign or political activity.
While FECA establishes an extensive set of regulations on contributions and
expenditures for campaigns for federal offices, this chapter, with one exception, does
not address the provisions of FECA. FECA is enforced primarily by the Federal
Election Commission (―FEC‖), and House Members and their campaign staff should
refer to the explanatory materials and advisory opinions issued by the FEC. One
provision of FECA that this chapter does address, albeit briefly, is that on the
proper use of campaign funds. As noted above, the House Rules also include a
provision on this matter, and thus this chapter addresses the similarities and
differences between the House rule and the statute.
With regard to the applicable provisions of the House rules, Members and
staff should bear in mind that under House Rule 23, clause 2 they are obligated to
adhere to not only the letter, but also the spirit of those rules. This provision has
been interpreted to mean that Members and staff may not do indirectly what they
are barred from doing directly. Chapter 1 on general ethical standards includes
further discussion on this point.
While FECA and other statutes on campaign activity are not rules of the
House, Members and employees must also bear in mind that the House Rules
require that they conduct themselves ―at all times in a manner that shall reflect
creditably on the House‖ (House Rule 23, clause 1). In addition, the Code of Ethics
for Government Service, which applies to House Members and staff, provides in ¶ 2
that government officials should ―[u]phold the Constitution, laws and legal
regulations of the United States and of all governments therein and never be a
party to their evasion.‖ Accordingly, in violating FECA or another provision of
statutory law, a Member or employee may also violate these provisions of the House
rules and standards of conduct.
1
In addition, acceptance of an unlawful campaign
contribution may also violate the House gift rule (House Rule 25, clause 5).
1
In the 105
th
Congress, an investigative subcommittee of the Standards Committee adopted
a Statement of Alleged Violation against a Member charging violations of the predecessor of House
Rule 23, clause 1, based in part on the allegation that in his campaign for the House, the Member
had (1) caused illegal in-kind contributions to be made to his campaign by a corporation he owned,
(2) received and accepted an illegal contribution from a foreign national, and (3) received and
accepted an illegal contribution from another corporation. The Member had previously pled guilty in
federal court to criminal charges that had been brought against him on these matters. The
Standards Committee took no further action in this case because as of the time that the investigative
subcommittee completed its work, the Member was about to depart the House.
See
House Comm. on
Standards of Official Conduct,
In the Matter of Rep. Jay Kim
, H. Rep. 105-797, 105
th
Cong., 2d Sess.
(1998).
Campaign Activity 123
Moreover, under these rules, a Member or employee must take reasonable
steps to ensure that any outside organization over which he or she exercises control
– including the individual‘s own authorized campaign committee or, for example, a
―leadership PAC‖ – operates in compliance with applicable law. Depending on the
circumstances, consultation with private counsel may be necessary.
In this regard, in a case handled by the Committee on Standards of Official
Conduct in the 104
th
Congress, a Member admitted to a Statement of Alleged
Violation that charged a violation of the predecessor of House Rule 23, clause 1
(requiring conduct that reflects creditably on the House). One of the bases of that
charge was that the Member had failed to seek and follow legal advice for the
purpose of ensuring that certain activities he undertook through tax-exempt
organizations complied with provisions of the Internal Revenue Code governing
such organizations, including those that generally prohibit such organizations from
engaging in political activity. The House subsequently approved a Committee
recommendation that the Member be reprimanded and required to reimburse the
House the sum of $300,000.
2
General Prohibition Against Using Official Resources for Campaign or
Political Purposes
As detailed below, official resources of the House must, as a general rule, be
used for the performance of official business of the House, and hence those
resources may not be used for campaign or political purposes. The laws and rules
referenced in this section reflect ―the basic principle that government funds should
not be spent to help incumbents gain reelection.‖
3
What are the ―official resources‖ to which this basic rule applies? Certainly
the funds appropriated for Member, committee, and other House offices are official
resources, as are the goods and services purchased with those funds. Accordingly,
among the resources that generally may not be used for campaign or political
purposes are congressional office equipment (including the computers, telephones,
and fax machines), office supplies (including official stationery and envelopes), and
congressional staff time.
2
House Select Comm. on Ethics,
In the Matter of Rep. Newt Gingrich
, H. Rep. 105-1, 105
th
Cong., 1
st
Sess. 7-8 (1997).
See also
House Comm. on Standards of Official Conduct,
In the Matter of
Rep. George V. Hansen
, H. Rep. 98-891, 98
th
Cong., 2d Sess., 3 (1989) (To establish the defense that a
Member justifiably relied on the legal advice of counsel, the Member must show that the advice had
been ―sought in good faith, all material facts must [have been] given to the attorney and the person
seeking advice must then follow the advice given.‖).
3
Common Cause v. Bolger
, 574 F. Supp. 672, 683 (D.D.C. 1982),
aff‘d
, 461 U.S. 911 (1983).
124 HOUSE ETHICS MANUAL
Among the specific activities that clearly may not be undertaken in a
congressional office or using House resources (including official staff time) are the
solicitation of contributions; the drafting of campaign speeches, statements, press
releases or literature; the completion of FEC reports; the creation or issuance of a
campaign mailing; and the holding of a meeting on campaign business. The same
prohibition applies to any activity that is funded to any extent with campaign
funds, even if the activity is not overtly political in nature. The latter point is
addressed further below under the headings ―Use for Bona Fide Campaign or
Political Purposes‖ and ―Use of Campaign Funds or Resources for Official House
Purposes.‖
The misuse of the funds and other resources that the House of
Representatives entrusts to Members for the conduct of official House business is a
very serious matter. Depending on the circumstances, such conduct may result in
not only disciplinary action by the House, but also criminal prosecution. Moreover,
while any House employee who makes improper use of House resources is subject to
disciplinary action by the Standards Committee, each Member should be aware that
he or she may be held responsible for any improper use of resources that occurs in
the Member‘s office. The Standards Committee has long taken the position that
each Member is responsible for assuring that the Member‘s employees are aware of
and adhere to the rules, and for assuring that House resources are used for proper
purposes.
4
Specific laws and rules that prohibit the use of official resources for campaign
or political purposes are summarized in the remainder of this section. The effect of
these laws and rules is generally to preclude campaign or political activity from
taking place in congressional offices. However, the Standards Committee has long
recognized that there are certain limited activities in a congressional office that,
while related to a Member‘s campaign, are permissible. Those activities are
described in this section.
Members and staff should be aware that the general prohibition against
campaign or political use of official resources applies not only to any Member
campaign for re-election, but rather to any campaign or political undertaking. Thus
the prohibition applies to, for example, campaigns for the Presidency, the U.S.
Senate, or a state or local office, and it applies to such campaigns whether the
Member is a candidate or is merely seeking to support or assist (or oppose) a
candidate in such a campaign.
4
House Comm. on Standards of Official Conduct,
In the Matter of Rep. E.G. ―Bud‖ Shuster
,
H. Rep. 106-979, 106
th
Cong., 2d Sess. 31 (2000); House Comm. on Standards of Official Conduct,
Statement
Regarding
Complaints Against Rep. Newt Gingrich
, 101
st
Cong., 2d Sess. 60, 165-66
(1990); House Comm. on Standards of Official Conduct,
In the Matter of Rep. Austin J. Murphy
, H.
Rep. 100-485, 100
th
Cong., 1
st
Sess. 4 (1987).
Campaign Activity 125
Example 1.
A Member wishes to issue a press release announcing that
he is endorsing a candidate for President. The Member may not issue
the release out of his House office or use any House resources
(including his official press release letterhead) in making the
announcement. Likewise, a Member may not refer to or discuss his
endorsement in letters sent on official stationery, including letters sent
in response to constituent inquiries.
As noted below, many of the applicable rules here are statutorily based rules
that were issued by either the Committee on House Administration or the House
Franking Commission (formally known as the House Commission on Congressional
Mailing Standards). Definitive explanation of those rules is available from the
Committee on House Administration, the Franking Commission, and their staffs.
Laws and Rules on Proper Use of Official Resources
Goods and Services Paid for With the Members‘ Representational Allowance
or House Committee Funds. All expenditures by a Member from his or her
Members‘ Representational Allowance (―MRA‖) – including expenditures for staff,
travel, and communications – must comply with regulations issued by the
Committee on House Administration. Those regulations are set forth in the
Members‘ Handbook
issued by that Committee. The
Handbook
provides that ―[o]nly
expenses the primary purpose of which [is] official and representational‖ are
reimbursable from the MRA, and that the MRA may not pay for campaign expenses
or political expenses (or any personal expenses).
Similarly, all House committees, in spending their official funds, must comply
with the regulations set forth in the
Committees‘ Handbook
issued by the
Committee on House Administration.
5
The
Committees‘ Handbook
provides that
only expenses ―the primary purpose of which [is] official‖ are reimbursable from the
official funds provided to a committee, and that committee funds may not be used to
pay any ―political or campaign-related expenses‖ (or any personal expenses). The
regulations governing committee expenditures as well as those governing Member
expenditures derive in large part from both 31 U.S.C. § 1301(a), which provides that
official funds are to be used only for the purposes for which appropriated, and the
statutory authorizations for the allowances.
6
5
See
Comm. on House Admin., U.S. House of Representatives,
Members‘ Congressional
Handbook
(hereinafter ―
Members‘ Handbook
‖) and
Committees‘ Congressional Handbook
(hereinafter ―
Committee‘s Handbook
‖)
.
Both publications are available on the Committee on House
Administration website.
6
See, e.g.,
2 U.S.C. § 57b, and
Principles of
Federal
Appropriations Law
(3d ed.), issued by
the U.S. General Accountability Office.
126 HOUSE ETHICS MANUAL
As detailed below, it is permissible for House employees to do campaign work,
but only outside of congressional space, without the use of any House resources, and
on their own time (as opposed to ―official‖ time for which they are compensated by
the House). Accordingly, any House employee who does campaign work must
ensure that the work – including any telephone conversations or other
communications concerning campaign business – is performed strictly in compliance
with these limitations.
A provision of the
Members‘ Handbook
permits the incidental personal use of
House equipment and supplies ―when such use is negligible in nature, frequency,
time consumed, and expense.‖
However, this policy applies only to incidental
personal use of those resources, and not to their use for campaign or political
purposes.
The rules on proper use of official House funds and resources were implicated
in a case handled by the Standards Committee in the 104
th
Congress. That case,
which was initiated by a complaint filed with the Committee, concerned a Member‘s
use of his office fax machine and official letterhead to send out a press release that
severely criticized the record of a prospective campaign opponent on Medicare
issues. The Committee resolved that case by sending that Member a letter – which
the Committee released publicly – stating (1) its finding that the Member had, in
issuing that release, violated applicable rules and regulations on the use of official
resources, and (2) the Committee‘s expectation that he would comply with
applicable rules in the future.
7
Moreover, Members must regularly certify that all official funds have been
properly spent. A false certification may bring criminal penalties, and the
government may recover any amount improperly paid.
8
Misuse of official House
7
House Comm. on Standards of Official Conduct,
Summary of Activities, One Hundred
Fourth Congress
, H. Rep. 104-886, 104
th
Cong., 2d Sess. 22 (1997). The matter of use of House staff
to perform campaign work for the employing Member was at issue in another disciplinary case
before the Standards Committee in the 104
th
Congress. In that case, an investigative subcommittee
adopted a Statement of Alleged Violation against a Member, one count of which alleged a misuse of
official resources on the basis that congressional employees of the Member regularly performed work
for the Member‘s campaign while on official time. The campaign work, some of which was performed
in the congressional office, included collecting and depositing campaign checks and maintaining
campaign financial records. No further action was taken in the case, however, because as of the time
the investigative subcommittee completed its work, the Member was about to depart the House.
In
the Matter of Rep. Barbara-Rose Collins
, H. Rep. 104-876, 104
th
Cong., 2d Sess. (1997).
8
Federal law (18 U.S.C. § 1001) provides a criminal penalty for submitting a false statement
to the government; the False Claims Act, 31 U.S.C. §§ 3729-3731, permits assessment of a penalty of
up to three times the amount wrongly claimed. For further information on this matter, see Chapter
9 (on false claims and fraud).
Campaign Activity 127
resources for campaign purposes may violate other criminal laws as well. For
example, in 1993 a former House employee pleaded guilty to a charge of theft of
government property for receiving a House salary and expenses for time when,
despite his claim that he was conducting official business, he was in fact doing
campaign work.
9
In addition, in 1979 a former Member pleaded guilty to charges of
mail fraud and income tax evasion based on claims that persons on his
congressional payroll were paid not for the performance of official duties, but
instead for staffing and operating various campaign headquarters in his re-election
campaign.
10
House Buildings, and House Rooms and Offices. The House buildings, and
House rooms and offices – including district offices – are supported with official
funds and hence are considered official resources. Accordingly, as a general rule,
they may not be used for the conduct of campaign or political activities.
Thus, for example, a Member may not film a campaign commercial or have
campaign photos taken in a congressional office. For rules on filming and taking of
photos on grounds near the Capitol, the office of the Sergeant at Arms should be
contacted.
In addition, House rooms and offices are not to be used for events that are
campaign or political in nature, such as a meeting on campaign strategy, or a
reception for campaign contributors.
11
However, under long-standing Committee
policy, when a Member is sworn in, the Member may hold a ―swearing-in‖ reception
in a House office building that is paid for with campaign funds.
12
A criminal statute
that prohibits the solicitation of campaign contributions in any House building,
room, or office is discussed below in this chapter, in the section on solicitation of
contributions.
9
United States v. Bresnahan
, Crim. No. 93-0409 (D.D.C. 1993);
see
Senate Comm. on Rules
and Administration,
Senate Election Law Guidebook
2006, S. Doc. 109-10, 109
th
Cong., 1
st
Sess. 266.
10
United States v. Clark
, Crim. No. 78-207 (W.D. Pa. 1978);
see
S. Doc. 109-10,
supra
note 9,
at 265-66.
11
The Speaker‘s office has issued a set of rules for use of the meeting rooms under the
Speaker‘s jurisdiction, and those rules prohibit use of those rooms for, among other things, political
purposes. In addition, as noted in the text, a provision of the criminal code, 18 U.S.C. § 607
generally prohibits the solicitation or receipt of campaign contributions in federal offices, including
the House office buildings and district offices, in connection with a federal, state, or local election.
12
In addition, there are events that, while not campaign or political events, may properly be
paid for with campaign funds (
e.g.
, a reception for visiting constituents). An event of this nature
may be held in a House building, even though it is paid for with campaign funds. This and other
matters are discussed later in this chapter.
128 HOUSE ETHICS MANUAL
Coverage of House Floor and Committee Proceedings. Broadcast coverage
and recordings of House floor proceedings may not be used for any political purpose
under House Rule 5, clause 2(c)(1). In addition, under House Rule 11, clause 4(b),
radio and television tapes and film of any coverage of House committee proceedings
may not be used, or made available for use, as partisan political campaign material
to promote or oppose the candidacy of any person for public office.
Internal Office Files. As discussed below, a congressional office may provide
campaign personnel with copies of its press releases and other materials that were
distributed publicly. However, the internal office files, such as research files on
legislation, may not be used for campaign or political purposes.
Example 2.
A Member‘s campaign wishes to make commercials
featuring testimonials by individuals whom the office has assisted on
casework matters. The office casework files may not be reviewed to
obtain names of individuals whom the office has assisted. Likewise,
the office files may not be reviewed to obtain names of individuals to
solicit for campaign contributions.
Official Mailing Lists. The
Members‘ Handbook
issued by the Committee on
House Administration provides that official funds may be used to purchase and
produce mailing lists, provided that, among other things, ―the list does not contain
any campaign, campaign related, or political party information.‖ The
Handbook
further provides that a Member may not use official funds to purchase mailing lists
from the Member‘s campaign ―unless the lists are available on the same terms to
other entities through an arms length marketplace transaction.‖ (Note that subject
to the same conditions, a Member also has the option of purchasing a mailing list
from his or her campaign with personal funds and then making that list available
for use by the congressional office.)
The
Members‘ Handbook
also provides that, ―[o]fficial mailing lists may not
be shared with a Member‘s campaign committee, any other campaign entity, or
otherwise be used for campaign purposes.‖
Letters, News Releases, Other Printed Materials, and E-mails. Under
regulations issued by the Committee on House Administration, neither a letter nor
any other kind of document (including a news release) may be printed on official
House stationery unless the content of the document complies with the Franking
Regulations. House Administration Committee regulations further provide that
any advertisement paid for by a congressional office, as well as any printed
materials produced by an office, must be frankable in content. E-mails sent by a
congressional office must likewise comply with the Franking Regulations.
Campaign Activity 129
The Franking Regulations are issued by the House Franking Commission,
and they govern use of the frank under 39 U.S.C. § 3210 and related statutes.
13
Statutory law provides that it is Congress‘ intent that the frank not be used for,
among other things,
mail matter which specifically solicits political support for the sender
or any other person or any political party, or a vote or financial
assistance for any candidate for any political office. [39 U.S.C.
§ 3210(a)(5)(C).]
The Franking Regulations elaborate on this provision by prohibiting, among
other things, ―specific references to past or future campaigns or elections, including
election or re-election announcements and schedules of campaign related events,‖
the use of materials ―used in campaign literature as well as specific campaign
pledges or promises,‖ and ―excessive use of party labels.‖ The Franking Regulations
further provide that when a Member submits a sample of a mass mailing to the
Franking Commission for an advisory opinion on frankability, the office must also
submit a signed Franking Certification Form that represents that the mailing does
not and will not –
contain any logo, masthead design, slogan, or photograph which is a
facsimile of any matter contained in the Member‘s campaign literature.
Any questions on the Franking Regulations should be directed to the staff of
the Franking Commission.
While the Franking Regulations prohibit congressional offices from sending
letters or issuing press releases that are campaign or political in nature, the
Standards Committee understands that the Regulations do not necessarily preclude
congressional offices from issuing statements on legislative issues that are raised in
the course of a campaign. Provided that such statements are confined to discussion
of legislative issues, they may satisfy the Franking Regulations, and hence may be
drafted by congressional staff using the internal office files and other official
resources. However, before commencing work on any such statement, a
congressional office should consult with Franking Commission staff to ensure that
the planned statement will comply with the Regulations.
The 90-Day Ban on Unsolicited Mass Communications. Under statutory law
and Committee on House Administration regulations, a Member is prohibited from
13
The regulations themselves are set out in a publication of the Franking Commission,
Regulations on the Use of the Congressional Frank by Members of the House of Representatives
, the
current issue of which is dated June 1998. The regulations are also available on the Committee on
House Administration‘s website.
130 HOUSE ETHICS MANUAL
spending official funds to make any unsolicited mass communication within 90 days
of any election in which the Member‘s name is on the ballot.
14
The regulations
define ―unsolicited mass communication‖ as ―any unsolicited communication of
substantially identical content to 500 or more persons in a session of Congress.‖
The official expenditures that are subject to the prohibition include those for
mass mailings, advertisements, certain electronic messages and mailings, and the
production and distribution of video and audio services. On the other hand, a
Member‘s direct response to an individual communication, such as an incoming
letter initiated by a constituent, is not an unsolicited communication in that the
constituent is soliciting the Member‘s response. Such a response is therefore not
subject to the prohibition, even if the total number of individual responses is 500 or
more.
In addition, according to the
Members‘ Handbook,
House offices may consider
an individual who subscribed to a Member‘s electronic communication or newsletter
to be a ―soliciting‖ a response by the office. As a result, a communication to that
individual would not be subject to the 90-day communications ban that applies to
unsolicited communications. Although there is no requirement that a Member seek
an advisory opinion from the Franking Commission before transmitting an
electronic communication or newsletter, the content of the communication is subject
to Franking regulations. Questions relating to electronic messages and mailings
communications should be directed to the Committee on House Administration and
Franking, as appropriate.
Note that the ban applies to communications paid for with official funds.
Thus the ban does not prohibit a Member who is within the 90-day ―cut-off‖ from,
for example, accepting the invitation of a charitable organization to tape a bona fide
public service announcement using facilities provided by the organization. In
addition, at times a Member is asked to appear at and lend his or her name to an
event of an outside organization (
see
Chapter 10 on official and outside
organizations). Materials that the organization typically prints or publishes
regarding such an event would not be subject to the ban.
Questions on the applicability of the ban to communications proposed to be
made using official funds should be directed to the Committee on House
Administration. However, occasionally questions have arisen on whether a Member
who is in his or her cut-off period can make a mass communication that is official in
nature using nonofficial resources (for example, the services of a state or local
government entity). Questions of that nature are within the jurisdiction of the
Standards Committee, and the Committee has taken the position that such an
14
Statutory law (39 U.S.C. § 3210(a)(6)) applies the ban to mass mailings, and the
regulations extend the ban to other forms of communication.
Campaign Activity 131
undertaking would not be permissible in that it would be inconsistent with the
spirit of the ban on unsolicited mass communications.
Member and Committee Websites. Under rules issued by the Committee on
House Administration set forth in the
Members‘ Handbook
and the
Committees‘
Handbook
, Member and Committee websites –
May not include personal, political, or campaign information; and
May not be directly linked or refer to websites created or operated by a
campaign or any campaign-related entity, including political parties and
campaign committees.
Further information on the rules governing Member and Committee websites is
available from the Committee on House Administration.
As to Member campaign websites, the Standards Committee has advised that –
Such a site may not include a link to the Member‘s House website; and
The Member‘s House website may not be advertised on his or her campaign
website or in materials issued by the campaign.
This matter is also addressed at the end of this chapter.
Travel. Member and staff travel, including to one‘s district, may be paid with
official funds only if the primary purpose of the trip is the conduct of official
business. As a general matter, a Member or staff person, while on official travel,
may engage in incidental campaign or political activity, provided that no additional
travel expenses are incurred as a result. However, when the primary purpose of a
trip is in fact the conduct of campaign or political activity, then the travel expenses
must be paid with campaign funds and cannot be paid with official funds.
15
The
Members‘ Handbook
and the
Committees‘ Handbook
issued by the
Committee on House Administration include provisions on campaign activity in the
course of travel paid for with House funds. Thus when a Member or staff person
wishes to engage in any such activity in the course of an official trip, he or she
15
In the 104
th
Congress an investigative subcommittee of the Standards Committee adopted
a Statement of Alleged Violation against a Member, one count of which alleged a misuse of official
resources on the basis that official funds had been used to pay travel expenses of a staff member for
a trip the primary purpose of which was to attend a campaign fundraising event for the Member. No
further action was taken in the case, however, because as of the time the investigative subcommittee
completed its work, the Member was about to depart the House.
See
H. Rep. 104-876,
supra
note 7.
132 HOUSE ETHICS MANUAL
should first review the section of the appropriate
Handbook
on travel and consult
with the Committee on House Administration staff as necessary.
Redistricting. Prior to May 2001, both the Standards Committee and the
Committee on House Administration had taken the position that the use of House
resources for redistricting purposes was absolutely prohibited. That policy was
based on the view that redistricting is an inherently political activity. However, in
a joint Dear Colleague letter of May 24, 2001, the two committees advised that
House resources may be used for redistricting-related activities – such as
responding to constituent inquiries, and Member meetings and briefings – that are
merely incidental to each day‘s official business, and that are minimal in nature,
frequency, time consumed, and use of resources. A copy of that joint Dear Colleague
letter is reprinted in the appendices to this Manual.
The matter of Member involvement with independent redistricting funds is
discussed at the end of this chapter.
Limited Campaign-Related Activities That May Take Place in a Congressional
Office
The purpose and effect of the laws and rules enumerated above are generally
to preclude campaign or political activity from taking place in a congressional office.
However, the Standards Committee has recognized that there are certain limited
activities that, while related to a Member‘s campaign, may properly take place in a
congressional office. The Committee‘s view has been that it would be impractical
and unnecessary to attempt to prohibit these specific activities. In this regard, the
Committee has long advised that the following activities are permissible:
Coordination of the Member‘s Schedule. The individual in the congressional
office who handles the Member‘s schedule may coordinate with those in the
campaign office who schedule the Member‘s campaign appearances. Obviously, a
Member can be in only one place at any one time, and thus it is necessary for
schedulers to communicate. The congressional office scheduler may also maintain
an integrated schedule that reflects the Member‘s political as well as official
activities, but that schedule is for the internal use of the Member and staff only.
While coordination between schedulers is permissible, as a general matter,
the congressional office scheduler should not make travel arrangements for the
Member‘s campaign trips either in the congressional office or while on official time.
However, a member of the congressional staff who wishes to perform those duties
may do so on his or her own time and outside of congressional space, such as at the
office of one of the congressional campaign committees. The matter of campaign
work by House employees on their own time and outside of congressional office
space is discussed in detail below.
Campaign Activity 133
The Press Secretary. The press secretary in the congressional office may
answer occasional questions on political matters, and may also respond to such
questions that are merely incidental to an interview focused on the Member‘s
official activities. However, while in the congressional office, the press secretary
should not give an interview that is substantially devoted to the campaign, or
initiate any call that is campaign-related. A press secretary wishing to do either of
those things should do so outside of the congressional office, and on his or her own
time (
see
below).
Example 3.
In the course of a lengthy interview in the congressional
office on how the Member plans to vote on a controversial issue coming
before the House, a reporter asks the press secretary how the Member
perceives that her vote will affect her upcoming re-election. The press
secretary may answer the question. However, if the reporter continues
to ask questions on the campaign, the press secretary should terminate
the interview. If the press secretary wishes to do so, she may resume
the interview outside of congressional space (such as at the office of one
of the congressional campaign committees) and on her own time.
Campaign/Congressional Office Referrals. The congressional office may refer
to the campaign office letters and other communications and inquiries that it
receives concerning the campaign. Likewise, the campaign office may refer to the
congressional office any officially related matters that it receives.
Example 4.
A congressional office receives a call from a constituent
who wishes to do volunteer work for the Member‘s campaign. The staff
person may provide the constituent with the address and telephone
number of the campaign headquarters.
All such referrals should be done at the expense of the campaign, including
the cost of any long-distance telephone calls. It may be desirable for the
congressional office to have a supply of campaign envelopes and stamps for use in
referring written materials. Those stamps and envelopes can also be used to send
to the campaign any unsolicited campaign contributions that are received in the
congressional office (
see
discussion below on ―No Solicitation in House Offices,
Rooms, or Buildings‖).
Providing Published Materials to the Campaign. A congressional office may
provide a campaign office with a copy of any materials that the congressional office
has issued publicly, such as press releases, speeches, and newsletters. In stating
that such activity is permissible, the Standards Committee assumes that only a
minimal amount of congressional staff time will be consumed in responding to
campaign requests for materials of this nature. However, in no event should the
134 HOUSE ETHICS MANUAL
congressional office provide the campaign with a quantity of any such item for
distribution by the campaign.
Example 5.
In the past year the Member has been very active on the
gun issue. The campaign wishes to issue a brochure on the issue, and
a campaign worker asks the congressional office for a copy of all the
statements and releases the Member issued on guns. The
congressional office may provide one copy of the requested material to
the campaign.
Other materials in the congressional office files – including, for example,
back-up memoranda on issues – are not to be shared with the campaign or
otherwise used for campaign purposes. Those materials are to be used for official
purposes only. Congressional staff members should not do research on behalf of the
campaign or write campaign speeches or other materials while on official time or
using official resources.
A separate question that arises at times is whether a Member‘s campaign,
having received a copy of an item that the congressional office issued publicly – such
as a press release or
Congressional Record
statement – may then reproduce and
distribute that item at campaign expense. The Standards Committee addressed
this matter in its
Advisory Opinion No. 6
, which was issued on September 14, 1982,
and is reprinted in updated form in the appendices. A Member‘s campaign is free to
reproduce and distribute, for campaign purposes, materials that were originally
prepared by the congressional office, provided that the following requirements are
satisfied:
The materials were prepared by the congressional office for a bona fide
official purpose, and the official use of the materials has been exhausted;
All the expenses associated with reproducing and distributing the materials
are paid from campaign funds; and
The materials themselves or the context in which they are presented clearly
establishes their campaign or political purposes and hence their nonofficial
use, so that there is no appearance that private funds are supplementing
official allowances.
In reproducing such materials, the campaign must remove all official indicia,
such as the official letterhead from a press release that the congressional office had
issued, and any references to the address or telephone number of the congressional
office. The name of any congressional staff contact that appeared in the material as
issued originally must also be deleted. Subject to the same requirements, such
materials may also be posted on the Member‘s campaign website.
A question may arise as to when the official use of an item has been
―exhausted‖ as that term is used here. As a general matter, the official use of the
normal press release is exhausted once it has been disseminated and the media
Campaign Activity 135
have had an opportunity to utilize its contents. Thus usually a campaign will be
able to reproduce the contents of congressional office press releases a few days after
their original issuance, provided that the other requirements set forth above are
satisfied. On the other hand, when a congressional office posts a statement setting
out the Member‘s views on the major issues on its official website, the Member‘s
campaign is not free to reproduce that statement so long as it remains on the official
website. So long as a statement of that nature remains posted on the official site,
its official use is not exhausted.
Responding to Questionnaires on Legislative Issues. Congressional offices
frequently receive questionnaires from outside organizations, and often those
organizations use the responses to the questionnaires in deciding whether to
endorse the Member for re-election. When a questionnaire is limited to legislative
issues and the content of the response would comply with the Franking Regulations,
the response may be prepared by congressional staff on official time. Otherwise, the
response should be prepared by campaign staff.
Nonpartisan Voter Registration Materials. A Member may make
nonpartisan voter registration information available in a congressional office, but
may not actually register people to vote there. In addition, the franking statute (39
U.S.C. § 3210(a)(3)(H)) provides that nonpartisan voting registration or election
information is frankable.
Except as outlined above, the Standards Committee expects Members to
enforce the general rule that any campaign-related activities done by staff members
will be done on their own time, outside of congressional space, and without the use
of any official House resources.
Campaign Work by House Employees Outside the Congressional Office
and on Their Own Time
Once House employees have completed their official duties, they are free to
engage in campaign activities on their own time, as volunteers or for pay, as long as
they do not do so in congressional offices or facilities, or otherwise use official
resources. Executive branch personnel are subject to restrictions on partisan
political activity by the Hatch Act (5 U.S.C. § 7321
et seq.
), but those restrictions do
not apply to congressional employees.
16
It should be stressed that although House employees are free to engage in
campaign activities on their own time, in no event may a Member or office compel a
House employee to do campaign work. To do so would result in an impermissible
16
The restrictions on executive branch personnel were considerably eased in a 1993
enactment, the Hatch Act Reform Amendment, Pub. L. 103-94, 107 Stat. 1001 (1993).
136 HOUSE ETHICS MANUAL
official subsidy of the Member‘s campaign.
17
The prohibition against coercing staff
or requiring staff members to do campaign work is quite broad. It forbids Members
and senior staff from not only threatening or attempting to intimidate employees
regarding doing campaign work, but also from directing or otherwise pressuring
them to do such work.
What Is an Employee‘s ―Own Time‖?
What constitutes a staff member‘s ―own time‖ is determined by the personnel
policies that are in place in the employing office. Time that is available to a staff
member, under those policies, to engage in personal or other outside activities may
instead be used to do campaign work, if the individual so chooses. This free time
may include, for example, a lunch period, time after the end of the business day,
and annual leave. However, a Member may not adjust the work requirements of
the congressional office, or add unpaid interns during the campaign, in order to
create more ―free‖ time for staff to do campaign work. To help ensure compliance
with the rules, office policies on employee leave and other free time should be in
writing and distributed to all employees.
The Standards Committee has recognized that the hours that constitute a
staff member‘s ―own time‖ will not always correspond to evenings and weekends:
[D]ue to the irregular time frames in which the Congress operates, it is
unrealistic to impose conventional work hours and rules on
congressional employees. At some times, these employees may work
more than double the usual work week — at others, some less. Thus
employees are expected to fulfill the clerical work the Member requires
during the hours he requires and generally are free at other periods.
If, during the periods he is free, he voluntarily engages in campaign
activity, there is no bar to this.
18
In addition to engaging in campaign activity while on annual leave or during
other free time, employees may do so by –
Reducing their employment in the congressional office to part-time status,
with a corresponding reduction in salary; or
17
Depending on the circumstances, compelling a House employee to do campaign work may
also violate a provision of the federal criminal code, 18 U.S.C. § 606. That statute covers
intimidation to secure not only monetary contributions for a political purpose, but anything of value,
apparently including services.
18
House Comm. on Standards of Official Conduct,
Advisory Opinion No. 2
(July 11, 1973).
However, the professional staff members of House committees should note clause 9(b)(1)(A) of House
Rule 10, which provides that such staff members ―may not engage in any work other than committee
business during congressional working hours.‖
Campaign Activity 137
Going on Leave Without Pay (―LWOP‖) status for the purpose of working on
the campaign.
However, prior to going on LWOP status, an employee should carefully
review the requirements for that status that are set out in the
Members‘ Handbook
and the
Committees‘ Handbook
issued by the Committee on House Administration
and should consult with staff of that committee as necessary.
Employees who do campaign work while remaining on the House payroll
should keep careful records of the time they spend on official activities and,
separately, on campaign activities, and demonstrate that campaign work was not
done on official time. There is no set format for maintaining such time records.
The rules governing campaign work by House employees were implicated in a
Standards Committee disciplinary case that was completed in the 106
th
Congress.
19
In that case the Committee determined that a Member had violated the House Code
of Official Conduct in that his staff members worked for his campaign during
regular office hours without taking annual leave or going on Leave Without Pay
status, or taking any other steps to ensure that those services were rendered during
time that was properly deemed the employee‘s ―own time.‖
20
The employees in that
office took ―administrative leave‖ whenever they performed campaign work.
However, they were paid their full congressional salary while on ―administrative
leave,‖ and the office had no system in place to ensure that time spent in that status
was recorded and was either made up at alternate times or charged as vacation
time.
21
Need To Comply With Laws and Rules Applicable to House Employees While Doing
Campaign Work
All House employees who do campaign work should bear in mind that they
continue to be bound by the laws and rules applicable to House employees. This
applies to employees who go to part-time status, and it applies as well to employees
on LWOP status, who continue to be employees of the House (and continue to be
eligible for certain employee benefits) even though they are not receiving
compensation from the House. House employees should take particular note of the
following.
The Prohibition Against Making a Contribution to One‘s Employing Member.
A provision of the federal criminal code, 18 U.S.C. § 603, makes it unlawful for any
19
H. Rep. 106-979,
supra
note 4
20
Id.
at 3G, 3I, 6-7, 51-64.
21
Id.
at 54.
138 HOUSE ETHICS MANUAL
federal officer or employee to make certain campaign contributions to ―the employer
or employing authority of the person making the contribution.‖ Accordingly, an
employee of a Member office is prohibited from making a ―contribution‖ as that
term is used in the statute (
see
below) to his or her employing Member. Regarding
the employees of a House committee, the legislative history of the statute provides
as follows:
An individual employed by a congressional committee cannot
contribute to the chairman of that particular committee. If the
individual is employed by the minority that individual cannot
contribute to the ranking minority member of the committee or the
chairman of the committee.
22
The contributions to which the statute applies are those made to influence a
federal election – that is, the term contribution is defined in the statute by reference
to the definition of that term stated in the Federal Election Campaign Act (―FECA‖)
(2 U.S.C. § 431(8)). The statute goes on to provide that a contribution to an
―authorized committee‖ as defined in the Act (
id.
§ 432(e)(1)) is considered a
contribution to the individual who authorized the committee.
The prohibition against an employee making such a contribution to the
individual‘s employing Member is absolute. A House employee may not make such
a contribution even if the contribution was entirely unsolicited and the employee
genuinely wishes to make the contribution. As a result of this statute, a House
employee may not purchase a ticket to a campaign fundraising event for the
employing Member.
23
The definition of the term contribution in the FECA is quite detailed, setting
out a number of items that either do or do not constitute a contribution for purposes
of the Act.
24
The definition is elaborated upon in the implementing regulations
issued by the Federal Election Commission (―FEC‖).
25
Staff members who do
22
Comm. on House Admin.,
Federal Election Campaign Act Amendments of 1979
, H. Rep.
96-422, 96
th
Cong., 1
st
Sess. 26 (1979).
23
Regarding the circumstances in which a House employee may accept a free ticket to a
campaign fundraising event, see discussion below on ―Gift Rule Provisions Applicable to Campaign
Activity.‖
24
2 U.S.C. § 431(8). The statute provides that among the items that do not constitute a
contribution for purposes of FECA is ―the value of services provided without compensation by any
individual who volunteers on behalf of a candidate or political committee.‖
Id.
§ 431(8)(B)(i). Thus a
House employee does not make an impermissible contribution to his or her employing Member by
doing volunteer work for the Member‘s campaign.
25
11 C.F.R. § 100.51
et seq
.
Campaign Activity 139
campaign work need to be familiar with those provisions so as to avoid making a
prohibited contribution to their employing Member.
In particular, staff members should be aware that under FEC regulations,
most outlays that an individual makes on behalf of a campaign are deemed to be a
contribution to that campaign from that individual.
26
This is so even if it is
intended that the campaign will reimburse the individual promptly. The major
exception to this rule is for outlays that an individual makes to cover expenses that
he or she incurs in traveling on behalf of a campaign.
27
Accordingly, a House employee should not make any outlay on behalf of the
employing Member‘s campaign, other than outlays for the employee‘s personal
travel expenses that are consistent with the FEC regulations, or for another
purpose that is deemed not to constitute a contribution under FECA or the
regulations.
28
Example 6.
A Member‘s campaign wishes to purchase some souvenirs
from the House gift store to give as gifts to the Member‘s supporters.
An employee of the Member‘s congressional office may not purchase
the items with her own money or a personal credit card, even if the
campaign makes arrangements to reimburse her promptly. However,
the Member may purchase the souvenirs with his personal funds and
receive reimbursement from the campaign.
Thus when a House employee undertakes to do campaign work – on the
employee‘s own time and outside of congressional space, in accordance with the
rules summarized above – the individual should make appropriate arrangements
with the campaign to ensure that he or she will not be called upon to make any
improper outlays. The arrangements may include, for example, providing the
individual, in advance, with any funds that might be needed to cover anticipated
campaign expenses, or providing the individual with use of a campaign credit card.
26
Id.
§ 116.5(b).
27
Outlays for one‘s own travel will not be deemed a contribution if either (1) the campaign
provides reimbursement within 60 days after the expenses are incurred if payment was made by
credit card, or within 30 days in all other cases (
id.
§ 116.5(b)(1), (2)), or (2) the individual‘s outlays
for transportation do not exceed $1,000 with respect to a single election, regardless of whether the
campaign reimburses the outlays (
id.
§ 100.79(a)).
28
One set of provisions that may be applicable here is that which excludes from the
definition of ―contribution‖ an expenditure by an individual of up to $1,000 per election for food,
beverages, and invitations for a campaign event held in the individual‘s home or in a church or
community center.
See
2 U.S.C. § 431(8)(B)(ii) and 11 C.F.R. §100.75-.77. Another provision
excludes from the definition of ―contribution‖ the use of computer equipment in connection with
internet activities for the purpose of influencing a federal election. 11 C.F.R. § 100.94.
140 HOUSE ETHICS MANUAL
While the law prohibits House employees from making campaign
contributions to their employing Member, the law does not prohibit them from
making a campaign contribution to any other candidate, including another House
Member. In addition, the law does not prohibit House employees from making
contributions to multicandidate political committees, such as a PAC or the
Democratic or Republican Congressional Campaign Committees, even though some
of the proceeds received by such committees may eventually be spent for the benefit
of the contributor‘s employee. In making such a contribution, however, an employee
should not earmark it for use in the campaign of the employing Member, because
that could be deemed a contribution from the employee to the Member.
29
With regard to those contributions from House employees that are not
prohibited by 18 U.S.C. § 603, both Members and staff should bear in mind that a
separate provision of the federal criminal code, 18 U.S.C. § 606, prohibits the use of
intimidation to secure such contributions. Specifically, that statute makes it
unlawful for a Senator, Representative, or federal officer or employee to discharge,
demote, or promote another federal officer or employee, or to threaten or promise to
do so, for making or failing to make ―any contribution of money or other valuable
thing for any political purpose.‖
Requirement That Each Employee Perform Duties Commensurate With
Compensation. Under House Rule 23, clause 8 a Member is always responsible for
ensuring that each of his or her employees performs official duties that are
commensurate with the compensation that the employee receives from the House.
Thus when it is anticipated that an employee will be assuming significant campaign
duties, it may be necessary for the employing Member to make an appropriate
reduction in the employee‘s House pay.
Certainly an appropriate reduction in salary is necessary when a full-time
employee goes to part-time status in the congressional office in order to do
campaign work. Members and staff should also bear in mind that bonuses,
including ―lump sum‖ payments, are for the performance of official duties only, and
they are not to serve as compensation or a reward for campaign work.
30
The Gift Rule. The provisions of the gift rule (House Rule 25, clause 5) that
apply with regard to campaign and political activity are summarized below at the
end of this chapter. Members as well as staff are subject to those provisions of the
gift rule when engaging in campaign or political activity. A full explanation of the
gift rule is found in Chapter 2 on gifts.
29
See
11 C.F.R. § 110.6.
30
For guidance on ―lump sum‖ payments, see Chapter 7 on staff rights and duties.
Campaign Activity 141
Prohibition Against Representing Others Before Federal Agencies.
Provisions of the federal criminal code (18 U.S.C. §§ 203, 205) generally prohibit
House employees from representing anyone before any government agency,
department, court or officer in any matter in which the United States is a party or
has an interest. The latter statute applies whether or not the House employee is
compensated for his or her services.
These statutes would appear to prohibit a House employee from, for example,
representing a campaign committee in a matter before the FEC. However, it also
appears that these statutes do not prohibit a House employee from completing and
signing contribution and expenditure reports to be filed with the FEC
31
(although
such work would have to be done outside of congressional space and on the
employee‘s own time, in accordance with the rules summarized above). Further
information on these statutes is contained in Chapter 5 on outside employment and
income.
For ―Senior Staff,‖ the Annual Limitation on Outside Earned Income and the
Outside Employment Restrictions. House employees who are paid at or above the
―senior staff‖ level for more than 90 days in a calendar year are subject both to an
annual limitation on their outside earned income and to a set of restrictions on their
outside employment.
32
(House Members and officers are subject to these same
provisions.) As a general matter, the limit and restrictions apply to senior staff who
do campaign or political work on a compensated basis.
The ―senior staff‖ pay level is determined on a calendar year basis, and
during calendar year 2008, it is an annual rate of $114,468. Accordingly, any House
employee who is paid at or above that rate for more than 90 days during calendar
year 2008 is subject to the outside earned income limitation and the outside
employment restrictions. The pay threshold for other years is available from the
Standards Committee staff.
The dollar amount of the outside earned income limitation is also determined
on a calendar year basis, and for calendar year 2008, the limitation is $25,830.
Thus when a House senior staff member works part-time for a campaign, he or she
may not receive compensation for campaign services rendered in calendar year 2008
that exceeds $25,830. The annual limitation applicable to other years is available
from the Standards Committee staff.
31
See
U.S. Office of Government Ethics (―OGE‖) Advisory Opinions 85 x 3 and 81 x 21,
regarding the applicability of 18 U.S.C. §§ 203, 205 to a federal employee preparing income tax
returns for others. Copies of OGE advisory opinions are available through OGE‘s website.
32
House Rule 25, clauses 1, 4; 5 U.S.C. app. 4 §§ 501-505.
142 HOUSE ETHICS MANUAL
However, the Standards Committee has determined that the outside earned
income limitation does not apply to the campaign salary received by a senior staff
member who is on Leave Without Pay status.
Example 7.
A senior staff member is paid a total of $30,000 by her
employing Member‘s campaign for work done during calendar year
2008. Of that amount, $15,000 was paid for campaign services
provided while the staff member was on LWOP status. The staff
member has not violated the outside earned income limitation, because
the amount paid for work done while on LWOP status does not count
toward the annual limitation.
Further information on the outside earned income limitation is found in Chapter 5
on outside employment and income.
The outside employment restrictions define certain activities for which senior
staff (as well as House Members and officers) may not receive any compensation
whatsoever. The restrictions prohibit senior staff from, among other things, (1)
receiving compensation for practicing any profession that involves a fiduciary
relationship, including, for example, law or accounting, and (2) serving for
compensation as an officer or director of any entity.
Accordingly, a senior staff member, as defined above, may not receive any
compensation for either providing legal services to a political organization, or for
serving as an officer (such as treasurer) of such an organization. Further
information on the employment restrictions applicable to Members, officers, and
employees is found in Chapter 5.
Candidacy of a House Employee for Elective Office
At times a House employee wishes to run for an elective office while
continuing as an employee. There is no absolute prohibition against a staff member
becoming a candidate for a state or local elective office, but such activity is subject
to a number of restrictions. Most importantly, the individual‘s employing Member
must consent to the candidacy, and the employee must comply with the rules and
requirements on performing campaign activity that are summarized above. Those
requirements include that the employee perform congressional duties that are
commensurate with the compensation he or she receives from the House – and thus
that compensation be reduced proportionately with any reduction in the employee‘s
time in the congressional office – and that any campaign activity be performed on
the individual‘s own time, and outside of congressional space. Further guidance on
the matter of staff candidacy for local office is provided in Chapter 5. An employee
considering a candidacy for elective office should contact the Committee for specific
advice.
Campaign Activity 143
However, different considerations apply when a Member is departing office,
and one of the Member‘s employees wishes to become a candidate to succeed the
Member. In that circumstance, the Committee has taken the position that the staff
member must terminate his or her employment in the congressional office upon
becoming a candidate.
33
Among the considerations on which this Committee
determination is based are the significant time demands of a congressional
candidacy, and the strong potential for conflict of interest when an employee is
seeking to succeed the employee‘s employing Member.
The Committee has also determined that, subject to certain restrictions, a
staff member contemplating becoming a candidate to succeed the individual‘s
employing Member may engage in pre-candidacy, ―testing the waters‖ activities
without terminating his or her congressional employment. The restrictions include
that the individual may do so only if his or her employing Member consents, the
employee complies with the rules and regulations that are generally applicable to
campaign activity by employees, and the employee‘s activities do not go beyond
―testing the waters‖ as defined by the FEC. The permissible ―testing the waters‖
activities are described in the FEC publication,
Campaign Guide for Congressional
Candidates and Committees
. Among the activities that are prohibited under that
advice are any that indicate that the individual has in fact become a candidate, such
as the use of general public political advertising, or the raising of funds beyond
those reasonably necessary to determine whether one should become a candidate.
Campaign Contributions and Contributors
This section addresses the laws, rules, and standards of conduct on three
subjects related to campaign or political contributions:
The solicitation of contributions;
The receipt and acceptance of contributions; and
The general prohibition against taking actions in one‘s official capacity on the
basis of political considerations.
Soliciting Campaign and Political Contributions
While the federal gift statute (5 U.S.C. § 7353) broadly restricts the ability of
House Members and staff to solicit things of value from virtually anyone, even when
no personal benefit to the solicitor is involved, legislative materials concerning the
33
The same requirement will usually apply when an employee runs for the House in a newly
created district resulting from reapportionment, and that district includes part of his or her
employing Member‘s district. Any employee considering running for the House in these
circumstances should contact the Committee for specific advice.
144 HOUSE ETHICS MANUAL
statute state that it does not apply to the solicitation of political contributions.
34
Consistent with those materials, the Standards Committee has long taken the
position that the restrictions on solicitation set forth in that statute do not apply to
political solicitations. However, in soliciting campaign or political contributions,
Members and staff are subject to a number of other restrictions, as follows.
No Knowing Solicitation of Federal Employees. A provision of the federal
criminal code, 18 U.S.C. § 602, prohibits Members of Congress and staff (as well as
candidates for Congress and other federal employees) from knowingly soliciting any
contribution from any other federal officer or employee.
The contributions to which this statute applies are those made to influence a
federal election. That is, the term contribution is defined in this statute by
reference to the definition stated in the Federal Election Campaign Act (―FECA‖) (2
U.S.C. § 431(8)). (As discussed above, ―contribution‖ is defined in the same manner
in the statute prohibiting federal employees from making a contribution to their
employer, 18 U.S.C. § 603.)
The statute prohibits the ―knowing‖ soliciting of contributions from federal
employees. Accordingly, an inadvertent solicitation of a federal employee, such as
may occur in a general fundraising campaign aimed at the public at large, would
not violate the statute.
35
In addition, the statute does not prohibit the receipt of
unsolicited contributions from House or other federal employees (although, as
previously noted, a separate statute prohibits those employees from making a
contribution to their employer).
It is clear both from the terms of 18 U.S.C. § 602 and from its legislative
history
36
that the solicitation of contributions by House Members from other
Members does not violate the statute. It is also permissible under the statute for
House and other federal employees to solicit contributions from Members.
No Solicitation in House Offices, Rooms, or Buildings. The prohibition
against House Members or employees soliciting campaign or political contributions
in or from House offices, rooms, or buildings is very broad. With one minor
exception that is discussed below, the prohibition applies to all forms of solicitations
– solicitations made in person, over the telephone, or through the mail – and it
applies to solicitations of any kind of campaign or political contribution, including
34
136
Cong. Rec.
H1647 (daily ed. April 24, 1990) (regarding technical corrections to the
Ethics Reform Act of 1989).
35
See
113
Cong. Rec.
25,703 (Sept. 11, 1973), and H. Rep. 96-422,
supra
note 22, at 25.
36
125
Cong. Rec.
36,754 (1979) (statement of Sen. Hatfield).
Campaign Activity 145
contributions subject to FECA, and contributions for a state or local campaign, and
so-called ―soft money‖ contributions.
A telephone solicitation from a House office or building would not be
permissible merely because the call is billed to a credit card of a political
organization or to an outside telephone number, or because it is made using a cell
phone in the hallway. Similarly, when a House Member or employee makes
solicitation calls somewhere else, such as at one of the campaign committee offices,
and has to leave a message, the individual should not leave his or her House office
telephone number for the return call. In addition, a fundraising mailing should not
be either prepared or assembled in a House room or office, even if no House
equipment or supplies are used in the process.
These prohibitions derive from both a provision of the federal criminal code,
18 U.S.C. § 607,
37
as well as from rules and standards of conduct of the House. The
criminal statute makes it unlawful ―to solicit or receive a donation of money or other
things of value in connection with a Federal, State, or local election from a person
who is located in a room or building occupied in the discharge of official duties.‖
The statute prohibits the solicitation or receipt of contributions, including ―soft
money‖ contributions, by federal officials and from anyone who is located in a
federal building occupied by federal officials or employees used to discharge official
duties. (The provisions of this statute regarding the receipt of such contributions in
those rooms and buildings are discussed below.) The statute by its terms applies to
the House office buildings, the Capitol, and district offices.
In addition, the rules issued by the House Office Building Commission
concerning the use of the House office buildings prohibit the soliciting of
contributions in the buildings other than for certain charitable purposes.
38
Moreover, as discussed above, the House rooms, offices, and buildings are
considered official resources, and as such, they are not be used for the conduct of
any campaign or political activity, including the solicitation of contributions.
However, with one exception,
39
the rules and standards of conduct enforced by
the Standards Committee do not prohibit Members from soliciting (or receiving)
campaign or political contributions from other Members in the House buildings.
37
The statute was amended by § 302 of the Bipartisan Campaign Reform Act of 2002, Pub. L.
107-155, 116 Stat. 96 (March 27, 2002).
38
Rules of the House Office Building Commission were last revised in February 1999
(available from the Speaker‘s office).
39
See
House Rule 4, cl. 7 (―A Member, . . . officer, or employee of the House, or any other
person entitled to admission to the Hall of the House or rooms leading thereto by this rule, may not
knowingly distribute a political campaign contribution in the Hall of the House or rooms leading
thereto.‖).
146 HOUSE ETHICS MANUAL
Long ago the House took the position that Member-to-Member solicitation is
permissible, notwithstanding a criminal statute (predecessor to current 18 U.S.C.
§ 607) that generally barred political solicitations in federal buildings.
40
The
Standards Committee has reiterated that position in a number of advisory
memoranda it has issued to the House, the first of which was dated November 21,
1985.
Several points regarding Member-to-Member solicitation in the House
buildings should be noted:
This guidance applies only to Member-to-Member solicitations. Staff
solicitation of Members in House buildings, even when done at the direction
of a Member, or when done from telephones located in a campaign office, is
not permissible.
Members may solicit other Members in person, over the telephone, or
through the mail, but the use of official stationery in making written
solicitations is not permissible.
While the Justice Department has responsibility for enforcing the criminal
statute in this area, 18 U.S.C. § 607, so far as the Standards Committee is
aware, the Department‘s assent to the position of the House on Member-to-
Member solicitation, as summarized above, has never been sought.
No Use of Other Official Resources. The laws, rules, and standards of
conduct discussed above that generally prohibit the use of official House resources
for campaign or political activity certainly prohibit their use in soliciting campaign
or political contributions. The resources subject to this prohibition include office
equipment, such as the computers, telephones and fax machines, office supplies,
official stationery, and congressional staff time. House employees may be involved
in soliciting campaign contributions only on their own time and outside of
congressional space, as discussed above.
No Use of a Facsimile of Official Stationery. Later in this chapter, the rules
on letterhead used for campaign purposes are discussed. Those rules clearly apply
to any letter that solicits campaign or political contributions.
No Link With an Official Action or Special Access. The chapter on gifts
makes the point that a House Member or employee should never accept any gift
that is linked to any official action that he or she has taken or is being asked to
take, and it includes a discussion on the criminal bribery and illegal gratuities
40
6
Cannon‘s Precedents of the House of Representatives
§ 401 (1936), concerning a
resolution on this matter that was approved by the House in 1913.
Campaign Activity 147
statutes. Similarly, no solicitation of a campaign or political contribution may be
linked to an action taken or to be taken by a Member or employee in his or her
official capacity. An early work on congressional ethics addresses this subject as
follows:
It is probably not wrong for the campaign managers of a legislator . . . to
request contributions from those for whom the legislator has done appreciable
favors, but this should never be presented as a payment for the services rendered.
Moreover, the possibility of such a contribution should never be suggested by the
legislator or his staff at the time the favor is done. Furthermore, a decent interval
of time should be allowed to lapse so that neither party will feel that there is a close
connection between the two acts. Finally, not the slightest pressure should be put
upon the recipients of the favors in regard to the campaign.
41
The Standards Committee has long advised Members and staff that they
should always exercise caution to avoid even the appearance that solicitations of
campaign contributions are connected in any way with an action taken or to be
taken in their official capacity.
Example 8.
A House staff member is working with representatives of a
corporation on legislation supported by that corporation. The staff
member may do campaign work consistent with the rules set out
above, including soliciting contributions. However, at least while the
staff member is doing that legislative work, and for a reasonable period
thereafter, he should not solicit contributions from the representatives
of that corporation.
Example 9.
As part of its decision-making process on whether to
continue to fund a particular Defense Department procurement, a
committee sponsors an official fact-finding trip to the facilities of the
manufacturer. Company officials propose to hold a campaign
fundraiser for a participating Member while he is in town. The
Member should decline the suggestion. (If such a trip were instead
sponsored and paid for by the manufacturer, Member attendance at a
fundraiser during the course of the trip may be precluded in any event
by FEC rules.
See
Chapter 3 on travel.)
Furthermore, a Member should not sponsor or participate in any solicitation
that offers donors any special access to the Member in the Member‘s official
capacity. In this regard, in 1987 a Senate Committee Chairman invited lobbyists
and PAC directors to join a ―Chairman‘s Council,‖ the members of which would
41
Paul H. Douglas,
Ethics in Government
89-90 (1952).
148 HOUSE ETHICS MANUAL
donate $10,000 to his campaign and have breakfast with him once a month, at
which legislative matters could be discussed.
42
While the Senator dissolved the club
soon after it was publicized,
43
later in the year the Senate Ethics Committee issued
a ruling on whether Senators may offer membership in policy discussion groups in
return for campaign contributions. In discussing the matter, the Senate Committee
observed:
Offering campaign contributors access to those discussions [of policy
and legislative issues] in direct return for campaign contributions
creates the appearance that contributors receive special access to the
Members, and thereby exercise undue influence on the legislative
process.
The Senate Committee‘s ruling was as follows:
While solicitations offering access to policy discussion groups
may violate no law or Senate rule, they nonetheless affect public
confidence in the Senate. Therefore, Senators should not make
solicitations which may create the appearance that, because of a
campaign contribution, a contributor will receive or is entitled to either
special treatment or special access to the Senator.
44
House Members should adhere to the same rule with regard to official access.
Do Not Direct Contributions to a House Office. A solicitation for campaign or
political contributions should not in any way request or suggest that the recipient
mail or deliver a contribution to a House office. As explained immediately below,
federal law allows the receipt of a contribution in a congressional office, but only if
the contribution arrives there unexpectedly. Accordingly, for example, a written
solicitation should not include any House office address. (For that matter, a House
office address or telephone number should not be included on any political
communication.) Likewise, oral solicitations should not contain any suggestion that
response may be made to the congressional office.
Receipt and Acceptance of Contributions
The gift rule (House 25, clause 5) prohibits House Members and staff from
accepting any gift except as specifically provided in the rule. One of the gifts that
Members and staff may accept under a provision of the rule (clause 5(a)(3)(B)) is:
42
Wash. Post
, Feb. 3, 1987, at A1.
43
Id.
, Feb. 7, 1987, at A1.
44
Senate Select Comm. on Ethics,
Interpretative Ruling No. 427
(Sept. 25, 1987).
Campaign Activity 149
[a] contribution, as defined in section 301(8) of the Federal Election
Campaign Act of 1971 (2 U.S.C. 431) that is lawfully made under that
Act, [and] a lawful contribution for election to a State or local
government office.
Accordingly, acceptance of an unlawful contribution under either FECA or
applicable state law may violate the House gift rule as well.
Receipt of a Contribution in a House Office. As indicated above, a provision
of the federal criminal code, 18 U.S.C. § 607, generally prohibits the receipt of
federal campaign contributions ―in a room or building occupied in the discharge of
official duties by an officer or employee of the United States.‖ However, the statute
includes, in subsection (b), an exception stating that the prohibition does not apply
to contributions received by congressional staff, provided that two requirements are
satisfied:
―such contributions have not been solicited in any manner which directs the
contributor to mail or deliver a contribution to any [federal] room, building,
or other facility,‖ and
―such contributions are transferred within seven days of receipt to a political
committee within the meaning of section 302(e) of the Federal Election
Campaign Act of 1971.‖
Accordingly, receipt of a contribution in a House office is permissible under
the statute only if the contribution arrives there unexpectedly. Thus, as stated
above, a solicitation should never request or suggest that a contribution be sent or
delivered to a House office, and furthermore, Members and employees may not
assent in advance to the sending or delivery of a contribution to a House office.
Example 10.
In a conversation with an individual who will be visiting
the Member in the congressional office, a staff person learns that the
individual intends to give the Member a campaign contribution during
the visit. The staff person should tell the individual that the Member
will not be able to accept the contribution in the office and that an
alternative means of tendering the contribution will have to be used.
However, merely because a contribution does not violate 18 U.S.C. § 607 in
that it was presented or received in the office unexpectedly does not necessarily
mean that the contribution may be accepted. A contribution that is linked with an
official action that a Member or employee has taken or is being asked to take may
not be accepted. This would occur, for example, if a purpose of an individual‘s visit
to the office, in addition to presenting a contribution, is to urge the Member to
support a particular piece of legislation. This point is further discussed below.
150 HOUSE ETHICS MANUAL
The requirement of 18 U.S.C. § 607 that a contribution be transferred to the
campaign within seven days must be satisfied without use of any official resources.
Campaign envelopes and stamps may be used to forward such contributions, and
thus it may be desirable for a congressional office to have a supply of those
envelopes and stamps for use in forwarding both contributions and campaign-
related inquiries that are received in the office.
A Contribution Linked to an Official Action May Not Be Accepted. As
discussed above, no solicitation of a campaign or political contribution may be
linked to any action taken or to be taken by a Member or employee in his or her
official capacity.
In a similar vein, a Member or employee may not accept any contribution
that the donor links to any official action that the Member or employee has taken,
or is being asked to take. In this respect, a campaign or political contribution is
treated like any other gift, and acceptance of a contribution in these circumstances
may implicate a provision of the federal gift statute (5 U.S.C. § 7353) or the criminal
statutes on bribery and illegal gratuities.
Further information on this subject is available in Chapter 2 on gifts. Please
note, however, that while certain token gifts of appreciation (such as candy or
flowers) for an official action may be acceptable, no campaign contribution that is
linked to an official action is ever acceptable.
Example 11.
An office receives a letter from a constituent requesting
casework assistance. A check made out to the Member‘s campaign is
enclosed with the letter, but the letter makes no reference to the check.
While the office may assist the constituent, the check must be returned
to the constituent. Because the check was sent with a request for
assistance, it is impermissibly linked with an official action.
Prohibition Against Linking Official Actions to Partisan or Political Considerations
As detailed above, a solicitation for campaign or political contributions may
not be linked with an official action taken or to be taken by a House Member or
employee, and a Member may not accept any contribution that is linked with an
action that the Member has taken or is being asked to take. A corollary of these
rules is that Members and staff are not to take or withhold any official action on the
basis of the campaign contributions or support of the involved individuals, or their
partisan affiliation. Members and staff are likewise prohibited from threatening
punitive action on the basis of such considerations.
Questions in this area have arisen most frequently on the matter of
casework, and on this subject, the Standards Committee has long advised Members
Campaign Activity 151
and staff that they are not to give preferential treatment to casework requests made
by the Member‘s supporters or contributors. Instead, all requests for casework
assistance are to be handled according to their merits.
Advisory Opinion No. 1
of
the Standards Committee, which was issued in 1970, states that one of the basic
standards of conduct regarding casework is the following:
A Member‘s responsibility in this area is to all his constituents
equally and should be pursued with diligence irrespective of political or
other considerations.
45
Essentially the same point was made in a report issued by the Senate Select
Committee on Ethics in connection with the ―Keating Five‖ case:
The cardinal principle governing Senators‘ conduct in this area
is that a Senator and a Senator‘s office should make decisions about
whether to intervene with the executive branch or independent
agencies on behalf of an individual without regard to whether the
individual has contributed, or promised to contribute, to the Senator‘s
campaigns or other causes in which he or she has a financial, political
or personal interest.
46
While the guidance set forth above is specifically addressed to the handling of
casework matters, that guidance is applicable to all official actions taken by
Members and staff, including with regard to legislation. In this regard, one of the
key provisions of the Code of Ethics for Government Service states, in ¶ 5, that
government officials should ―[n]ever discriminate unfairly by the dispensing of
special favors or privileges to anyone, whether for remuneration or not.‖ The Code
further provides, in ¶ 10, that ―public office is a public trust,‖ and thus the public
has a right to expect House Members and staff to exercise impartial judgment in
performing their duties.
More generally, one of the ultimate purposes of the ethics rules is to help
ensure that each governmental action is taken on the merits of the particular
question, rather than any extraneous factors. On this point, one scholar on
government ethics has stated: ―Ethics rules, if reasonably drafted and reliably
enforced, increase the likelihood that legislators (and other officials) will make
decisions and policies on the basis of the merits of issues, rather than on the basis of
factors (such as personal gain) that should be irrelevant.‖
47
45
The full text of
Advisory Opinion No.
1
is reprinted in the appendices to this Manual.
46
Senate Select Comm. on Ethics,
Investigation of Sen. Alan Cranston
, S. Rep. 102-223, 102d
Cong., 1
st
Sess. 11-12 (1991) (footnote omitted).
47
Congressional Ethics Reform: Hearings Before the Bipartisan Task Force on Ethics, U.S.
House of Representatives, 101
st
Cong., 1
st
Sess. 113 (1989) (statement of Dennis F. Thompson).
152 HOUSE ETHICS MANUAL
Proper Use of Campaign Funds and Resources
The first section of this chapter summarizes the rules to which House
Members and staff are subject in their use of official House resources, and in
particular the prohibition against using those resources for campaign or political
purposes. Campaign resources – campaign funds, as well as the goods and services
acquired with campaign funds – are an entirely separate set of resources available
to Members. This section addresses the rules to which House Members and their
campaign staff are subject in their use of campaign resources.
As detailed in this section, both the House Rules and the Federal Election
Campaign Act (―FECA‖) include provisions regulating the use of campaign funds
and resources. The provisions of the House rules apply to any campaign funds
under a Member‘s control, including those for elections to state or local office,
whereas the provisions of FECA apply only to campaign funds for federal office. A
Member‘s use of campaign funds for federal office is permissible only if it complies
with the provisions of both the House Rules and FECA.
The major provision of the House rules on proper use of campaign funds is
found in the House Code of Official Conduct, which is set forth in House Rule 23.
House Rule 23, clause 6 provides as follows:
A Member, Delegate, or Resident Commissioner –
(a) shall keep his campaign funds separate from his personal
funds;
(b) may not convert campaign funds to personal use in excess of
an amount representing reimbursement for legitimate and verifiable
campaign expenditures; and
(c) except as provided in clause 1(b) of rule XXIV, may not
expend funds from his campaign account that are not attributable to
bona fide campaign or political purposes.
In addition, use of campaign funds for official House purposes is limited by
provisions of both the House rules and statutory law, including House Rule 24,
clause 1 and 2 U.S.C. § 59e(d)(1). At the beginning of the 109
th
Congress, the House
rules were amended to permit the use of funds from the principal campaign account
to pay for certain, limited types of official expenses. The purpose of the amendment
was to conform House rules to current law (
see
section 105, Pub. L. 108-83, 117
Stat. 1018 (2003)), and the amendment mirrored the Senate rules that took effect in
2002.
48
48
See
H. Res. 5, 109
th
Cong., 1
st
Sess. (151
Cong. Rec
. H13 (daily ed. Jan. 4, 2005)).
Campaign Activity 153
Thus, briefly stated a Member of the House –
May spend campaign funds for ―bona fide campaign or political purposes‖
only (with limited exceptions described below);
May not convert campaign funds or resources to personal use, and must be
able to verify that campaign resources have not been so misused; and
May not use campaign funds or resources for official House purposes, with
limited exceptions.
The rules generally preclude personal or official use of not only campaign
funds, but also certain equipment, goods, or services acquired with campaign funds
– including, for example, equipment such as a fax machine or computer, and the
services of paid campaign staff. However, as discussed later in this chapter, a
Member may use campaign funds to pay for a cell phone or ―personal digital
assistant‖ and use such devices for official and campaign purposes.
Further elaboration is provided below. In addition, reference is made to the
provision of FECA on proper use of campaign funds (2 U.S.C. § 439a), and to the
regulations and advisory opinions issued by the Federal Election Commission
(―FEC‖) on that subject. In 2002, through the Bipartisan Campaign Reform Act
(Pub. L. 107-155, 116 Stat. 81) (―BCRA‖) (also popularly referred to as ―Shays-
Meehan‖ or its predecessor measure ―McCain-Feingold‖), which became effective on
November 6, 2002, Congress retained the ban on personal use of campaign funds
and codified for the most part the FEC‘s previously issued regulations on personal
use. On December 13, 2002, the FEC published new regulations, which are found in
11 C.F.R. Part 113, retaining its pre-BCRA personal use regulations, with certain
exceptions (discussed below).
49
Members and staff should contact the FEC with questions regarding that
agency‘s rules. Two points on those rules that are particularly noteworthy.
First, in addition to consulting the FEC regulations on the matter of
impermissible personal use of campaign funds, the FEC has issued numerous
advisory opinions and they constitute an important body of law in this area.
50
Second, while FECA allows the use of campaign funds to pay expenses
incurred in connection with one‘s duties as a federal officeholder, House rules, as
noted above, only permit the use of campaign funds for certain limited purposes.
Accordingly, House Members should not rely on FEC materials that refer to or are
49
See
67
Fed. Reg
. 76962 (Dec. 13, 2002).
50
But see
67
Fed. Reg
. 76972 (noting that FEC Advisory Opinion 1999-1 (banning the use of
campaign funds to pay candidate salaries) has been superseded by BCRA).
154 HOUSE ETHICS MANUAL
based on the FECA‘s provision allowing the use of campaign funds to pay federal
officeholder expenses.
51
However, as explained immediately below, because of the
broad manner in which ―political purposes‖ is defined for purposes of the House
rules, particular uses of campaign funds that the FEC approves as federal
officeholder expenses may be permissible under the House rules as ―political‖
expenses.
Use for Bona Fide Campaign or Political Purposes
In General. While House rules provide that campaign funds may be used for
―bona fide campaign or political purposes‖ only, the rules do not include a definition
of that term. The Standards Committee has long advised that each Member has
wide discretion to determine whether any particular expenditure would serve such
purposes, provided that the Member does not convert campaign funds to personal or
official uses.
Put another way, the rule is not interpreted ―to limit the use of campaign
funds strictly to a Member‘s reelection campaign,‖ but instead is interpreted
―broadly to encompass the traditional politically-related activities of Members of
Congress.‖
52
Thus,
if a Member determines, for example, that advertisements in
publications of civic organizations, the mailing of holiday greetings to
constituents, or travel to meetings with local party officials, would
constitute a political expenditure, as so defined, or are otherwise
politically-related, then he may use campaign funds for that purpose.
53
Accordingly, a Member may use campaign funds to pay for activities that are
not overtly political in nature – such as mailing birthday or holiday greetings to
constituents – if (1) the Member determines that the activity serves a political
purpose, and (2) the activity does not involve a use of campaign funds for any
personal purpose. However, as detailed earlier in this chapter, Members and staff
must bear in mind that no official House resources may be used in support of any
campaign-funded activity. Thus, for example, holiday greeting cards that are
purchased with campaign funds may not be addressed either in the congressional
office or by congressional staff while on official time. The same applies to U.S.
Capitol Historical Society calendars that are purchased with campaign funds.
51
See, in this regard, House Comm. on Standards of Official Conduct,
Advisory Opinion No.
6
, which is reprinted in the appendices, for a further discussion.
52
House Select Comm. on Ethics,
Final Report
, H. Rep. 95-1837, 95
th
Cong., 2d Sess. 16
(1979).
53
Id.
Campaign Activity 155
Example 12.
As noted in the text, a Member may use campaign funds
to mail holiday greetings to his or her volunteers and contributors.
However, a Member may not use campaign funds to send such
greetings to family members or personal friends (other than those who
are also volunteers or contributors), as to do so would constitute a
personal use of campaign funds.
Examples of specific uses of campaign funds on which the Standards
Committee has received inquiries are set forth below. By and large, these activities
may, under House rules, be paid for with campaign funds, provided that the
Member determines that the activity would serve a bona fide political purpose and
raises no concern about personal use.
The discussion below also notes the applicable FEC advisory opinions that
have been issued to date. When a Member wishes to use campaign funds for a
purpose on which the Standards Committee has taken a position but the FEC has
not, the Member should consult with the FEC before proceeding.
Charitable or Community Service Projects. As a general matter, campaign
funds and resources may be used to establish or support a bona fide charitable or
community service project in the Member‘s district. On this point, FEC Advisory
Opinion 1999-34 is instructive.
54
In that opinion, the FEC approved a Member‘s use
of campaign funds to support a fundraising event for elementary schools in the
Member‘s district. Other participants in the event were local businesses, schools,
PTAs, and volunteers. The Member‘s campaign funds were to be used for printing
and postage costs for promotional materials, as well as to match donations made by
individuals dollar-for-dollar, up to a maximum donation by the campaign of
$60,000.
One factor in the FEC‘s decision was that no campaign activity on the
Member‘s behalf would occur at the event or in the promotion or other
arrangements for the event. For example, no campaigning would occur at the
event, whether by way of speeches, distribution of campaign material, or otherwise,
and the campaign would not attempt to use any information on the event‘s donors
for campaign purposes. The opinion indicates that if such campaign activity were
planned, then the donations for the event made by individuals and organizations
might be deemed campaign contributions to the Member under FECA, and hence
subject to the limitations and prohibitions of FECA.
54
Copies of this and all other FEC Advisory Opinions are available through the FEC‘s
website at www.fec.gov. The FEC issues written advisory opinions in response to specific written
requests, and both the requests and the advisory opinions are publicly available.
See
2 U.S.C. §
437f; 11 C.F.R. Part 112.
156 HOUSE ETHICS MANUAL
That Advisory Opinion addresses only the requirements of FECA on proper
use of campaign funds, and it does not address the applicable provisions of the
House rules. However, in the view of the Standards Committee, a Member may
properly determine that expenditures for the purposes and in the circumstances
described in that opinion serve a bona fide political purpose and hence are
permissible under House rules.
55
Also relevant here are the facts that FECA generally allows Members to
donate campaign funds to a charitable organization,
i.e.
, an organization described
in §170(c) of the Internal Revenue Code, and such donations are likewise
permissible under the House Rules.
56
Example 13.
A Member wishes to establish a ―Books for Kids‖
program in his district, in which donations of books for use in local
libraries are solicited, and the donated books are collected and then
made available to libraries. The program may be operated by
campaign staff, and campaign funds may be used to pay program costs
such as for printing. However, prior to soliciting for books, the
Member must obtain the permission of the Standards Committee to
make the solicitation (see Chapter 10 for a discussion of the
restrictions and limitations on solicitations). In addition, the program
must be conducted in compliance with FEC requirements, and no
official House resources may be used in furtherance of the program.
In Advisory Opinion 2000-37, the FEC advised a House Member that he
could use campaign funds to purchase replica ―Liberty Medals‖ from a private
company and award them to veterans in his district who had participated in the D-
Day landings in France during World War II. The FEC characterized this
undertaking by the Member as ―a form of community service.‖ Significantly, the
FEC characterized the cost of the particular medals (about $13 to $17 each) as
―relatively low,‖ and went on to caution that the undertaking would be problematic
under FEC rules if it entailed the use of campaign funds to confer a ―significant
personal benefit‖ upon the recipient veterans.
Payment of Certain Legal Expenses. The Standards Committee has
determined that it is generally permissible under House Rules for a Member to use
campaign funds to defend legal actions arising out of his or her campaign, election,
55
Another FEC Advisory Opinion, 1996-45, approves a Member‘s use of campaign funds to
pay the expenses of consultants to travel to her district for the purpose of leading a seminar that the
Member was sponsoring on racial and ethnic relations. The proposed seminar was to be held after
the election and was to include representatives of nonprofit organizations and city agencies in the
Member‘s district.
56
Final Report
, H. Rep. 95-1837,
supra
note 52, at 16-17.
Campaign Activity 157
or the performance of official duties. The basis of this determination is that the
protection of a Member‘s presumption of innocence in such actions is a valid
political purpose. Use of campaign funds to pay the legal expenses incurred in other
kinds of legal actions may also be permissible. However, campaign funds may not
be used when the action is primarily personal in nature, such as a matrimonial
action, or could result in a direct personal benefit for the Member.
Before using campaign funds to pay any legal expenses, a Member should
consult with the Standards Committee to ensure that the legal services are ones
that the Member may properly pay with campaign funds. A Member should also
consult with the FEC before using campaign funds for this purpose. In this regard,
under the FEC regulations on proper use of campaign funds, payment of legal
expenses is among the uses for which the FEC makes determinations on
impermissible personal use on a case-by-case basis.
57
However, the FEC has issued
a number of Advisory Opinions on use of campaign funds to pay legal expenses, and
an understanding of the approach that the FEC takes on this subject can be
obtained through a review of those opinions.
58
In addition (or alternatively), a Member, officer, or employee may choose to
set up a ―legal expense fund,‖ independent of any campaign fund, for the purpose of
paying the expenses of certain legal actions. The requirements for the
establishment of a legal expense fund are described in Chapter 2 on gifts.
In Advisory Opinion 2000-40, the FEC advised that House Members could
donate campaign funds to a legal expense fund that had been established by
another House Member. However, one of the specific bases of the FEC‘s decision
was the nature of the litigation for which the legal expense fund had been
established, and thus the opinion should not be read to grant a blanket approval of
the donation of campaign funds to any Member legal expense fund. Any Member
considering donating campaign funds to a legal expense fund should consult with
both the FEC and the Standards Committee.
Payment of Certain Travel Expenses. Under House Rules, campaign funds
may be used to pay travel expenses when the primary purpose of the trip is activity
that serves a bona fide campaign or political purpose, provided that the outlays are
limited to the expenses that are necessarily incurred in engaging in that activity.
Thus, quite clearly, campaign funds may be used to pay the expenses of a trip the
primary purpose of which is to attend a campaign or political event, or to engage in
other campaign activity. The general prohibition on the use of campaign funds for
57
11 C.F.R. § 113.1(g)(1)(ii)(A).
58
See, e.g.
, FEC Advisory Opinions 2006-35, 2005-11, 2003-17, 2003-15, 1998-1, 1997-27,
1997-12, 1996-24, and 1995-23.
158 HOUSE ETHICS MANUAL
personal travel is discussed in the next section of this chapter. The use of campaign
funds for official travel is also discussed below.
Notwithstanding the general permissibility of using campaign funds for
campaign travel, an amendment to the House Rules enacted during the 110
th
Congress
59
generally prohibits House Members from using campaign funds (as well
as official funds and personal funds) for travel on a non-commercial aircraft.
See
House Rule 23, clause 15. The prohibition applies to travel on an aircraft unless
one of the exceptions to the rule applies, including one that permits the use of
campaign funds for a flight when ―the aircraft is operated by an air carrier or
commercial operator certificated by the Federal Aviation Administration and the
flight is required to be conducted under air carrier safety rules.‖ In other words,
campaign funds generally may be used only for commercially scheduled flights and
flights provided by a commercial charter service, and may not be used for travel on
corporate or other privately-operated aircraft. This prohibition applies to the use of
funds from any campaign committee, including funds from a political action
committee. Further guidance on the use of non-commercial aircraft is found in the
Chapter 3 on travel.
There are circumstances in which campaign funds may properly be used to
pay travel expenses of not only a Member, but also his or her immediate family
members. For example, when the primary purpose of a trip taken by the spouse of
a Member is to accompany the Member at a political event – such as one of the
annual party fundraising dinners in Washington – campaign funds may be used to
pay the spouse‘s travel expenses.
Campaign funds may also be used to pay spouse travel expenses when the
primary purpose of the trip is to accompany the Member at certain non-political
events that the Member attends in his or her capacity as a Member. For example,
the Standards Committee approved the use of campaign funds to pay the travel
expenses of spouses and minor children of Members in attending the bipartisan
congressional retreats in Hershey, Pennsylvania, and in other locations. The FEC
also approved the use of campaign funds to pay the Hershey travel expenses in a
1997 advisory opinion.
60
In several other advisory opinions as well, the FEC approved the use of
campaign funds to pay travel and related expenses of a Member‘s spouse and minor
children.
61
Another FEC advisory opinion approves the use of campaign funds to
59
H. Res. 363, 110
th
Cong., 1
st
Sess. (May 2, 2007). This resolution amended in its entirety
an earlier provision contained in H. Res. 6, 110
th
Cong. 1
st
Sess. (Jan. 4, 2007).
60
FEC Advisory Opinion 1997-2.
61
E.g.
, FEC Advisory Opinions 2005-09 (travel expenses for minor children accompanying
Senator and spouse from district to Washington when parents traveling to participate in function
(con‘t next page)
Campaign Activity 159
pay for child care expenses incurred as a result of a need for the Member‘s wife to
accompany him to certain campaign-related events.
62
However, the approvals
granted in all of those opinions were based on the specific circumstances presented
in the underlying advisory opinion request, and thus a Member should not rely on
any of those opinions without first carefully reviewing them. Another FEC advisory
opinion, which is discussed in footnote 55 above, addresses the payment of travel
expenses of consultants to attend a seminar sponsored by a Member, and another
(1996-20) approves the use of campaign funds to pay the travel expenses of a
Member‘s staff member to attend a national party convention.
The Standards Committee has determined that a Member may, under House
Rules, use campaign funds to pay the Member‘s travel expenses to attend the
funeral of a retired Member, or a colleague‘s immediate family member.
63
(Member
travel to the funeral of a Member who dies while in office is generally arranged by
the House.)
Payment of Certain Meal Expenses. Campaign funds may be used to pay for
a meal in a number of circumstances, including, for example, a meal that
constitutes a bona fide campaign fund-raising event, and a meal incident to a bona
fide meeting on campaign business. Campaign funds may also be used to pay the
meal expenses incurred when a Member or campaign worker is traveling on
campaign business. Campaign funds may also be used to pay meal expenses when
a Member has a social meal with constituents (other than personal friends or
relatives of the Member) who are visiting Washington.
Outlays for meal expenses can, in certain circumstances, raise questions of
impermissible personal use of campaign funds. The applicability of the prohibition
against personal use of campaign funds to the payment of such expenses is
addressed later in this chapter.
Receptions and Related Activities for Visiting Constituents. Occasionally
when a group of constituents visits Washington, whether to tour or to lobby on
legislation, the Member wishes to hold a reception or similar event for the
participants.
directly connected to Senator‘s bona fide official responsibilities); 1996-34 (spouse travel to national
party convention, and spouse and child travel to accompany the Member on a campaign trip through
his district); 1996-19 (spouse and child travel to national party convention); 1995-47 (spouse travel to
national party convention); and 1995-20 (child accompanying parents in travel between Washington
and the Member‘s district for campaign purposes).
62
FEC Advisory Opinion 1995-42.
63
The FEC has not issued a formal advisory opinion on this point and should be consulted
before campaign funds are used for such a purpose.
160 HOUSE ETHICS MANUAL
Under rules of the Committee on House Administration, official Member and
committee funds may be used to pay for food and beverages only when those
expenses are incidental to an ―official‖ meeting that includes individuals who are
not House Members or staff, such as a meeting with constituents to discuss a
legislative issue. Official House funds may not be used to pay food or beverage
expenses related to social activities or social events, including the receptions held by
Members in connection with their swearing-in, or on Inauguration Day. However,
Members may use their campaign funds to pay the costs of such events.
A separate question is whether events of this nature, when paid for with
campaign funds, may be held in a House room or office. Prior to the end of the 105
th
Congress, the policy of the Standards Committee was that with only one exception,
campaign-funded events may not take place in House rooms or offices. That
exception was for the receptions held in honor of an individual‘s swearing-in as a
Member of Congress.
However, at the end of the 105
th
Congress, the Standards Committee changed
the policy so as to allow Members to use campaign funds to pay not only for
swearing-in receptions held in a House room or office, but also for other events that
are social in nature, including Inauguration Day receptions, and social events with
constituents. Members and staff should bear in mind, however, that as stated
above, House rooms and offices are not to be used for any events that are political in
nature, such as a meeting on campaign business, or a reception for the contributors
to one‘s campaign. This is so even if monies other than campaign funds are used to
pay the event‘s costs, or there is no cost to the event.
Letters, Mailings, and Other Communications That Are Not Frankable in
Content. At times Members wish to send letters or mailings, or make other
communications, that are not frankable in content under the House Franking
Regulations, and hence may not be created or sent using official House resources.
Examples of such communications include messages to constituents that are not
official in nature, such as birthday greetings, holiday greetings, and letters of
condolence. In addition, while letters of congratulations for a public distinction are
frankable, other letters of congratulation, such as for years of service at a business,
or retirement, are not. Under House rules, a Member may use campaign funds and
resources to create and send cards, letters, and certificates of these types to
constituents.
However, such materials may not be produced in or sent from any House
office, and may not be produced or sent using any other House resource, including
office equipment or staff while on official time.
Example 14.
Congressman A wishes to create a ―Congressman A
Award of Merit‖ certificate that he will present to constituents who
Campaign Activity 161
perform meritorious acts or services. The certificates may be printed
with campaign funds, but their content must comply with the same
restrictions that apply to campaign letterhead (
see
discussion below on
―Laws and Rules on Campaign Letterhead‖). In addition, official
House resources may not be used to promote the certificates, or in
connection with their presentation.
Occasionally Members wish to send a letter or mailing endorsing a particular
candidate for elective office, or commenting on a labor union organizing campaign or
some other kind of labor dispute in their district. As a general matter, campaign
funds and resources may likewise be used to create and send letters of this type.
However, the letterhead used on such mailings should comply with the guidance on
campaign letterhead found near the end of this chapter and may not resemble
official letterhead.
Letters, Mailings, and Events for House Leadership Elections. As a general
matter, a Member may use campaign funds to pay for activities in furtherance of a
campaign for one of the House leadership offices. For example, a Member may use
campaign funds to pay for a reception to promote one‘s candidacy for one of those
offices, and generally such an event may be held in a House room or office.
Similarly, a Member may use campaign funds or resources to send a mailing
regarding a leadership race.
A Member wishing to use any official House resource in furtherance of a
campaign for a House leadership office – such as official stationery, the Inside Mail,
or official staff time – should consult with the Committee on House Administration
or the Franking Commission, as well as with the Standards Committee, on the
extent to which those resources may be used for this purpose. However, when a
particular activity related to a leadership race is supported with campaign
resources, no official House resources may be devoted to that activity except to the
extent noted above.
Example 15.
A Member who is sending a mailing on a leadership race
decides to pay the printing and mailing expenses with campaign funds.
No official staff time or any other House resources may be used in
furtherance of the mailing.
Special Events for the Member‘s House or Campaign Staff. Under House
rules, campaign funds may be used to pay the costs of special events for the
Member‘s House or campaign staff that are social in nature. Examples would
include a holiday lunch or a farewell party for a departing staff member. A Member
may also use campaign funds to pay for food and beverages for staff in other
unusual circumstances, such as when the House is in session late or on a weekend.
However, the use of campaign funds to pay for food or beverages for staff in other
162 HOUSE ETHICS MANUAL
than special or unusual circumstances may constitute an impermissible use of funds
for personal purposes.
Member Moving Expenses To or From Washington, DC. Both the Standards
Committee and the FEC have long advised that a newly elected Member may use
campaign funds to pay the expenses incurred in moving to Washington, D.C.
64
Such
expenses are deemed to be campaign-related in that they are a direct result of
winning an election.
In addition, in 1996 the FEC advised a departing House Member that he
could use campaign funds to pay the expenses of moving both his congressional
office furnishings and his personal household furnishings and effects back to his
home state.
65
The Standards Committee has similarly advised that House Rules
allow a departing Member to use campaign funds for this purpose. It should be
noted, however, that the Standards Committee‘s advice on this matter is applicable
only to the extent that such moving expenses are paid prior to the time that the
Member leaves office, at which time the Committee loses jurisdiction over the
Member.
As a related matter, FEC regulations provide that campaign funds may be
used to defray the costs of winding down the office of a former federal officeholder
for a period of six months after he or she leaves office. 11 C.F.R. § 113.2(a)(2).
Gifts and Donations. The FEC regulations on use of campaign funds provide
that campaign funds may be used for ―[g]ifts of nominal value and donations of a
nominal amount made on a special occasion such as a holiday, graduation,
marriage, retirement, or death.‖
66
Such gifts may include the relatively inexpensive
House or Capitol souvenir items sold by the House gift store or the U.S. Capitol
Historical Society, and thus a Member may use campaign funds to purchase such
nominal-value gifts for the Member‘s supporters or contributors. Use of campaign
funds for a gift or donation is permissible only if the outlay serves a bona fide
campaign or political purpose, and in this regard, the regulation specifies that a
Member may not use campaign funds to make a gift or donation to a family
member. In addition, as noted below in the section of this chapter on the use of
campaign funds for official purposes, campaign funds may also be used to purchase
a gift for visiting foreign dignitaries.
64
Regarding the FEC,
see
Advisory Opinion 1980-138.
65
FEC Advisory Opinion 1996-14;
see also
Advisory Opinion 1996-44.
66
11 C.F.R. § 113.1(g)(4). Regarding the limitation to ―nominal value‖ gifts, see FEC
Advisory Opinion 2000-37.
Campaign Activity 163
Other Permissible Uses of Campaign Funds. As noted above, FECA
generally allows Members to donate campaign funds to any entity of the kinds
described in § 170(c) of the Internal Revenue Code – including a charitable or
educational organization, or a governmental entity – provided that there is no
conversion to personal use through the donation. In one advisory opinion, the FEC
concluded that committee campaign funds, and funds from a nonconnected
multicandidate committee, could be used for a portrait of a committee chairman to
be donated to the House of Representatives for display, because the House of
Representatives is an organization qualified under § 170(c).
67
FECA also allows the
transfer of campaign funds ―without limitation to any national, State, or local
committee of any political party.‖ Thus if otherwise lawful, campaign funds may be
transferred to another candidate, or invested for use in a future political campaign,
provided, again, that there is no conversion of funds to personal use. Campaign
funds may also be used for certain funeral expenses.
No Personal Use of Campaign Funds or Resources, and the Related Verification
Requirement
As noted above, prohibitions against the use of campaign funds for personal
purposes are found in both the House rules and the Federal Election Campaign Act
(―FECA‖). The manner in which these prohibitions have been implemented by the
Standards Committee and the Federal Election Commission (―FEC‖) is discussed
below.
House Rules. The key provision of the House rules barring use of campaign
funds for personal purposes is House Rule 23, clause 6(b) which provides that a
Member
may not convert campaign funds to personal use in excess of an
amount representing reimbursement for legitimate and verifiable
campaign expenditures. [Emphasis added.]
Two other provisions are pertinent here as well. First, House Rule 23, clause 6(a)
provides that each Member ―shall keep his campaign funds separate from his
personal funds.‖ Second, House Rule 23, clause 7 provides that a Member ―shall
treat as campaign contributions all proceeds from testimonial dinners or other fund-
raising events.‖
In addition, the provision of the rule prohibiting the use of campaign funds
for personal purposes is, of course, directly related to another provision of the rule,
discussed above, requiring the use of those funds for bona fide campaign or political
purposes. The Standards Committee has taken the position that Members, in
67
FEC Advisory Opinion 2007-18.
164 HOUSE ETHICS MANUAL
making expenditures of their campaign funds, must observe these provisions
strictly:
[A] bona fide campaign purpose is not established merely because the
use of campaign money
might
result in a campaign benefit as an
incident to benefits personally realized by the recipient of such funds .
. . .
68
The Committee has explained its reasons for taking this position in the
following manner:
[T]he Committee believes that any other interpretation . . . would
open the door to a potentially wide range of abuse and could result in
situations where campaign moneys were expended for personal
enjoyment, entertainment, or economic well-being of an individual
without any clear nexus that the funds so expended achieved any
political benefit . . . .
69
The Standards Committee has reiterated this position a number of times,
70
and it was incorporated as well into the 1989 Report of the House Bipartisan Task
Force on Ethics.
71
The rule by its terms requires that each campaign outlay made by a Member
be not only ―legitimate,‖ but also capable of being verified as such. This
requirement that the proper purpose of each outlay be ―verifiable‖ is a common-
sense requirement. With the huge number of outlays that Members‘ campaigns
typically make, often on a nearly continuous basis, the propriety of particular
outlays may not be subject to review for months or years after the fact, when
recollections as to the circumstances or specific purposes of an outlay may well have
faded. Absent a requirement for verification, the prohibition against converting
campaign funds to personal use would be nullified in substantial part.
Furthermore, the verification requirement should serve to cause Members and their
68
House Comm. on Standards of Official Conduct,
Investigation of Financial Transactions of
Rep. James Weaver with His Campaign Organization
, H. Rep. 99-933, 99
th
Cong., 2d Sess. 13 (1986)
(emphasis in original).
69
Id
.
70
E.g.
, House Comm. on Standards of Official Conduct,
In the Matter of Rep. Richard H.
Stallings
, H. Rep. 100-382, 100
th
Cong., 1
st
Sess. 3-4 (1987); House Comm. on Standards of Official
Conduct,
In the Matter of Rep. Charles G. Rose III
, H. Rep. 100-526, 100
th
Cong., 2d Sess. 23 (1988).
71
Report on H.R. 3660
, 101
st
Cong., 1
st
Sess. (Comm. Print, Comm. on Rules 1989),
reprinted
in
135
Cong. Rec
. 30740, 30751 (1989).
Campaign Activity 165
campaign staffs to exercise caution in spending campaign funds, and to ensure that
no outlay is for an impermissible personal purpose.
Members and their campaign staffs should bear in mind that the verification
requirement imposed by the House rules is separate from, and in addition to,
whatever recordkeeping requirements are imposed by the Federal Election
Commission on federal candidates generally (or, with regard to Members who are
candidates for a state or local office, the requirements imposed by applicable state
or local law).
Application of the House Rules. The Standards Committee has found that
Members violated the House rules on proper use of campaign funds in several
disciplinary cases. One case involved, among other things, transfers from the
Member‘s campaign account that were made to repay personal loans of the Member
and to cover outstanding obligations against his personal checking account.
72
That
case resulted in a censure of the Member by the House.
73
The rule‘s verification requirement was implicated in a Standards Committee
disciplinary case that was completed in the 106
th
Congress.
74
In that case the
Committee determined that a Member had, through his campaign committee,
engaged in significant misconduct by failing to keep records adequate to verify the
legitimacy of the expenditures that had been made by his campaign for meals,
including numerous meals in the Washington, D.C. area, and for private airplane
travel, particularly between Washington and the Member‘s district.
75
According to
the reports that his committee had filed with the FEC, the expenditures for those
purposes were extraordinarily high in number as well as dollar amount,
76
but the
Investigative Subcommittee found that the campaign committee had not made
―even the most minimal effort to document or verify that the expenditures were
related to legitimate campaign activity.‖
77
72
House Comm. on Standards of Official Conduct,
In the Matter of Rep. Charles H. Wilson
,
H. Rep. 96-930, 96
th
Cong., 2d Sess. 5-6, 7-10 (1980).
73
In addition, in the 104
th
Congress an investigative subcommittee of the Standards
Committee adopted a Statement of Alleged Violation against a Member, two counts of which alleged
a misuse of campaign resources, including the use of campaign funds to purchase appliances for the
Member and to pay for cleaning of the Member‘s personal residence. No further action was taken in
the case, however, because as of the time the investigative subcommittee completed its work, the
Member was about to depart the House.
See
H. Rep. 104-876,
supra
note 7.
74
H. Rep. 106-979,
supra
note 4.
75
Id.
at 3G-3H.
76
Id.
at 6-7, 64-79, 170-212.
77
Id.
at 78.
166 HOUSE ETHICS MANUAL
Impermissible personal use of campaign funds can arise in a variety of
circumstances.
Example 16.
A book written by a Member on his legislative agenda
has been published. The Member‘s campaign may not purchase copies
of the book to give as gifts to contributors if the Member would receive
royalties or any other personal benefit from the campaign‘s purchase of
those copies.
78
In this regard, the prohibition is against the use of campaign funds for
personal purposes not only of the Member, but rather of anyone. Thus, in one of the
cases decided by the Standards Committee, a loan made by a Member‘s campaign to
one of the Member‘s congressional employees for the employee‘s personal purposes
was found to violate the rule.
79
In another case, a Member admitted to violating the
rule in that he had authorized the making of loans of his campaign funds to three
individuals (each of whom was an employee of his congressional office, his
campaign, or one of his private businesses) for their personal purposes.
80
In that case, the Member also admitted to violating the rule in certain
expenditures of his campaign funds that were made to, or otherwise benefited,
businesses that were owned and controlled by the Member and members of his
family. They included (1) expenditures for salary and benefits to individuals who
worked for the campaign, when in fact a portion of the compensation that the
campaign paid to them was for services that they rendered those businesses, and (2)
expenditures for the utility expenses of those businesses.
81
With regard to the
improper expenditures for utility expenses, the Member‘s campaign office was
located in a building owned by a corporation that was in turn owned by the Member
and his family, and in which other such businesses had offices. Yet, for a
significant period of time, the Member‘s campaign paid for all of the expenses
incurred by the building‘s tenants for electricity, gas, water, and telephone – rather
than only the pro rata share of the campaign office.
82
78
Regarding purchase of a Member‘s book by his or her campaign committee,
see
FEC
Advisory Opinions 2006-18, 2004-18, and 2001-8.
79
H. Rep. 100-382,
supra
note 70, at
2-3. FECA (2 U.S.C. §439a(b)(1)) is to the same effect,
as it provides that campaign funds may not be converted ―by any person to any personal use.‖
(Emphasis added).
80
House Comm. on Standards of Official Conduct,
In the Matter of Rep. Earl F. Hilliard
, H.
Rep. 107-130, 107
th
Cong., 1
st
Sess. 13-17 (2001).
81
Id.
at 17-25, 58-66.
82
Id.
at 58-66.
Campaign Activity 167
Notwithstanding the variety of circumstances in which impermissible
personal use of campaign funds can arise, questions in this area have arisen most
frequently regarding certain kinds of campaign outlays, specifically –
Borrowing of campaign funds;
Expenditures for travel;
Expenditures for meals; and
Expenditures for the purchase of goods or services, or the rental of property,
from the Member or a member of his or her family.
As detailed below, it is now well established that borrowing of money from
one‘s campaign is a serious violation of the House Rules. As to outlays for travel or
meals – as well as outlays for the acquisition of goods or services from themselves or
their family members – Members must exercise great care, because such outlays by
their nature raise a concern of personal use. The kinds of records that should be
maintained with regard to these kinds of outlays are also addressed below.
Borrowing Campaign Funds Is Impermissible
.
In four cases the Standards
Committee determined that Members had violated the rules on proper use of
campaign funds by borrowing money from his campaign.
83
The Committee has
clearly stated that this practice is impermissible:
The Committee feels that there is no circumstance in which a Member
could borrow from his campaign and satisfy the requirement that the
use of the funds would exclusively and solely benefit the campaign.
Therefore, the Committee takes the firm position that a Member may
not borrow funds from his campaign. The act of borrowing shall be
construed as a violation of [current House Rule 23, clause 6], which
requires that all campaign expenditures must be for a bona fide
campaign expense.
84
In one of these cases, the Member claimed that the withdrawals he had made
from his campaign were repayments of loans he had made to the campaign
previously. The Committee rejected that claim, however, because no loan
agreements had been executed at the time the Member assertedly made the loans to
his campaign, and the reports that the campaign filed with the FEC did not show
the amounts in question as outstanding obligations to the Member.
85
In that case,
83
H. Rep. 99-933,
supra
note 68; H. Rep. 100-382,
supra
note. 70; H. Rep. 100-526,
supra
n.
70; H. Rep. 104-886,
supra
note 7, at 19-20
84
H. Rep. 100-526,
supra
note 70, at 23.
85
Id.
at 24.
168 HOUSE ETHICS MANUAL
the Committee also found a separate violation of the rules in that the Member had
used a certificate of deposit belonging to his campaign as collateral on a personal
loan.
86
In another case, a loan to a Member from his campaign was found to be
improper when its purpose was to enable the Member to purchase an automobile
that the Member intended to use for both personal and campaign purposes in his
district.
87
Another of the loan cases decided by the Standards Committee had been
initiated as a result of a transmittal of information from the FEC. The information
on the Member‘s receipt of personal loans from his campaign had been developed by
the FEC in the course of investigating allegations that his campaign had failed to
report certain disbursements and receipts.
88
In addition, as noted above, in two cases the Committee found a violation of
the rule when a Member‘s campaign funds were used to make loans to other
individuals for personal purposes.
89
In view of the Committee‘s decisions in the above-noted cases, all of which
were publicly announced at the time they were issued, the Committee believes that
all Members are on notice that they may not borrow from their campaigns, and
their campaign funds may not be used to make a loan to anyone for a personal
purpose.
Expenditures for Travel
.
As explained in the preceding section, campaign
funds may be used to pay airfare or similar transportation expenses when the
―primary purpose‖ of the trip is campaign or political in nature. As explained in the
following section, campaign funds also may be used for certain official or officially-
connected travel. However, when the primary purpose of a trip is personal in
nature, the airfare of that trip may not be paid with campaign funds, and must be
paid with personal funds.
90
While each Member has the responsibility to determine
the ―primary purpose‖ of any trip the Member takes, that determination must be
made in a reasonable manner, taking into account all of the activities in which the
Member intends to engage during the course of the trip.
91
86
Id.
at 24-25.
87
H. Rep. 100-382,
supra
note 70, at 3, 4.
88
H. Rep. 104-886,
supra
note 7, at 19-20.
89
H. Rep. 100-382,
supra
note 67; H. Rep. 107-130,
supra
n. 77.
90
See
Chapter 3 on travel.
91
Id
.
Campaign Activity 169
Example 17.
A Member takes his family on a post-election vacation
trip. Even though the trip is made so that the family can rest after the
campaign, campaign funds may not be used to pay any of the trip
expenses.
Example 18.
A Member is taking a one-week trip that has a
recreational purpose, except that during the trip, she will attend a
party fund-raising dinner. Campaign funds may not be used to pay the
airfare for the trip, and may be used solely to pay the additional meal
or lodging expenses (if any) that the Member necessarily incurs in
attending that dinner.
As noted above, a Member‘s campaign must be able to verify that there was a
proper campaign purpose for any trip that is paid for with campaign funds. To this
end, the Standards Committee strongly advises that campaign committees
maintain records that specify the politically related activities in which the Member
(or other trip participants) engaged during each campaign-funded trip (for example,
―attended party meeting at [date/time], attended reception for campaign donors at
[date/time]‖). When campaign outlays for travel are frequent and extensive, the
need to maintain specific, written records is paramount.
92
Members and their campaign staffs should also refer to the provisions of the
FEC ―personal use‖ regulations regarding use of campaign funds for travel, and
should consult with the FEC as well when a proposed outlay for travel expenses
may raise a concern of personal use. The FEC regulations are briefly noted later in
this chapter, and under them, payment of travel expenses is one of the uses for
which the FEC makes determinations on impermissible personal use on a case-by-
case basis. A number of FEC advisory opinions on the permissibility of using
campaign funds to pay travel expenses in various circumstances are noted in the
preceding section of this chapter.
Expenditures for Meals
.
Circumstances in which campaign funds may be
used to pay meal expenses are also addressed in the preceding section of this
chapter. However, use of campaign funds to pay for any meal when the only
individuals present are a Member and the Member‘s personal friends or relatives
inherently raises concerns of conversion of campaign funds to personal use. The
only circumstance in which payment for such a meal with campaign funds may be
permissible is if the other attendees actively work in the Member‘s campaign, and if
the meal is merely incident to a meeting having a clear, specific agenda of campaign
business.
92
In this regard,
see
H. Rep. 106-979,
supra
n. 4, at 3G-3H, 6-7, 64-79, 170-212.
170 HOUSE ETHICS MANUAL
In order to be able to verify that there was a proper campaign purpose for
meal outlays, the Standards Committee strongly advises that campaign committees
maintain records that note both the individuals who were present at each meal, and
the specific campaign or political purpose served by the outlay. When the attendees
include only friends or relatives, and the above-stated requirements for campaign
payment for such a meal are satisfied, the maintenance of specific, written records
is essential. In these circumstances, the records should specifically describe the
campaign agenda of the meal. As with campaign outlays for travel, when the
outlays for meals are frequent and extensive, the need to maintain specific, written
records is paramount.
93
Purchase or Other Acquisition From the Member or a Member of His or Her
Family. At times a Member (or a member of his or her family) has office space or
other property that the person wishes to lease to the Member‘s campaign.
Similarly, at times a family member of a Member wishes to sell certain goods or
services to the Member‘s campaign.
Such a transaction is permissible under the House Rules only if (1) there is a
bona fide campaign need for the goods, services, or space, and (2) the campaign does
not pay more than fair market value in the transaction. Whenever a Member‘s
campaign is considering entering into a transaction with either the Member or one
of his or her family members, it is advisable for the Member to seek a written
advisory opinion on the transaction from the Standards Committee.
If a Member‘s campaign does enter into such a transaction with the Member
or a member of his or her family, the campaign‘s records must include information
that establishes both the campaign‘s need for and actual use of the particular goods,
services or space, and the efforts made to establish fair market value for the
transaction.
In a Standards Committee disciplinary case that was completed in the 107
th
Congress, a Member admitted to violating the prohibition against personal use of
campaign funds in leasing space for his campaign office from a building owned by a
corporation that was in turn owned and controlled by him and his family. In that
case, the Investigative Subcommittee had determined, on the basis of two
appraisals done by professionals that it had engaged, that the rent paid by the
Member‘s campaign for that space was substantially in excess of fair market
value.
94
In addition, as noted above, the Member admitted to a separate violation of
the personal use prohibition in that his campaign had paid not only its own utility
93
Id
.
94
H. Rep. 107-130,
supra
note 80, at 34-58.
Campaign Activity 171
expenses in that building, but also the utility expenses of various family-owned and
controlled businesses that were housed in that building as well.
95
Yet another violation of the personal use prohibition that the Member
admitted to in that case concerned lease payments that his campaign had made for
certain other office space. That space had previously been leased by a business that
was owned in substantial part by the Member and members of his family, and
under that lease, the Member was personally liable for the lease payments. Thus
every lease payment that the campaign made for that space relieved the Member
and his business of their obligation to make that payment. Earlier in the case
claims were made on behalf of the Member that the campaign actually used that
office space during the period that it paid the rent, but no credible evidence
establishing campaign use of the space was produced,
i.e.
, the verification
requirement of the rule was not satisfied.
96
A Member and the Member‘s campaign staff should also review the FEC
regulations on campaign transactions with a candidate or a family member of the
candidate before entering into any such transaction.
97
The FEC regulations also
essentially preclude a Member‘s campaign from paying for use of any space in the
personal residence of the Member or a member of his or her family. The rules
issued by the FEC that define impermissible personal use of campaign funds are
addressed generally in the following section.
The FEC Personal Use Regulations. As noted above, FECA, as amended in
2002 by BCRA, provides that a contribution or donation accepted by a candidate or
the holder of a federal office may not be ―converted by any person to any personal
use.‖ 2 U.S.C. § 439a(b)(1). Congress codified for the most part the FEC‘s
previously issued regulations on personal use and retained the ban on personal use
of campaign funds. Since BCRA‘s passage, the FEC has published new regulations
that, like their predecessor regulations, both (1) provide a general definition of the
term ―personal use‖ and (2) determine that certain uses of campaign funds
constitute personal use and hence are prohibited.
The general definition in the regulations provides that an impermissible
―personal use‖ of campaign funds is use to pay an expense of any person that would
be incurred even in the absence of the candidacy for office:
95
Id.
at 58-66.
96
Id.
at 25-34.
97
11 C.F.R. § 113.1(g)(1)(i)(E), (H); regarding the hiring of a Member‘s relative as a
consultant to the Member‘s campaign committee,
see
FEC Advisory Opinion 2001-10.
172 HOUSE ETHICS MANUAL
Personal use
means any use of funds in a campaign account of a
present or former candidate to fulfill a commitment, obligation or
expense of any person that would exist irrespective of the candidate‘s
campaign . . . . [11 C.F.R. § 113.1(g).]
Among the particular uses of campaign funds that are specified in the FEC
regulations as constituting an impermissible personal use are payments for the
following:
Household food items or supplies, or clothing;
Mortgage, rent or utility payments for any part of any personal residence of
the candidate or a family member;
Admission to a sporting event, concert, theater or other form of
entertainment, unless part of a specific campaign activity;
Dues, fees or gratuities at a country club, health club, recreational facility or
other non-political organization, unless part of the costs of a specific
fundraising event; and
Tuition payments, other than for the training of campaign staff.
98
11 C.F.R. § 113.1(g)(1)(i). In addition, payments to the candidate or to a
member of the candidate‘s family for real or personal property owned by any of
those individuals, or for bona fide services to the campaign, constitute
impermissible personal use of campaign funds to the extent the payments are in an
amount that exceeds fair market value.
Id.
, § 113.1(g)(1)(i)(E)(2), (H).
As noted previously, the donation of campaign funds to charitable and similar
organizations is generally permissible under FECA. However, the FEC personal
use regulations prohibit a donation to such an organization if the Member making
the donation ―receives compensation from the organization before the organization
has expended the entire amount donated for purposes unrelated to his or her
personal benefit.‖
Id.
§ 113.1(g)(2).
As to other possible uses of campaign funds – including for meal expenses,
travel expenses, vehicle expenses, and legal expenses – the FEC regulations provide
that the Commission will make a determination as to personal use on a ―case by
case basis.‖
Id.
§ 113.1(g)(1)(ii). The regulations also address two ―mixed use‖
situations:
98
However, in Advisory Opinion 1997-11, the FEC approved of a Member‘s proposed use of
campaign funds to cover the costs of a Spanish immersion class that she wished to take for the
purpose of enabling her to better communicate with her constituents. The Member had represented
that her district includes a large number of constituents who spoke little or no English.
Campaign Activity 173
Campaign-funded travel that includes both campaign-related activities and
personal activities; and
Use of a campaign vehicle for personal purposes in an amount that is more
than
de minimis
.
In both of those situations, the person(s) benefiting from the personal use
must reimburse the campaign in an appropriate amount within 30 days.
Id.
§ 113.1(g)(1)(ii)(C), (D). (Regarding use of a campaign vehicle for non-campaign
purposes,
see
below.)
Any questions on these rules should be directed to the FEC. In addition, as
noted above, the FEC will provide a written advisory opinion in response to a
specific, written advisory opinion request on an activity that the requesting person
is undertaking or plans to undertake. 11 C.F.R. pt. 112. Both advisory opinion
requests to the FEC and the opinions themselves are matters of public record.
In summary, under House rules, except for certain permitted official uses
discussed in the following section, campaign funds are to be used for bona fide
campaign or political purposes only. Campaign funds are not to be used to enhance
a Member‘s lifestyle, or to pay a Member‘s personal obligations. Members have
wide discretion in determining what constitutes a bona fide campaign or political
purpose to which campaign funds and resources may be devoted, but Members have
no discretion whatsoever to convert campaign funds to personal use. Furthermore,
House rules require that Members be able to verify that campaign funds have not
been used for personal purposes.
Use of Campaign Funds or Resources for Official House Purposes
In addition to prohibiting the use of campaign funds and resources for
personal purposes, House rules generally restrict their use for official House
purposes. As discussed below, the use of campaign funds is specifically prohibited
for certain types of official expenses. However, federal law and House rules permit
the use of campaign funds in certain circumstances for other official House
purposes, which are detailed below. In addition, there are certain activities that a
Member may, at his or her discretion, designate as either official or political. When
the Member designates an activity as political, the Member may, subject to certain
requirements, pay for the activity with campaign funds, but may not use any official
funds. When the Member designates an activity as official, the Member may
support the event with campaign funds subject to the limitations below.
Restrictions on Official Use of Campaign Funds. Since 1977 the House rules
have prohibited Members from maintaining an ―unofficial office account,‖ or having
such an account maintained for their use. This prohibition is now set forth in
174 HOUSE ETHICS MANUAL
House Rule 24, clause 1. The purpose of the 1977 amendments was to create a
―wall‖ between campaign funds and official allowances, with ―campaign funds used
only for politically related expenses on one side, and official allowances used only for
official purposes on the other.‖
99
The prohibition against using campaign funds for
official purposes was enacted into statutory law in 1990, and is found at 2 U.S.C.
§ 59e(d).
In 2003, § 59e(d) was amended to narrow the prohibition on the use of
campaign funds for official purposes to certain categories of expenses. Section
59e(d) now provides that no Member of the House ―may maintain or use, directly or
indirectly, an unofficial office account or defray official expenses for franked mail,
employee salaries, office space, furniture, or equipment and any associated
information technology services (excluding handheld communication devices)‖
from –
(1) funds received from a political committee or derived from a
contribution or expenditure (as such terms are defined in [the Federal
Election Campaign Act]);
(2) funds received as reimbursement for expenses incurred by
the Senator or Member in connection with personal services provided
by the Senator or Member to the person making the reimbursement; or
(3) any other funds that are not specifically appropriated for
official expenses. [Emphasis added.]
Clause 1 of House Rule 24 was amended at the beginning of the 109
th
Congress to
conform to current law. The effect of these changes, as described more fully below,
was to allow the use of campaign funds for official purposes in certain
circumstances to eliminate some inconveniences to Members under the previous
rules. The following is a description of the congressional expenses that may be paid
with funds of the Member‘s principal campaign committee.
Expenses of a Motor Vehicle That Is Used for Official House Travel. It is
permissible for a Member to lease or purchase a motor vehicle with campaign funds
and to use that vehicle on an unlimited basis for travel for
both
campaign
and
official House purposes. Campaign funds may also be used to pay the expenses
incurred in operating the vehicle, such as insurance, maintenance and repair,
registration fees, and any property tax.
99
House Comm‘n on Admin. Review,
Financial Ethics
, H. Doc. 95-73, 95
th
Cong., 1
st
Sess. 17,
18 (1977).
Campaign Activity 175
However, when a vehicle that is paid for with campaign funds is used for
personal purposes –
i.e.,
for driving to and from one‘s official or campaign office – it
is necessary to reimburse the Member‘s campaign committee in an appropriate
amount with personal funds. Members should consult with the FEC on how the
amount of reimbursement should be determined. FEC regulations provide that
reimbursement should be made within 30 days of the personal use, and thus it
appears that reimbursement for regular personal use must be made on a monthly
basis.
Example 19.
A Member has three events scheduled in his district in
one day. The first and last are political events, and the second is an
official event. He may use the car leased by his campaign to travel to
all three events.
Example 20.
A Member wishes to use a vehicle leased by the
campaign for regular commuting –
i.e.,
for driving to or from the
Member‘s official or campaign office. Such use would be a permissible
use for which reimbursement must be made from the Member‘s
personal funds.
Expenses of a Cell Phone or BlackBerry That Is Used for Official House
Business. It is permissible for a Member to acquire a ―handheld communications
device‖ (
e.g.
, a cell phone, a BlackBerry, or a combination cell phone/BlackBerry
device, and associated communications services) with campaign funds, and to use
the device on an unlimited basis on both campaign matters and official House
matters. Members should contact the Committee on House Administration for
information on connecting any handheld communications device to the House
infrastructure.
These amendments discussed above did not change the general restrictions
on engaging in campaign or political activity in House rooms or offices, or the rules
that generally prohibit using congressional office resources for campaign or political
purposes. In particular, Members and staff should be aware of the following:
A Member or staff person may not use a campaign-funded communications
device to download data or information residing in the House infrastructure
(
e.g.
, a correspondence management service (CMS) database, the global
address book, or a Listserv database) and then use that data or information
for campaign purposes;
Even though a cellphone or BlackBerry is paid for with campaign funds, it
may not be used to make or answer campaign-related calls, or to send or
respond to e-mails on campaign matters, while the user is in a House room or
office;
176 HOUSE ETHICS MANUAL
Criminal law (18 U.S.C. § 607) prohibits soliciting campaign contributions in
federal rooms and buildings and, thus, Members and staff are prohibited
from using one of these devices to solicit a campaign contribution while in the
Capitol, a House office building, or a district office; and
Although it is permissible to use a campaign-funded BlackBerry to send or
respond to campaign or political e-mails when the user is not in a House room
or office, the use of one‘s office desktop computer (including one‘s
―mail.house.gov‖ e-mail address) to send or receive such communications
continues to be prohibited.
Expenses of Official or Officially-Related Travel. A Member may use
campaign funds to pay official or officially-related travel expenses. This authority is
especially useful for travel that is official in nature, but the expenses of which may
not be payable from official allowances (including those for a congressional office job
applicant, an unpaid congressional office intern while on official business, and a
speaker or guest at an official House event). It is also permissible to use campaign
funds for travel expenses associated with a proper officially-connected trip when the
sponsor is not able to cover all of the expenses.
Expenses in Connection With Official House Events.
In a Committee
Advisory memoranda of May 8, 2002, the Committee announced a policy allowing
Members to use funds of their principal campaign committee to pay for food and
beverage expenses at official House events, such as town hall meetings, briefings,
caucus events, conferences, and other events sponsored by their Member office,
whether in their congressional district or on Capitol Hill. The amendment to House
Rule 24 in the 109
th
Congress affirmed this previous Committee guidance on food
and beverage expenses, and also permits Members to pay certain other expenses of
such an event with campaign funds, such as room rental, rental of a sound system,
and as noted above, the travel expenses of a guest speaker or other participant.
Gifts for Foreign Dignitaries
.
It is permissible for a Member to use campaign
funds to purchase a gift for a visiting foreign government official as a mark of
courtesy.
Cautionary Points.
Several points should be kept in mind in considering
whether to use campaign funds to pay for congressional expenses:
The only campaign funds that a Member may use to pay for congressional
expenses are funds of his or her principal campaign committee – not the
funds of a leadership PAC or a multicandidate committee.
There has been no change in the rules insofar as they generally prohibit other
private organizations or individuals from subsidizing any congressional office
or activity, whether on a cash or an in-kind basis.
Congressional Member Organizations (―CMOs‖) are official House entities
that have no independent funding, and campaign funds may not be used to
Campaign Activity 177
provide funding for, or otherwise directly support such organizations (other
than food and beverage expenses at meetings). However, Member or staff
involvement in CMOs may be supported with the use of campaign funds,
subject to the limitations above (
e.g.
, a campaign-paid cell phone may be used
to make CMO-related phone calls). Similarly, campaign funds may not be
used to directly subsidize the expenses of a House committee.
Neither a Member nor anyone working on his or her behalf may either solicit
campaign contributions for the payment of congressional expenses or accept
campaign contributions that are in any way earmarked for the payment of
such expenses.
While it appears that the use of campaign funds as described here is
permissible under FECA, Members should nevertheless consult with the FEC
on any questions that arise under FECA, including any questions on how
payment of any congressional expense is to be disclosed on the reports that a
Member‘s campaign committee files with the FEC.
Congressional Expenses That
May Not
Be Paid With Campaign Funds.
House Rule 24 sets forth five categories of congressional expenses that may not be
paid using campaign funds. They are: office space, furniture, equipment and
associated information technology services (except for handheld communication
devices), mail or other communications, and compensation for services. As a
general matter, expenses in these categories must be paid with official House funds
under regulations issued by the Committee on House Administration. The first
three of these categories are generally self-explanatory, while the other two require
further explanation.
Use of campaign funds to pay any expenses of congressional mail is
prohibited. While the prohibition against use of campaign funds clearly applies to
payment of the expenses of franked mail, the rules also prohibit a Member from
using campaign funds to pay the expenses of preparing or sending any non-franked
mail from his or her congressional office.
100
As a general matter, the forms of congressional ―communications‖ that may
not be paid with campaign funds are those set out in the regulations issued by the
Committee on House Administration on use of official allowances to pay for
100
In addition to the limitation in House Rule 24, clause 1, the use of campaign funds (or
other non-appropriated funds) to pay official mailing expenses is specifically prohibited by certain
other provisions of statutory law and the House Rules. One of these, 2 U.S.C. §59e(c), requires that
official mail expenses be paid only from funds specifically appropriated for that purpose and
precludes their supplementation by funds from any other source, public or private. Under other
provisions, a mass mailing may not be sent under the frank unless the cost of preparing and printing
the mailing are paid exclusively from appropriated funds.
See
39 U.S.C. § 3210(f); House Rule 24,
clause 6.
178 HOUSE ETHICS MANUAL
communications (
e.g.
, advertisements of a town meeting or other House events, the
congressional office website, official stationery, and official audio and video
recordings and materials).
As noted above, the limitation on the use of campaign funds extends to goods
and services that are acquired with campaign funds. In the context of
communications, the Standards Committee has long advised that no brochures or
any other materials printed using campaign funds may include the address or
telephone number of the congressional office.
Example 21.
A Member‘s office begins to receive a large amount of
mail on a legislative issue that is before the House, and the Member
wants the letters to be answered promptly. The Member may not refer
any of the letters to his campaign staff for response. The only
communications that a congressional office may refer to the campaign
staff are those relating to the campaign.
With regard to websites, the Standards Committee has advised as follows:
A Member‘s campaign website may not include a link to the congressional
office site; and
A congressional office site may not be advertised on the Member‘s campaign
website or on materials issued by the Member‘s campaign.
The rules issued by the Committee on House Administration regarding
official Member and committee websites are summarized above. Those rules
include prohibitions against those sites linking or referring to any site created or
operated by a campaign or campaign-related entity.
A Member may not use campaign funds to pay any compensation for the
performance of official duties or for services to his or her congressional office. Thus,
for example, a Member may not use campaign funds to pay an individual to assist
the Member in the performance of his or her official duties, even if the work was
performed outside the congressional office.
Activities That May Be Either ―Official‖ or ―Political‖ at the Member‘s
Option. While, as described above, Members are restricted in using campaign funds
to pay official House expenses, there are a number of activities that may be either
―official‖ or ―political‖ at the Member‘s option. The major examples are events
sponsored by a Member on legislative or other governmental topics, such as town
hall meetings and conferences; statements or releases issued by a Member on a
legislative or other governmental issue; and activities relating to a race for a House
leadership office. However, the Standards Committee has stated:
Campaign Activity 179
[O]nce the Member makes his determination [on whether an activity is
to be official or political], he is bound by it. A single event cannot, for
purposes of the House rules, be treated as
both
political and official.
This rule was originally enunciated by the Standards Committee in
Advisory
Opinion No. 6
, which was issued on September 14, 1982 and is reprinted in updated
form in the appendices. That opinion addressed a Member‘s inquiry on whether he
could use campaign funds to promote a town meeting in areas added to his district
by reapportionment after his congressional office had mailed notice of the meeting
to his current district under the frank. The Committee advised the Member that he
could not do so. The Member could have designated the event as a political
(campaign) one or as an official (representative) one. By sending announcements of
the meeting under the frank, which can be used only in the conduct of official
business, the Member defined the event as an official one. Accordingly, the Member
was prohibited from subsequently using campaign funds (or any other private
funds) to advertise or to conduct the meeting.
Conversely, if a Member designates an event (or any other activity) as
political by using campaign funds for it, no official resources may then be used.
This means that congressional staff should not make arrangements for such an
event, invitations to it may not go out under the frank, and the congressional
telephone number may not be designated for RSVPs.
Of course, in using official House funds or, alternatively, campaign funds, to
pay the expenses of any such activity, a Member must comply with any
requirements or restrictions imposed by, respectively, the Committee on House
Administration and the Franking Commission, or the Federal Election Commission.
Other Applicable Laws, Rules, and Standards of Conduct
Laws and Rules on Campaign Letterhead
Letterhead and envelopes that a Member uses for campaign or political
purposes, including the solicitation of funds, are subject to at least three
authorities.
First, the ―facsimile rule,‖ which is set forth in House Rule 23, clause 11
prohibits a Member from –
authoriz[ing] or otherwise allow[ing] an individual, group, or
organization not under the direction and control of the House to use
the words ‗Congress of the United States,‘ ‗House of Representatives,‘
180 HOUSE ETHICS MANUAL
or ‗Official Business,‘ or any combination of words thereof, on any
letterhead or envelope.
A Member‘s campaign committee is a group or organization ―not under the
control and direction of the House‖ and hence is subject to the restrictions of this
rule,
i.e.
, the letterheads and envelopes that a Member uses for campaign or
political purposes may not include the institutional names cited in the rule or
otherwise violate the provisions of the rule. Since it is reasonable to expect,
however, that campaign letterhead and envelopes adequately describe the office for
which the candidate is running, institutional names may be used if clearly in that
context. In other words, letterhead and envelopes may use phrases such as ―Smith
for Congress,‖ ―Smith for House of Representatives,‖ or ―Reelect Representative
Smith to Congress of the United States.‖ Campaign letterhead and envelopes
should not in other respects (such as font or layout) resemble official stationery.
Second, a provision of the federal criminal code, 18 U.S.C. § 713, prohibits the
use of certain governmental seals on, among other things, stationery, ―for the
purpose of conveying . . . a false impression of sponsorship or approval by the
Government of the United States or by any department, agency, or instrumentality
thereof.‖ As amended in 1997, the statute applies to not only the Great Seal of the
United States, but also the Seal of the House of Representatives and the Seal of the
United States Congress.
Third, the Deceptive Mailings Prevention Act provides that any solicitation
by a nongovernmental entity that reasonably could be interpreted as implying any
federal government connection, approval or endorsement must carry a disclaimer,
both on the internal documents and on the envelope, conspicuously stating that it is
not an official mailing.
101
Among the features that may, under the statute, raise an
implication of governmental approval is the use of a seal or insignia, or citation to a
federal statute or the name of a federal program. In addition, such a solicitation
may not include a false representation stating or implying that federal government
benefits or services will be affected by any contribution or failure to contribute.
In summary, a letter sent by a Member on behalf of either the Member‘s
campaign or another political organization may not have, in the letterhead or on the
envelope, either –
The institutional names ―Congress of the United States‖ or ―House of
Representatives,‖ unless clearly in the context describing the office for which
the candidate is running, as discussed above;
The term ―Official Business;‖ or
101
39 U.S.C. § 3001(h), (i).
Campaign Activity 181
Any likeness of any official seal, including the Seal of the United States, or
the Seal of the House or the Congress.
Accordingly, such a letter may not be sent on a letterhead that resembles
official stationery, even if the stationery was not printed at government expense
and bears a disclaimer to that effect.
However, the letterhead and envelope of a campaign or political letter may
use –
Personal titles such as ―Member of Congress,‖ ―Representative,‖
―Congressman,‖ or ―Congresswoman;‖
A Member‘s title as a chair or ranking member of a full committee, or as a
member of the House leadership, as those are considered personal titles as
well;
The district served by the Member, and the Member‘s committee
assignments; and
A likeness of the Capitol Dome; the Dome is in the public domain and is
therefore not protected in the same manner as official seals.
At times the Standards Committee receives inquiries regarding the
stationery that is sold in the House stationery store that bears an embossed seal or
―House of Representatives‖ in the letterhead. In accordance with the advice set
forth above, even when that stationery is purchased with the Member‘s personal
funds or with campaign funds, it should not be used to solicit campaign support or
contributions. (However, it is permissible for a Member to use this stationery,
purchased with personal or campaign funds, to send personal thank you notes for
contributions or campaign assistance.)
In certain circumstances, FECA and implementing regulations issued by the
FEC require that letters sent on behalf of a federal campaign include a campaign
disclaimer.
102
Any questions on those rules should be directed to the FEC.
Finally, for reasons set forth above, the letterhead of stationery printed with
campaign funds – and in particular any letterhead used for soliciting contributions
– may not include any address or telephone number of any House office.
102
2 U.S.C. § 441d; 11 C.F.R. § 110.11.
182 HOUSE ETHICS MANUAL
Gift Rule Provisions Applicable to Campaign Activity
Members and staff are fully subject to the provisions of the House gift rule
(House Rule 25, clause 5) while engaging in campaign activity. This includes staff
persons who go to part-time status or Leave Without Pay status for the purpose of
doing campaign work. A full explanation of the gift rule is found in Chapter 2.
Several provisions of the rule apply specifically with regard to campaign and
political activity, and those provisions are noted briefly here.
First, the rule provides that among the gifts that a Member or employee may
accept is a contribution that is lawfully made under the Federal Election Campaign
Act, or a lawful contribution for election to a state or local government office (House
Rule 25, clause 5(a)(3)(B)).
See
the discussion on ―No Link with an Official Action
or Special Access.‖
Second, a Member or employee may accept ―[f]ood, refreshments, lodging,
transportation, and other benefits . . . provided by a political organization . . .
in connection with a fundraising or campaign event sponsored by such
organization.‖ (clause 5(a)(3)(G)(iii)). The political organizations to which this
provision refers are those described in § 527(e) of the Internal Revenue Code, which
encompasses entities organized and operated primarily for the purpose of accepting
contributions or making expenditures for the purpose of influencing the election of
any individual to a public or political office.
In order to qualify as a fundraising event under this provision, the primary
purpose of the event must be to raise campaign funds. Thus, Members and
employees may participate in a golf tournament or attend a show or other event
sponsored by a political organization only if the event is a bona fide fundraising
event. In other words, it would not be permissible to play a round of golf at third
party expense and then for the third party to separately make a donation to a
political organization that is not the event organizer.
This provision allows the acceptance of a ticket to a political fundraising or
campaign event only from the political organization that is sponsoring the event. It
does not allow the acceptance of a ticket from a person that simply donated money
or purchased tickets to the event. However, it is possible that a ticket from someone
other than the sponsoring political organization may be acceptable under one of the
other provisions of the gift rule. For example, a Member or employee may accept a
ticket that has a value of less than $50, provided that the donor is not a registered
lobbyist, foreign agent, or entity that employs or retains such a person, and that the
gift does not exceed the annual, per-source gift limitation of less than $100 (clause
5(a)(1)(B)). Under longstanding policy, a ticket to a political fundraising dinner (as
well as a charity fundraising dinner) is valued at the cost of the dinner, rather than
the face value of the ticket. Thus, depending on the circumstances, it is possible for
Campaign Activity 183
a ticket to a fundraising dinner to be acceptable under the less-than-$50 provision
of the gift rule even though the ticket has a face value of greater than $50.
As more fully described in Chapter 2 on gifts, during the days of the national
political party conventions, a Member may not participate in an event held in the
Member‘s honor paid for by a registered lobbyist or an entity that employs or
retains such a person. House Rule 25, clause 8.
The gift rule also allows Members and staff to accept travel expenses from a
private source to participate in a fact-finding trip or appear for a speaking
engagement. Occasionally a question arises as to whether a Member or staff
person, while on such a trip, may engage in incidental campaign activity, such as
attending a campaign fundraiser. The Standards Committee understands that FEC
rules limit the ability of Members and staff to engage in federal campaign activity
in the course of privately paid travel. Before undertaking such a trip that would
include campaign activity, a Member or staff person should consult with the FEC on
the applicability of those rules.
Member Involvement With an Independent Redistricting Fund
Members are often interested in supporting organizations dedicated to
influencing the redistricting process that can arise out of the once in-a-decade
census. A Member may associate with and raise money for such a fund only in
accordance with the guidance on the solicitation of funds contained in Chapter 10,
on involvement with outside organizations. Because such organizations typically
are neither political organizations under § 527 of the Internal Revenue Code, nor
qualified under § 170(c) of the Code, written Committee authorization to solicit on
behalf of such an organization is generally required.
In addition, the Committee understands that the Bipartisan Campaign Reform
Act imposed certain limitations on the ability of federal officeholders, including House
Members, to solicit on behalf of outside organizations. FEC guidance on the status
under FECA of organizations dedicated to influencing the redistricting process is
currently unclear,
103
and it is therefore advisable for any Member wishing to raise
funds on behalf of such an organization to also contact the FEC.
Other Provisions of the Federal Criminal Code Applicable to Campaign Activity
A number of the provisions of the federal criminal code that apply to
campaign activity are discussed in the preceding sections of this chapter. There are
other provisions of the code that House Members and employees should be aware of
as well. Under those provisions, a Member or employee may not –
103
See
alternate unapproved drafts of FEC Advisory Opinion 2003-38.
See also
FEC
Advisory Opinions 1990-23, 1982-37, and 1982-14.
185
OUTSIDE EMPLOYMENT AND INCOME
Overview
House Members and employees are subject to various laws, rules, and
standards of conduct concerning their outside employment activities. For example,
a key provision of the House Code of Official Conduct (House Rule 23, clause 3)
generally prohibits a Member, officer, or employee from using his or her official
position for personal gain. Another provision (House Rule 25, clause 1(a)(2)) limits
(and in some cases absolutely prohibits) the receipt of honoraria. Furthermore,
provisions of the federal criminal code (18 U.S.C. §§ 203, 205) generally prohibit
Members, officers, and employees from privately representing others before the
federal government. The laws, rules, and standards of conduct applicable to all
House Members and employees are discussed in the first part of this chapter.
Members and certain highly compensated staff (referred to as ―senior staff‖ or
―very senior staff‖) are subject to additional restrictions on the types of paid outside
employment they may engage in, as well as an annual limit on the amount of
earned income they may receive from their outside employment. In addition,
Members and ―senior staff‖ must seek and receive prior Committee approval before
engaging in paid teaching or publishing a book. Furthermore, Members and ―very
senior staff‖ must notify the Committee on Standards of Official Conduct within
three business days after the commencement of any negotiation or agreement for
future employment or compensation with a private entity (House Rule 27, clause 1).
These individuals are also subject to certain post-employment restrictions after they
leave the House (18 U.S.C. § 207(e), (f)). Additional restrictions apply only to
Members themselves. For example, a Member who requests an ―earmark‖ or
limited tax or tariff benefit must certify that neither the Member nor the Member‘s
spouse has a financial interest in the provision being requested. Also addressed are
the rules on voting by Members in matters involving a personal financial interest.
The provisions applicable to Member and highly compensated staff are discussed
later in this chapter. The outside of employment considerations for the spouses of
Members and staff are discussed at the end of this chapter.
Laws, Rules, and Standards of Conduct Governing the Outside
Employment of Members and All Staff
While staff members who are paid below the senior staff rate are not subject
to the specific limitations set out later in this chapter, they are subject to a number
of other restrictions on their outside employment. Those restrictions are
summarized in this section.
186 HOUSE ETHICS MANUAL
The restrictions set out here are also applicable to the outside employment of
Members and senior staff. Thus, when a Member or senior staff person is
considering undertaking outside employment, the individual must ensure that the
employment complies with both the specific limitations and the following
restrictions.
Prohibition Against Use of One‘s Position With the House for Personal Gain
It is fundamental that a Member, officer, or employee of the House may not
use his or her official position for personal gain, including any gain that would
accrue to the individual in the form of compensation for outside employment
activities. A key provision of the House Code of Official Conduct (House Rule 23, cl.
3) provides that a House Member, officer, or employee
may not receive compensation and may not permit compensation to
accrue to his beneficial interest from any source, the receipt of which
would occur by virtue of influence improperly exerted from his position
in Congress.
As noted in the debate preceding adoption of this rule, an individual violates
this provision if he uses ―his political influence, the influence of his position . . . to
make pecuniary gains.‖
1
Members and staff, when considering the applicability of
this provision to any activity they are considering undertaking, must also bear in
mind that under a separate provision of the Code of Official Conduct (House Rule
23, cl. 2), they are required to adhere to the spirit as well as the letter of the Rules
of the House. In any event, the Standards Committee routinely advises Members
and staff to avoid situations in which even an inference might be drawn suggesting
improper conduct.
In addition, the Code of Ethics for Government Service, which applies to
House Members, officers, and employees, provides (at ¶ 5) that a federal official
should never accept ―benefits under circumstances which might be construed by
reasonable persons as influencing the performance‖ of official duties. The
Committee found that this standard was violated, for example, when a Member
persuaded the organizers of a privately held bank to sell him stock while he was
using his congressional position to promote authorization for the establishment of
the bank.
2
The Member also sponsored legislation to remove restrictions on the
development of property in which he had a personal financial interest. Thus, the
Member was found to have wrongly used his official position for personal benefit.
1
114
Cong. Rec.
8807 (Apr. 3, 1968) (statement of Rep. Price).
2
In the Matter of a Complaint Against Rep. Robert L.F. Sikes
, H. Rep. 94-1364, 94
th
Cong.,
2d Sess. 3-4 (1976).
Outside Employment and Income
187
In the same vein, the Code of Ethics for Government Service affirms (in ¶¶ 8
and 10) that ―public office is a public trust,‖ and provides that a federal official
should ―[n]ever use any information coming to him confidentially in the
performance of governmental duties for making private profit.‖
One of the purposes of these rules and standards is to preclude conflicts of
interest. Although the term ―conflict of interest‖ may be subject to various
interpretations in general usage, under federal law and regulation, this term ―is
limited in meaning; it denotes a situation in which an official‘s conduct of his office
conflicts with his private economic affairs.‖
3
The ultimate concern ―is risk of
impairment of impartial judgment, a risk which arises whenever there is a
temptation to serve personal interests.‖
4
These rules and standards are applicable in a wide range of circumstances
relating to outside employment. When there is a potential for a conflict of interest
to arise in connection with one‘s outside employment or other activities, it would be
advisable to consult with the Standards Committee before accepting the position.
For example, a conflict of interest may arise when the prospective outside employer
is an entity with interests before Congress. In no event may a Member, officer, or
employee participate in lobbying or advising on lobbying of either Congress or the
Executive Branch on behalf of any private organization or individual, even on an
uncompensated basis, as that would conflict with a Member‘s general obligation to
the public.
5
Other circumstances that implicate these rules and standards of
conduct are discussed below, regarding receipt of excessive compensation, Member
official activities on matters affecting their personal interests, outside employment
of one‘s spouse, conflict-of-interest concerns for staff members, and seeking future
employment.
With regard to the outside employment of a staff person, it may be possible
for conflict-of-interest concerns to be alleviated through a requirement that the staff
person have no involvement in any matter coming before the congressional office
that would be of interest to his or her outside employer. However, in some
circumstances, such a requirement either is not feasible or would not be sufficient to
satisfy the applicable rules and standards. In those circumstances, there may be no
alternative to the staff person declining or terminating the outside employment.
3
Robert S. Getz,
Congressional Ethics
3 (1967);
see also
Bayless Manning,
Federal Conflict of
Interest Laws
2-5 (1964);
Black‘s Law Dictionary
319 (8
th
ed. 2004).
4
Association of the Bar of the City of New York Special Comm. on Congressional Ethics,
Congress and the Public Trust
39 (1970).
5
The statutory prohibition against representing others before federal agencies is discussed
later in this chapter.
188 HOUSE ETHICS MANUAL
Example 1.
A newly-hired legislative assistant in a Member‘s office
who had worked for a consulting and lobbying firm in Washington
wishes to continue to work for that firm on a part-time basis. His
congressional pay is below the senior staff rate. The federal issues on
which he would work for the firm are different from those for which he
has responsibility in the congressional office, and he would not engage
in any lobbying for the firm. Notwithstanding the proposed limitations
on his work for the firm, he may not accept any part-time employment
with that firm, as it would violate the general principle that Members
and staff are not permitted to lobby Congress.
Example 2.
A Member is considering hiring an individual who is a
professional grant writer to research and handle constituent grant
requests in his district office. The individual would like to continue to
operate her grant-writing business on a part-time basis. Because there
would likely be, at a minimum, an appearance of use of her official
position for personal gain in such circumstances, she must discontinue
her outside business upon accepting employment in the congressional
office.
Example 3.
An outside organization that operates a congressional
internship program offers a congressional staff member part-time
employment as director of that program. Because such a position
would likely require use of contacts and information gained through
the individual‘s employment with the House, the offer must be
declined.
At times a Member or staff person wishes to engage in outside employment
that involves the selling of goods or services. On the basis of the rules and
standards of conduct set out above, a Member should not undertake any outside
employment that would involve the Member personally in the selling or
endorsement of any goods or services. On the same basis, at a minimum, any staff
person who engages in sales may not solicit purchases from either (1) any non-
congressional person with whom the employee came into contact through the
congressional office or who has interests before the congressional office, or (2) any
subordinate staff in his or her congressional office. In addition, in soliciting sales,
House employees may not, directly or indirectly, identify themselves as
congressional staff, refer to their congressional duties, or otherwise make use of
their status as a congressional employee.
The Standards Committee is available to advise Members, officers, and
employees on the applicability of the rules and standards of conduct in other specific
circumstances.
Outside Employment and Income
189
Rules on Receipt of Honoraria
Under House Rules, Members, as well as House officers and employees who
are paid above the ―senior staff‖ rate, are prohibited from receiving any honoraria.
6
An honorarium, as defined in the rules, is ―a payment of money or a thing of value
for an appearance, speech, or article‖ (House Rule 25, cl. 4(b)). The House Rules
further provide that an officer or employee who is paid below the senior rate may
accept an honorarium, unless any one of three circumstances is present:
The subject matter of the speech, article, or appearance is directly related to
the official duties of the individual;
The payment is made because of the status of the individual with the House;
or
The person offering the honorarium has interests that may be substantially
affected by the performance or nonperformance of the official duties of the
individual (House Rule 25, cl. 1(a)(2)).
A comprehensive ban on honoraria was originally enacted as part of the
Ethics Reform Act of 1989 and took effect on January 1, 1991.
7
The reasons for
changing the law on honoraria then in effect – under which Members and staff were
generally free to accept honoraria of up to $2,000 per speech, appearance, or article
– were explained by the Bipartisan Task Force on Ethics Reform as follows:
Significant increases in honoraria income in recent years have
heightened the public perception that honoraria [are] a way for special
interests to try to gain influence or buy access to Members of Congress,
particularly since interest groups most often give honoraria to
Members who serve on committees which have jurisdiction over their
legislative interests.
* * *
There is growing concern that the practice of acceptance of
honoraria by Members, particularly from interest groups with
important stakes in legislation, creates serious conflict of interest
problems and threatens to undermine the institutional integrity of
Congress.
8
6
House Rule 23, cl. 5; House Rule 25, cl. 1(a)(2).
7
Pub. L. 101-194, §§ 601 and 804, 103 Stat. at 1760, 1776-78.
8
House Bipartisan Task Force on Ethics,
Report on H.R. 3660
, 101
st
Cong., 1
st
Sess. 13-14
(Comm. Print, Comm. on Rules 1989),
reprinted in
135
Cong. Rec.
H9253, H9256 (daily ed. Nov. 21,
1989) (hereinafter
―Bipartisan Task Force Report
‖).
190 HOUSE ETHICS MANUAL
In the Ethics Reform Act of 1989, the honoraria ban was both enacted as
statutory law (applicable to the executive branch as well as the legislative branch)
and incorporated into the House Rules.
9
However, in a case brought on behalf of
certain executive branch personnel, the Supreme Court held in 1995 that the
statutory honoraria ban violated the First Amendment rights of those personnel.
10
Subsequently, the U.S. Department of Justice determined that the statutory
prohibition could not be enforced against any federal employee.
11
The provisions of
the House Rules on honoraria were not affected by those actions, however, and thus
House Members, officers, and employees remain subject to those provisions.
12
As noted above, for Members, as well as for officers and employees paid at or
above the senior staff rate, the ban is absolute. It encompasses every appearance,
speech, or article, regardless of its subject matter or relationship to official duties,
and the Standards Committee has no authority to grant waivers under any
circumstances.
13
Through 1998 the honoraria ban was likewise absolute for officers
and employees paid below the senior staff rate. However, at the beginning of the
106
th
Congress in 1999, the honoraria ban was modified for staff paid below the
senior staff rate. Since then, staff members paid below that rate have been allowed
to accept honoraria that, under the criteria specified above, are entirely unrelated to
either their official duties or their position with the House.
14
Example 4.
A teacher‘s union offers a staff member who works on
education issues $2,000 to write an article for the union newsletter on
legislative initiatives to improve the quality of public education. The
employee may write the article, but regardless of her House salary
level, she may not accept any payment.
9
5 U.S.C. app. 4 § 501(b); House Rule 43, cl. 5 (currently numbered as House Rule 23, cl. 5);
House Rule 47, cl. 1(a)(1)(B)) (currently numbered as House Rule 25, cl. 1(a)(2)).
10
United States v. Nat‘l Treasury Employees Union
, 513 U.S. 454, 470 (1995).
11
Legality of Government Honoraria Ban Following U.S. v. National Treasury Employees
Union
, Memorandum from Walter Dellinger, Ass‘t Att‘y Gen., U.S. Department of Justice Office of
Legal Counsel, to Attorney General (Feb. 26, 1996) (available on the Office of Legal Counsel website,
www.usdoj.gov/olc).
12
The Senate rules prohibiting the receipt of honoraria likewise continue in effect for
Members, officers, and employees of the Senate.
13
It should be noted that because the rules define honorarium as a payment ―for an
appearance, speech or article . . .
by a Member
. . .
officer or employee
,‖ the Committee does not
construe the rules to prohibit payments for services rendered before an individual became a Member,
officer, or employee of the House.
See
House Rule 25, cl. 4(b) (emphasis added).
14
For a further explanation of this rules change, see 145
Cong. Rec.
H197-98 (daily ed. Jan.
6, 1999) (statement of Rep. Hansen).
Outside Employment and Income
191
Example 5.
A staff member writes an article on rare butterflies for a
nature magazine. He writes the article in his spare time, using his
home computer. The subject of the article has nothing to do with his
official duties or status, and the magazine has no interests that could
be substantially affected by the performance of his official duties. If
the employee‘s House pay is below the senior staff rate, the
honorarium rules do not prohibit him from accepting an otherwise
permissible payment for the article from the magazine. However, if
his House pay is at or above the senior staff rate, he may not accept
any payment for the article.
Definitions. The Committee defines the terms ―speech,‖ ―appearance,‖ and
―article‖ as follows:
A speech means an address, oration, talk, lecture, or other form of oral
presentation, whether delivered in person, transmitted electronically,
recorded, or broadcast over the media, but does not include teaching in an
established educational program that conforms to teaching criteria
established by the Committee (see section on ―Requirement for Prior
Committee Approval of Compensation for Teaching,‖ below).
An appearance means attendance at a public or private conference,
convention, meeting, social event, or similar gathering, possibly but not
necessarily involving incidental conversation, discussion, or remarks.
An article means a writing that has been or is intended to be published, for
which a payment, if made, would be other than a royalty received from an
established publisher pursuant to usual and customary contractual terms.
The term includes an article that is to be published in the name of another
person (
i.e.
, a ―ghost-written‖ article).
Occasionally House employees are invited to participate in a focus group and
are offered a fee if they agree to participate. When the invitation is extended
because of the individual‘s position with the House – and it must be assumed that
any such invitation that is received in the congressional office is extended on that
basis – the employee may not accept the fee, regardless of the level of his or her
House pay. Participation in the focus group would constitute an appearance for
purposes of the honoraria rules, and acceptance of payment for that appearance
would therefore be prohibited.
The term ―honorarium,‖ as noted above, is defined as a payment of money or
thing of value for an appearance, speech, or article (House Rule 25, cl. 4(b)).
However, explicitly excluded from the definition of this term is ―any actual and
necessary travel expenses incurred by [a] Member . . . officer, or employee (and one
relative)‖ in connection with the appearance, speech, or article ―to the extent that
such expenses are paid or reimbursed by any other person.‖ The rule further
192 HOUSE ETHICS MANUAL
provides that for purposes of the rules, the amount of any honorarium is to be
reduced by the amount of any such expenses to the extent that they have not been
paid or reimbursed by anyone else.
Exclusions. Speaking, appearing, and writing are integral to many jobs.
Most jobs require the employee to ―appear‖ at the work site in order to perform.
The honoraria rules clearly do not preclude outside employment merely because the
employee must show up to do the work. The Committee has determined that the
following types of compensation are not honoraria. However, Members, officers,
and employees who are paid at or above the senior staff rate should bear in mind
that any such compensation that they receive is subject to the outside earned
income limitation discussed later in this chapter.
Compensation for activities when speaking, appearing, or writing is only an
incidental part of the work for which payment is made (
e.g.
, conducting
research) is not an honorarium.
Bona fide awards and gifts generally are not honoraria. If a Member, officer,
or employee is presented with an award, memento, or gift at an event, the
Committee does not consider the object to be an honorarium, unless it is
specifically given in consideration of the speech or appearance. Similarly, an
individual may accept an award for artistic, literary, or oratorical
achievement made on a competitive basis under established criteria. Of
course, either such item must otherwise be acceptable under the gift rule.
Paid engagements to perform or to provide entertainment when the artistic,
musical, or athletic talent of the individual is the reason for the employment,
rather than the person‘s status as a Member or employee of Congress are not
honoraria.
Witness and juror fees by a court or other governmental authority are not
honoraria. However, under a Committee on House Administration rule that
implements statutory law (2 U.S.C. § 130b), a House employee must remit to
the House Finance Office any fee that he or she receives for service as either
a juror in a United States or District of Columbia court or as a witness on
behalf of the United States or the District of Columbia.
Fees to a qualified individual for conducting worship services or religious
ceremonies (but not for delivering speeches or invocations at religious
conventions) are not honoraria.
Payments for works of fiction, poetry, lyrics, or script, when the payment is
not offered because of the author‘s congressional status are not honoraria.
Salary or wages pursuant to an employer‘s usual employee compensation
plan when paid by the employer for services on a continuing basis that
involve appearing, speaking, or writing are not honoraria. Any Member,
officer, or employee considering entering into such an arrangement should
Outside Employment and Income
193
first contact the Standards Committee for guidance. This exclusion does not
apply to any arrangement with an agent, speakers bureau, or similar entity
that facilitates appearances or speaking or writing opportunities.
Thus, not all jobs that involve speaking, appearing, or writing are barred.
Conducting religious ceremonies plainly involves speaking, yet qualified Members
and staff may still accept compensation for these services. The fact that a speech is
made before a religious group or at a religious convention, however, will not suffice
to remove it from the ban. Similarly, a Member may not accept a fee merely for
offering an invocation at the beginning of an event.
Writers, too, may continue to ply their craft in many ways. If the writing is
not for publication, or the writing is an incidental part of a job, payment may still be
permitted. Congressional authors of fiction, poetry, lyrics, or scripts may accept
compensation.
Prior to 1999, House Members and staff were, in certain circumstances,
allowed to accept a stipend, defined as payment for a series of at least three
appearances, speeches, or articles. Under the rules then in effect, such a payment
was acceptable unless either the subject matter of the appearances, speeches, or
articles was directly related to the individual‘s official duties, or the payment was
made because of his or her status with the House.
15
However, an amendment to the
House Rules adopted at the beginning of the 106
th
Congress abolished the exclusion
for such ―stipends.‖ That amendment expanded the definition of the term
―honorarium‖ in the rules to include any payment for any ―series of appearances,
speeches, or articles‖ (House Rule 25, cl. 4(b)).
Example 6.
A staff member has an outside part-time job with a local
university, the duties of which include research and analysis on
subjects unrelated to her official duties. In order to inform her faculty
supervisor of her findings, she must write them up. Since the writing
is incidental to her primary responsibilities, her acceptance of
compensation for her services is not prohibited by the honoraria rules.
Example 7.
A staff member was a music major in college and is an
accomplished violinist. He is occasionally invited to play with the local
symphony orchestra at evening and weekend concerts and is
compensated at the same rate as other musicians of his caliber in the
community. Provided that he is hired based on his talent and not his
status as a congressional employee, his acceptance of compensation for
these performances is not prohibited by the honoraria rules.
15
See
5 U.S.C. app. 4 § 505(3), as amended by the Legislative Branch Appropriations Act,
1992, § 314(b), 105 Stat. 447, 469 (1991).
194 HOUSE ETHICS MANUAL
Example 8.
A staff member works part-time in evenings and on
weekends playing the piano. In the course of lobbying her on some
legislation, a lobbyist learns of her avocation and, without knowing
anything about her musical abilities, offers to hire her to play at his
firm‘s Christmas party. He offers to pay her twice the going rate for
such an engagement. The staff member must decline the offer.
Example 9.
A staff member writes a fictional story that is published
by a children‘s magazine. Since it is a work of fiction, his acceptance of
payment for the article is not prohibited by the honoraria rules.
Example 10.
A Member who is a retired professional athlete is invited
to appear at a sports-related event to sign autographs. The contract
provides that he must sign 500 autographs and for doing so will be
paid a fee of $2,000. Because the payment is explicitly based on the
number of autographs to be signed, the Member‘s acceptance of the fee
is not prohibited by the honorarium rules.
Example 11.
A philatelic magazine requests that a staff member who
is paid at the senior staff rate write a series of articles on stamp
collecting. Even though stamp collecting is unrelated to the staff
member‘s official duties and status, and the magazine has no interests
that could be affected by her performance of her official duties, the
staff member may not, under the current honoraria rules, accept the
payment for the series, because as senior staff she is subject to the
absolute ban.
Donations to Charity. Under House rules, the sponsor of a speech,
appearance, or article may make a payment in lieu of an honorarium to a charitable
organization on behalf of a Member, officer, or employee (House Rule 25, cl. 1(c)).
The sponsor may make a donation of up to $2,000 per speech, appearance, or article,
as long as the sponsor makes the payment directly to the charitable organization.
Even if the sponsor makes the check payable to the charity, the Member or staff
person may not accept the check and personally forward it to the charity.
The Member or staff person may suggest a particular charitable organization
to receive the donation, within the following limits. The term ―charitable
organization‖ as used in the rule means an organization described in § 170(c) of the
Internal Revenue Code.
16
The individual may not receive any tax benefit from the
16
House Rule 25, cl. 4(e). Section 170(c) defines contributions that are tax deductible. It
includes contributions to the United States; the District of Columbia; any state or possession, or a
political subdivision thereof if made for exclusively public purposes; religious, charitable, scientific,
literary, or educational organizations; and organizations to foster amateur sports competition or for
the prevention of cruelty to children or animals. These organizations may not be operated for profit,
(con‘t next page)
Outside Employment and Income
195
donation. Accordingly, the individual may neither add the donation to income nor
deduct it for income tax purposes (26 U.S.C. § 7701(k)). The charity may not be one
from which the individual or his or her immediate family (parent, sibling, spouse,
child, or dependent relative) derives any financial benefit (House Rule 25, cl. 1(c)).
The Task Force construed this restriction narrowly:
The task force intends that a financial benefit for purposes of
this rule would be a direct benefit to the individual or a family member
that is separate from any general benefit that the institution would
derive. For example, this provision would not prohibit a payment to a
university at which the Member‘s child is a student, or to a health care
facility at which a family member is a patient.
17
Thus, when the Member, staff person, or family member draws a direct
financial benefit (such as a salary) from a particular charity, the Member or staff
person may not designate that charity to receive payments in lieu of honoraria. In
the case of a national or international charity, however, the fact that a family
member works for a local unit would not preclude a Member or staff person from
designating the parent organization. Any remote benefit to the family member from
the donation in that situation would be too indirect to fall within the statute‘s
prohibition.
Example 12.
Member A gives a speech to a trade association in New
Orleans. The Committee approves the association paying the
Member‘s travel, food, and lodging expenses. In connection with the
event, the association sends a check for $2,000 to the Boy Scouts with a
note saying: ―In lieu of an honorarium, Member A has asked us to
make this donation to the Boy Scouts in honor of his speech to our
association.‖ The donation on behalf of the Member is permissible
under the rules.
Example 13.
A Member gives a speech to a political club in Chicago.
The following week, she receives a check for $1,500, payable to her,
with a note from the club saying: ―Thank you for addressing our club.
We do not know which charities you support, so we are sending you
this check, knowing that you will pass it along to some worthy
organization.‖ The Member may not accept the check, even if she
nor may they attempt to influence legislation or participate in political campaigns for public office.
26 U.S.C. § 170(c). Since an organization‘s tax status is determined by the Internal Revenue Service,
a Member or staff person who wishes to designate a particular organization to receive payments in
lieu of honoraria should verify with the organization that the IRS has granted it tax deductible
status under § 170(c).
17
Bipartisan Task Force Report
,
supra
note 8, at 15, 135
Cong. Rec.
at H9257.
196 HOUSE ETHICS MANUAL
intends to endorse it over to a charity immediately. She must return
the check to the club. If she wishes, she may suggest that the club
donate the money to a specific charity of her choice or to any charity of
the club‘s choice that is qualified under § 170(c) of the tax code.
Example 14.
A Member gives a speech at an executives‘ roundtable in
Kansas City. In honor of the event, the executives‘ group presents the
Member with a check for $1,000, made out to his favorite charity. He
may not send the check on to the charity. The Member must return
the check to the executives, who may then forward it to the charity
themselves.
Example 15.
A staff member writes an article that is accepted for
publication by a magazine. The magazine normally would pay $500 for
a comparable article and asks the staff member if he would like that
amount to be donated to a charity. His favorite charity is a homeless
shelter in his hometown at which his sister works for pay as a
counselor. Since his sister receives a direct financial benefit from the
shelter (her salary), the staff member may not designate the shelter to
receive the payment from the magazine. He may designate another
charity.
Example 16.
A staff member writes an article that is accepted for
publication by a magazine that offers to donate $500 to the charity of
her choice. The staff member‘s husband is a lab technician at the local
Red Cross blood bank. Nevertheless, she may, if she chooses,
designate the national or international Red Cross to receive the
payment in lieu of honoraria.
At times Members cooperate with or help organize charitable foundations,
which they designate to receive payments in lieu of honoraria and supplement with
independent solicitations. Typically, these foundations attempt to address
particular needs in the Member‘s district (such as scholarship funds) or national
problems of particular concern to the Member. A Member may designate such a
foundation to receive payments in lieu of honoraria if the foundation is qualified
under § 170(c) of the tax code.
Gift Rule Applicability to Compensation and
Other Things of Value Received From an Outside Employer
The House gift rule defines the term ―gift‖ in an extremely broad manner.
18
The rule would be implicated if a Member, officer, or employee were to accept
18
See
House Rule 25, cl. 5(a)(2)(A);
see also
Chapter 2 on gifts.
Outside Employment and Income
197
compensation for outside employment in an amount that exceeds the fair market
value of the services that he or she renders. Among the relevant factors in
determining that value are the specific nature of the services rendered by the
individual, the amount of time that he or she devotes to the outside employment,
the amount of compensation customarily paid for such services, and the individual‘s
qualifications to render the particular services.
In addition, a specific provision of the gift rule addresses the acceptability of
―[f]ood, refreshments, lodging, transportation, and other benefits‖ that result from
the outside business or employment activities of a Member, officer, or employee
(House Rule 25, cl. 5(a)(G)(i)). Under that provision, such a benefit is acceptable
only if two requirements are satisfied: (1) The benefit has not been offered or
enhanced because of the official position of the Member or staff person, and (2) it is
one that is ―customarily provided to others in similar circumstances.‖
Prohibition Against Use of Congressional Office Resources
Pursuant to federal statute (18 U.S.C. § 1301(a)), official funds may be used
only for the purposes appropriated. Thus, House resources acquired with such
funds – including the office telephones, computers fax machines and other
equipment, office supplies, office space, and staff while on official time – are to be
used for the conduct of official House business. Those resources may not be used to
perform or in furtherance of any outside employment of any Member, officer, or
employee. A provision of the rules issued by the House Administration Committee
allows minor, incidental personal use of House equipment and supplies. However,
the Standards Committee understands that this provision allows such use of those
resources for personal purposes only, and does not allow their use for outside
employment or business purposes.
Practice of Law
Although the paid practice of law by Members and senior staff has been
severely curtailed since 1991, those individuals generally may still practice without
compensation, and non-senior employees may practice for compensation, within the
following parameters.
No public official should take on a private obligation that conflicts with the
individual‘s primary duty to serve the public interest. The lawyer‘s duty of
undivided loyalty to clients
19
makes the practice of law particularly susceptible to
conflicts with the wide-ranging responsibilities of Members and staff.
19
See, e.g.
, ABA,
Model Rules of Professional Conduct
, Rule 1.7 (2007).
198 HOUSE ETHICS MANUAL
Congressional lawyers who wish to maintain a private practice should also consult
their local bar associations with respect to professional restrictions on them.
Federal law prohibits Members from practicing in the United States Court of
Federal Claims or the United States Court of Appeals for the Federal Circuit (18
U.S.C. § 204). In addition, Members and employees may not privately represent
others before federal agencies, as described below.
Prohibition Against Representing Others Before Agencies or in
Court Cases in Which the Government Is a Party or Has an Interest
Federal criminal law generally prohibits Members, officers, and employees
from privately representing others before the federal government. One provision
bars these individuals from seeking or receiving compensation (other than as
provided by law) for ―representational services‖ before any federal government
agency, department, court, or officer in any matter or proceeding in which the
United States is a party or has an interest (18 U.S.C. § 203).
A second provision forbids any officer or employee from acting ―as agent or
attorney for anyone‖ (other than in the proper discharge of official duties) before
any federal government entity in any particular matter in which the federal
government has an interest, whether or not the individual is compensated (18
U.S.C. § 205). The individual need not actually be an attorney or have a strict
common law agency relationship with another in order to be restricted by the
statute.
20
While House officers and employees are covered by this provision,
Members are not.
In addition, a provision of the House Rules states that a person ―may not be
an officer or employee of the House, or continue in its employment, if he acts as an
agent for the prosecution of a claim against the Government or if he is interested in
such claim, except as an original claimant or in the proper discharge of official
duties‖ (House Rule 25, cl. 6).
Under 18 U.S.C. § 203, a Member, officer, or employee of the House may not
receive compensation, other than congressional salary, for any dealings with an
administrative agency on behalf of a constituent or any other person or
organization. Even if contacting a federal agency on behalf of a private individual
or organization is within the scope of official duties, an individual who accepts
additional compensation for such services has violated the law.
21
In this sense,
Section 203 supplements the law against illegal gratuities discussed in Chapter 2.
20
United States v. Sweig
, 316 F. Supp. 1148, 1157 (S.D.N.Y. 1970).
21
May v. United States
, 175 F.2d 994, 1005 (D.C. Cir.),
cert. denied
, 338 U.S. 830 (1949).
Outside Employment and Income
199
Section 203 prohibits the receipt of compensation ―directly or indirectly‖ for
services before federal agencies. Therefore, if a Member or staff person, whether
through participation in a partnership arrangement or otherwise, shares in fees
from services rendered before federal agencies, a violation of this provision may
occur even if the individual did not personally perform the services.
22
This same
opinion notes, however, that the Office of Government Ethics has interpreted § 203
not to apply to a person who receives a fixed salary as an employee of a firm (as
opposed to someone who shares in the firm‘s profits), even though some of the firm‘s
overall income may be attributable to service covered by § 203.‖
23
This provision
can apply to a law firm retiree when the retiree‘s pension is based on a percentage
of law firm profits if any of those profits are derived from representation activities
before the federal government.
Both sections 203 and 205 carry the same possible penalties: Imprisonment
for up to one year (or five years if the violation is willful); a civil fine of up to
$50,000 per violation or the amount received or offered for the prohibited conduct
(whichever is greater); or a court order prohibiting the offensive conduct (18 U.S.C.
§ 216). In one case, a federal court held a former Member of Congress liable for
repayment of compensation unlawfully received. The court ruled that a violation of
§ 203
unquestionably demonstrates a breach of trust, for in order to fall
within its prohibition, a member of Congress must shed the duty of
disinterested advocacy owed the government and his constituents in
favor of championing private interests potentially inconsistent with
this charge.
24
Sections 203 and 205 exempt certain activities. Individuals may represent
themselves before the federal government. They may also represent their spouse,
parent, child, or any person for whom they serve as guardian, trustee, or personal
fiduciary (18 U.S.C. §§ 203(d), 205(e)). Even on behalf of these people, however, the
individual must refrain if the matter at issue is one in which he or she participated
personally and substantially on behalf of the government or one that falls within his
22
See
U.S. Office of Government Ethics (―OGE‖) Advisory Opinion 99 x 24 (Dec. 14, 1999);
see also
OGE Advisory Opinion 88 x 3 (Mar. 2, 1988) (same).
23
OGE Advisory Opinion 99 x 24,
supra
note 22;
see also
OGE Advisory Opinion 99 x 25
(Dec. 22, 1999) (permitting federal employee to accept compensation from firm that represented
clients before federal entities where employee‘s compensation was not derived from or contingent on
those services).
24
United States v. Podell
, 436 F. Supp. 1039, 1042 (S.D.N.Y. 1977),
aff‘d,
572 F.2d 31 (2d Cir.
1978);
see also
United States v. Eilberg
, 507 F. Supp. 267, 271 (E.D. Pa. 1980) (stating that the
―purpose of the remedy is . . . to provide a means of enforcing the loyalty of [government] agents‖).
200 HOUSE ETHICS MANUAL
or her official responsibilities. The statutes also provide that a staff person who
wishes to engage in excepted representational activities must have the approval of
his or her employing Member. In addition, one may, without compensation,
represent anyone in a disciplinary or personnel proceeding (18 U.S.C. § 205(d)).
Example 17.
A staff member is a caseworker, and because of his
experience in dealing with federal government agencies, his brother
asks him to represent him in an FCC hearing at which the brother is
contesting the agency‘s denial of his license application. The staff
member must decline, even if he does not receive compensation for his
services.
Example 18.
A staff member‘s parents have a dispute with the Social
Security Administration. The staff member may represent them at
their hearing if her employing Member approves.
Example 19.
A staff member is a tax lawyer. His college roommate
has a dispute with the IRS and asks the staff member to accompany
him and to assist him at the hearing. The staff member may not do so,
even if he receives no compensation.
Example 20.
A Member who is an attorney wishes to represent in
state court, on a
pro bono
(unpaid) basis, union members who were
charged with state law violations while picketing their employer. The
Member‘s uncompensated representation would not violate 18 U.S.C.
§§ 203 or 205.
Contracting With the Federal Government
Paragraph 7 of the Code of Ethics for Government Service cautions all
government officials not to engage in any business with the federal government,
―either directly or indirectly which is inconsistent with the conscientious
performance‖ of governmental duties. To do so would raise the appearance of undue
influence or breach of the public trust.
Under the federal criminal code, a Member of Congress may not enter into a
contract or agreement with the United States government. Any such contract is
deemed void, and both the Member and the officer or employee who makes the
contract on behalf of the federal government may be fined (18 U.S.C. §§ 431, 432).
In addition, public contracting law provides that ―no Member of Congress shall be
Outside Employment and Income
201
admitted to any share or part of any contract or agreement with‖ the United States,
―or to any benefit to arise thereupon‖ (41 U.S.C. § 22).
25
The criminal law precludes Members from ―directly or indirectly‖ holding,
executing, undertaking, or enjoying ―in whole or in part‖ any contract with the
federal government. The Attorney General has interpreted this language to
prohibit a general or limited partnership that includes a Member of Congress from
entering into a contract with the federal government.
26
In addition, it is possible
that a Member of Congress who receives compensation under an independent
organization‘s government contract – for example, compensation in the form of a
salary from the organization, or through a subcontract with it – may be deemed to
be improperly benefiting from that contract.
Unlike a partnership, a corporation with a relationship to a Member of
Congress may enter into a contract with the federal government for the general
benefit of the corporation (18 U.S.C. § 433). Thus, a Member of Congress may be a
stockholder, even a principal stockholder, or an officer of a corporation that holds a
federal government contract without incurring criminal liability.
27
Similarly, the
spouse of a Member may enter into a contract with the federal government.
Incorporating for the obvious purpose of circumventing the statute‘s prohibition,
however, would disqualify an entity from the § 433 exception.
28
It would appear
that the statutory exception in the criminal law for contracts with corporations
would likewise apply to the contract law provision of 41 U.S.C. § 22, since all the
provisions discussed, and the exceptions to them, were originally passed as part of
the same act.
29
25
The criminal statute specifically exempts contracts entered into under the Agricultural
Adjustment Act, the Federal Farm Loan Act, the Farm Credit Act of 1933, the Home Owners Loan
Act of 1933, the Bankhead-Jones Farm Tenant Act, crop insurance agreements, and contracts that
the Secretary of Agriculture enters into with farmers (18 U.S.C. § 433). In addition, contracts under
the Federal Farm Mortgage Corporation Act are exempt from 41 U.S.C. § 22, as are contracts that
the State Department makes in foreign countries (22 U.S.C. § 1472(a)(2)). The public contracting
clause must appear, however, in contracts for the acquisition of land pursuant to flood control laws
(33 U.S.C. § 702m).
26
See
22 Op. Off. Legal Counsel 33 (1988).
But
see
4 Op. Att‘y Gen. 47 (1842) (permitting
company in which Member was a partner to enter sales contract with U.S. Navy, where Member
disclaimed any benefit from the contract).
27
See
39 Op. Att‘y Gen. 165 (1938) (Member held 30% of corporation‘s stock and was
president of company);
see also
33 Op. Att‘y Gen. 44 (1921) (allowing corporations to accept loan from
War Finance Corporation, secured by promissory note of company in which Member was a
stockholder).
28
22 Op. Off. Legal Counsel 33,
supra
note 26.
29
Revised Statutes §§ 3739-3741, 2 Stat. 484, ch. 48 (Apr. 21, 1808).
202 HOUSE ETHICS MANUAL
When a Member or an entity in which a Member has an ownership interest
(other than a publicly held corporation) is considering entering into a contract or
agreement with a federal government agency, the Member should first consult with
the agency on the possible applicability of these statutes. Similarly, a newly elected
Member who has such a contract should immediately consult with the contracting
agency on this point.
While these statutes do not apply to House officers and employees, the
matter of government contracts with federal employees is addressed in the Federal
Acquisition Regulations. The regulations provide that a contract may not
knowingly be awarded to a federal employee (including an officer or employee of the
House), or a firm substantially owned or controlled by one or more federal
employees, except ―if there is a most compelling reason to do so, such as when the
government‘s needs cannot reasonably be otherwise met.‖
30
Example 21.
A federal agency is holding an auction of properties. A
House Member may not purchase anything at the auction because the
contract of sale would be a contract with the government.
Example 22.
A Member is invited to speak at a conference sponsored
by an executive branch agency. Although private sector speakers at
this conference are paid a speaker‘s fee, the Member may not accept
payment. (Note that such a payment also would constitute a
prohibition honorarium).
Comparable prohibitions on the use of Member office and committee funds
are set out in rules issued by the House Administration Committee. The
Member‘s
Handbook
issued by that Committee provides that ―no Member, relative of the
Member, or anyone with whom the Member has a professional or legal relationship
may directly benefit from the expenditure of the MRA [Member‘s Representational
Allowance],‖ unless ―specifically authorized by an applicable provision of federal
law, House Rules, or [House Administration] Committee Regulations.‖ The
Committees‘ Handbook
provides that, subject to the same exception, ―no Member of
the committee, relative of a committee Member, or anyone with whom a committee
Member has a professional or legal relationship may directly benefit from the
expenditure of committee funds.‖ While the application of these rules is within the
jurisdiction of the House Administration Committee, it appears that these rules
preclude a Member or committee from contracting with a staff member for the
acquisition of goods, or of any services outside of the employment context.
30
48 C.F.R. §§ 3.601-3.603.
Outside Employment and Income
203
Dual Federal Government Employment
A provision of the Constitution (Article I, Section 6, clause 2) generally
prohibits Members of the House (as well as the Senate) from holding any other
federal office:
[N]o Person holding any Office under the United States, shall be
a Member of either House during his Continuance in Office.
Decisions of the House and the House Judiciary Committee applying this
provision to particular federal offices and in various circumstances are summarized
in the
House Rules and Manual
issued by the House Parliamentarian.
31
House staff persons are not absolutely prohibited from holding a non-House
federal job, but a provision of statutory law severely restricts their ability to do so.
Under that provision, a House employee may not hold a non-House government job
if the annual pay of the two positions combined exceeds a limitation that is
calculated at the beginning of each year (5 U.S.C. § 5533(c)(1)). In 2007 this
combined limitation was $30,826.
32
A ―position‖ means ―a civilian office or position
(including a temporary, part-time, or intermittent position), appointive or elective,
in the legislative, executive, or judicial branch of the Government‖ (
id.,
§ 5531(2)).
The dual employment bar does not apply when the positions involved are expert or
consultant positions and pay is received on a ―when-actually-employed‖ basis for
different days (
id.,
§ 5533(c)(4)).
The statute further provides that an individual may hold two or more House
jobs, provided that the combined salary does not exceed the maximum annual rate
of pay authorized to be paid out of a Member‘s clerk hire allowance (
id.,
§ 5533(c)(2)).
33
Thus, the law allows House employees to work part-time in a House
office and allows House offices to share an employee, as long as the employee
performs duties for each office that are commensurate with the compensation the
employee receives from that office, and the employee‘s combined House salaries do
not exceed the cap.
31
See, e.g.,
John V. Sullivan, Parliamentarian,
Constitution, Jefferson‘s Manual, and Rules
of the House of Representatives, One Hundred Tenth Congress
, H. Doc. 109-157, 109
th
Cong., 2d
Sess. (2007), §§ 97-101 (hereinafter ―
House Rules and Manual
‖).
32
The cited amount is the $7,724 limit provided by the statute, as adjusted by the House
Chief Administrative Officer in accordance with authority contained in 2 U.S.C. § 60a-2. As of the
printing of this Manual, the 2008 maximum has not been set.
33
The maximum annual rates of pay for various House positions are set each year in the
Speaker‘s Pay Order.
204 HOUSE ETHICS MANUAL
Holding Local Office
At times House employees wish to hold an elected or appointed local
government office. While no statutory provision or House rule absolutely prohibits
a House employee from holding a local office while remaining on the House payroll,
the applicable provisions of state or local law on eligibility for office must be
consulted. In addition, House employees must take care to avoid any undertaking
that is inconsistent with congressional responsibilities.
The holding of a local office by a House employee is subject to all of the
restrictions and limitations on outside employment set out in this chapter. For
employees who are paid at or above the senior staff rate, the limitations include the
outside earned income limitation and all of the ―fiduciary relationship‖ restrictions.
As a result, a senior staff person is generally prohibited from receiving
compensation for service as an elected or appointed government official. In
addition, regardless of their rate of pay, all House employees must adhere to the
prohibition against using any House resources to perform the duties of their local
office, the requirements that those duties be performed outside the congressional
office and on their own time, and the prohibition against representing anyone else –
including the local government by which they are employed – before federal
agencies.
Furthermore, in making public comment on issues or otherwise dealing with
the public, an employee who serves in a local office should always make clear in
which capacity the employee is acting. In addition, the employee is prohibited from
providing any special treatment to constituents in a congressional capacity and
should discourage any suggestion that they will receive preferential treatment from
the employee‘s congressional office.
A staff member considering running for or serving in a local office should first
consult with his or her employing Member on the matter, and should refrain from
doing so if the Member objects. When the demands of the local office are such that
it is impossible as a practical matter for the employee to maintain an absolute
separation of the two positions – or when the employing Member concludes that the
two positions are incompatible – then the employee will have no alternative but to
decline or terminate service in the local office, or to terminate congressional
employment.
The laws, rules, and regulations governing campaign activity are discussed in
detail in Chapter 4 on Campaign Activity. In particular, employees should be
cognizant of restrictions that prohibit performing local elective service or any
campaign activity for local office in House office space (including district offices),
using House resources, or on official time. In addition, both federal statute and
regulations of the House Building Commission prohibit any political solicitation –
Outside Employment and Income
205
including one for local office – from being conducted in a House office space.
34
It is
also unlawful to solicit funds from other federal employees.
35
For a number of reasons – including the full-time nature of the position that
a House Member assumes, and provisions of the laws of various states on eligibility
to hold office – questions regarding the possibility of a Member holding a local office
rarely arise. While the Constitution does not prohibit House Members from
simultaneously holding state or local office, the House has determined that ―a high
state office is incompatible with congressional membership, due to the manifest
inconsistency of the respective duties of the positions.‖
36
Any House Member
considering holding a state or local office should first consult with the Standards
Committee and, when there may be a question of whether the office involved is a
―high state office,‖ the House Parliamentarian.
Prohibition Against Receiving Compensation from a Foreign Government
The Constitution prohibits any Member or employee of the House (as well as
any other federal official) from receiving an ―emolument‖ of ―any kind whatever‖
from a foreign government or a representative of a foreign state, without the
consent of the Congress (Article I, Section 9, clause 8). As the Comptroller General
has noted, ―it seems clear from the wording of the Constitutional provision that the
drafters intended the prohibition to have the broadest possible scope and
applicability.‖
37
Thus, an ―emolument‖ has been defined as any ―profit, gain, or
compensation received for services rendered.‖
38
Although Congress has consented, in the Foreign Gifts and Decorations Act,
to the acceptance by federal officers of certain gifts, no statute grants a general
consent for the receipt of emoluments or other compensation from foreign
governments.
39
The Comptroller General has ruled that transportation or expenses
for travel gratuitously given by a foreign government would fall within regulations
promulgated on the receipt of foreign gifts (see Chapter 2 on gifts). However, if the
travel was offered by a foreign government in return for or in connection with some
34
See
18 U.S.C. § 602
and
House Office Building Comm‘n,
Rules and Regulations Governing
the House Office Buildings, House Garages and the Capitol Power Plant
(Feb. 1999), at ¶ 4
(available from the Speaker‘s Office).
35
See
18 U.S.C. § 602.
36
2
Deschler‘s Precedents of the U.S. House of Representatives
, ch. 7, § 13, at 125.
37
49 Comp. Gen. 819, 821 (1970).
38
As used here, the term ―local government office‖ includes not only offices in a county,
municipal, or town government, but also membership in a state legislative body.
39
5 U.S.C. § 7342.
But see
37 U.S.C. § 908 (consenting to the civilian employment of retired
military and military reserve members by foreign governments, when approved by the relevant
Cabinet Secretaries).
206 HOUSE ETHICS MANUAL
service that a Member or employee would provide, such as making a speech, then
such expenses could be deemed ―compensation‖ and thus be an ―emolument.‖
40
Note
the difference between this Constitutional provision and the honoraria rules: The
honoraria rules generally permit one to accept necessary travel expenses to deliver
a speech; the Constitution, however, prohibits the acceptance of such expenses from
a foreign government.
Members and employees may not therefore receive any payment for services
rendered to official foreign interests, such as ambassadors, embassies, or agencies of
a foreign government.
41
Caution should thus be exercised in accepting expenses or
other compensation from any foreign organization (such as a foundation) that
receives sponsorship, funding, or licensing from a foreign government, because it
could be considered an official arm or an instrumentality of the government. The
Comptroller General has ruled, for example, that a Member of Congress could not
accept a fee from the British Broadcasting Corporation for participation in a
television program to discuss the American Presidency.
42
The BBC, because of its
funding relationship with and regulation by the British government, was considered
an instrumentality of the British government, and thus a ―foreign state‖ under the
constitutional ban.
Regardless of compensation, a public official may not act as an agent or
attorney for either (1) a foreign principal required to register under the Foreign
Agents Registration Act of 1938, as amended, that is, generally, those individuals
engaged in lobbying, political, or propaganda activities,
43
or (2) a lobbyist required to
register under the Lobbying Disclosure Act of 1995 in connection with the
representation of a foreign entity (18 U.S.C. § 219).
Additional Considerations Applicable to Staff Outside Employment
Proper Performance of Congressional Duties. A House staff member who
engages in outside employment may not do so to the neglect of official congressional
duties, nor on ―official time‖ for which he or she is compensated with public funds.
The House Code of Official Conduct specifically provides that a Member ―may not
retain an employee who does not perform duties for the offices of the employing
40
Opinion of the Comptroller General B-180472 (May 9, 1974) (copy on file with the
Standards Committee).
41
See, e.g.
, Memorandum of Walter Dellinger, Ass‘t Att‘y Gen., Office of Legal Counsel,
Dep‘t of Justice, to Gary J. Edles, General Counsel, Administrative Conference of the U.S. (Oct. 28,
1993) (Emoluments Clause prohibits government employees from accepting a law firm partnership
distribution that may include some income received from foreign government clients) (available on
the Office of Legal Counsel website, www.usdoj.gov/olc).
42
Comp. Gen. Op. B-180472,
supra
note 40.
43
See
Foreign Agents Registration Act, 22 U.S.C. §§ 611-621.
Outside Employment and Income
207
authority commensurate with the compensation he receives‖ (House Rule 23, cl. 8).
Additionally, ¶ 3 of the Code of Ethics for Government Service instructs government
employees to ―[g]ive a full day‘s labor for a full day‘s pay.‖ A House employee is
hired and paid from the United States Treasury for the performance of official
duties. Any outside employment that would detract from the performance of, or full
time and attention to, one‘s government job would be contrary to these standards.
When the demands of a staff person‘s outside employment result in a reduction of
the amount of time that he or she devotes to congressional duties, a commensurate
reduction in the individual‘s congressional pay is required.
Conversely, the provisions of the House Rules prohibiting unofficial office
accounts generally preclude Members from accepting privately financed or unpaid
services (as well as other in-kind support) for the performance of official House
business (House Rule 24, cl. 1). Accordingly, a staff person should not perform
congressional duties during time for which the individual is being compensated by a
private outside employer, and should not use any resources of a private outside
employer for the performance of congressional duties. Particularly where a staff
person devotes a significant amount of time to outside employment, or engages in
outside employment activities during the regular business day, he or she should
keep careful time records for both positions in order to be able to demonstrate
compliance with the applicable rules.
In addition, because a staff person‘s specific duties and terms of employment
are within the discretion of his or her employing Member, the Member‘s perspective
on a staff person‘s outside employment – and particularly whether any specific
outside employment may impair the individual‘s ability to perform his or her
congressional duties or would otherwise be inappropriate – is most important. For
that reason, a staff person should consult with his or her employing Member or
supervisor before undertaking any outside employment.
The considerations applicable to the performance of campaign work by House
staff are detailed in Chapter 4 of this Manual.
Outside Employment of Professional Committee Staff. A provision of the
House Rules states that the professional staff members of each standing committee
―may not engage in any work other than committee business during congressional
working hours‖ (House Rule 10, cl. 9(b)(1)(A)). The legislative history of the
provision states that its intent is to confirm that the House Rules on professional
committee staff ―[do] not prohibit such staff from outside employment on their own
time.‖
44
44
Bipartisan Task Force Report
,
supra
note 8, at 34, 135
Cong. Rec.
H9262.
208 HOUSE ETHICS MANUAL
Staff Who File Financial Disclosure Statements. A provision of the House
Code of Official Conduct that was added by the Ethics Reform Act of 1989 restricts
the official activities of employees who file financial disclosure forms (House Rule
23, cl. 12). These staff persons may not contact other government agencies with
respect to non-legislative matters affecting their own significant financial interests.
An employing Member may waive this disqualification by notifying the Standards
Committee, in writing, that the Member is aware of the employee‘s financial
interest, but deems this person‘s participation in the matter to be necessary.
Example 23.
Staff person A, who is the banking expert on a Member‘s
staff, is part owner of a bank in the Member‘s district. A new banking
regulation will adversely affect all the banks in that district, and the
Member wishes A to contact the banking regulators on his behalf to
urge reconsideration. The Member writes to the Standards Committee
stating: ―I authorize my staff member, A, to contact banking
authorities concerning Regulation 123. I understand that A, as part
owner of Central Bank, may benefit if the Regulation is withdrawn.
Nonetheless, I waive the application of House Rule 23, clause (12)(a)
because A‘s expertise in this area makes her participation necessary.‖
Upon receipt of the Member‘s letter by the Committee, A is free to
contact the agency.
Negotiating for Future Employment
The Committee‘s general guidance regarding negotiating for non-
congressional employment is that House Members and employees are free to pursue
future employment while still employed by the House, subject to certain ethical
constraints. However, House Rule 27, which was enacted during the 110
th
Congress,
45
established an additional restriction for House Members. Pursuant to
House Rule 27, clause 1, a Member may not ―directly negotiate or have any
agreement of future employment until after his or her successor has been elected‖
unless
the Member discloses those negotiations as required by the rule. House Rule
27 also requires officers, very senior staff, and those Members who are subject to
the rule to disclose to the Standards Committee any job negotiations made with a
private employer while the individual is still employed by the House, as well as any
recusal from official matters that is necessitated by those negotiations.
The term ―negotiation‖ is not defined in the legislation or House rule. In its
past guidance, the Committee has given deference to court decisions interpreting a
related federal criminal statute. That statute (18 U.S.C. § 208) bars executive
branch employees from participating in matters affecting the financial interests of
45
House Rule 27 was created by the Honest Leadership and Open Government Act of 2007
(―HLOGA‖), Pub. L. 110-81, § 105, 121 Stat. 735, 741 (Sept. 14, 2007).
Outside Employment and Income
209
an entity with which the employee is ―negotiating or has any arrangement‖
concerning future employment. Those decisions found that the term ―negotiation‖
should be construed broadly.
46
However, the Committee makes a distinction
between ―negotiations,‖ which trigger the rule, and ―[p]reliminary or exploratory
talks,‖ which do not. ―Negotiations‖ connotes ―a communication between two
parties with a view toward reaching an agreement‖ and in which there is ―active
interest on both sides.‖
47
Thus, merely sending a copy of one‘s résumé to a private
entity is not considered ―negotiating‖ for future employment.
The general guidance applicable to all Members and House employees –
regardless of salary level – who wish to engage in negotiations for future
employment is as follows. First and foremost, a Member or House employee may
not permit the prospect of future employment to influence the official actions of the
Member or employee, or the employing office of the employee. Some Members and
employees may determine to use an agent (a ―headhunter‖) to solicit job offers on
their behalf in order to avoid any appearance of improper activity. Regardless of
whether job negotiations are undertaken personally or through an agent, the
following generally applicable principles must be observed.
Other, more general, ethical rules also bear on the subject of employment
negotiations. The House Code of Official Conduct prohibits House Members,
officers, and employees from receiving compensation ―by virtue of influence
improperly exerted‖ from a congressional position.
48
Paragraph 5 of the Code of
Ethics for Government Service forbids anyone in government service from accepting
―favors or benefits under circumstances which might be construed by reasonable
persons as influencing the performance‖ of governmental duties. Federal criminal
law prohibits a federal official from soliciting or accepting a ―bribe‖ –
i.e.,
something
of value given in exchange for being influenced in an official act.
49
Although bribery
necessarily entails a
quid pro quo
arrangement, the same statute also bans seeking
or accepting ―illegal gratuities‖ –
i.e.
, anything given because of, or in reward for, a
future or past official act, whether or not the official action would be, or would have
been, taken absent the reward.
50
46
See, e.g., United States v. Schaltenbrand
, 930 F.2d 1554, 1559 (11th Cir. 1991),
cert.
denied,
502 U.S. 1005 (1991) and
United States v. Conlon
, 628 F.2d 150, 155 (D.C. Cir. 1980),
cert.
denied
, 454 U.S. 1149 (1982).
47
United States v. Hedges
, 912 F.2d 1397, 1403 n.2 (11th Cir. 1990) (quoting jury
instruction);
see also
Schaltenbrand
,
supra
note 46, at 1559 n.2.
48
House Rule 23, cl. 3.
49
18 U.S.C. § 201(b)(2)(A).
50
Id.
§ 201(c)(1)(B).
210 HOUSE ETHICS MANUAL
In light of these restrictions, Members and employees should be particularly
careful in negotiating for future employment, especially when negotiating with any
individual or entity that could be substantially affected by the performance of
official duties. It may be prudent for the Member or employee to have an exchange
of correspondence with any serious negotiating partner, stipulating that the
prospective employer will receive no official favors in connection with the job
negotiations. Members and those employees who will be subject to the post-
employment restrictions
51
may also wish to establish in correspondence with any
prospective employer that the future employer understands that (1) it will receive
no official favors as a result of the job negotiations, and (2) the Member or employee
is subject to post-employment restrictions, which should be briefly outlined.
52
Former Members and employees who are lawyers should consult their local bar
association concerning the application of rules governing their involvement in
matters in which they participated personally and substantially during their time
with the House.
53
In addition, as addressed more fully below, Members, officers, and
very senior staff must disclose the employment negotiations to the Standards
Committee.
Provided that Members and employees conduct themselves in accordance
with the considerations discussed above, they may engage in negotiations for
employment in the same manner as any other job applicant. Discussions may
specifically address salary, duties, benefits, and other terms.
Notification Requirements. Pursuant to House Rule 27, Members, officers,
and very senior staff must notify the Committee on Standards of Official Conduct
within three (3) business days after the commencement of any negotiation or
agreement for future employment or compensation with a private entity. The
notification requirement applies to all job negotiations commenced, and
employment or compensation agreements entered into, on or after the effective date
51
The post-employment restrictions are discussed in detail in a pair of advisory memoranda
– one for Members and officers and another for employees – issued annually by the Committee.
Copies of the memoranda are available on the Standards Committee website.
52
Briefly, House Members may not contact any Member, officer, or employee of the House or
Senate on official business for one year after leaving office, nor may they assist any foreign
government in securing official action from any federal official during that year. House officers and
employees may neither contact the individual‘s former congressional office or committee members on
official business for one year after leaving House employment, nor assist any foreign government in
securing official action from any federal official during that year. Detailed guidance on the
restrictions is contained in the memoranda referenced in note 51 above.
53
A former employee who joins a law firm should also be aware that a separate statutory
provision, 18 U.S.C. § 203, has been interpreted to prohibit a former federal official who joins a firm
from sharing in fees attributable to representational services in federally related matters where
those services were provided by the firm while the individual was still employed by the government.
OGE Advisory Opinion 99 x 24,
supra
n. 22.
Outside Employment and Income
211
of the rule (September 14, 2007).
54
For 2008, very senior staff are those House
employees who are paid at an annual rate of $126,975 for at least 60 days during
their last twelve months of House employment.
55
In addition, officers, very senior staff, and those Members subject to the
notification requirement must recuse themselves from ―any matter in which there is
a conflict of interest or an appearance of a conflict‖ with the private entity with
which they are negotiating or have an agreement for future employment or
compensation, and they must notify the Standards Committee in writing of such
recusal.
56
Members who make such a recusal also must file their negotiation
notification with the Clerk for public disclosure. The subject of Member recusal
from voting is addressed in more detail later in this chapter. Forms to be used for
these notification requirements are available on the Committee website
(www.house.gov/ethics).
Other provisions of the rules relevant to future employment of Members and
staff include the following. For Members and for staff persons required to file a
termination Financial Disclosure Statement, any agreement they reach on future
employment, whether oral or written, before termination of their service with the
House must be disclosed on Schedule IX of that form. The gift rule provides that a
Member, officer or employee may accept ―[f]ood, refreshments, lodging,
transportation, and other benefits . . . customarily provided by a prospective
employer in connection with bona fide employment discussions‖ (House Rule 25,
cl. 5(a)(3)(G)(ii). More information on this provision is provided in Chapter 2 of this
volume. If an individual accepts travel exceeding $335 in value from a prospective
employer in connection with employment negotiations, that travel must be disclosed
on Schedule VII of the individual‘s Financial Disclosure Statement.
Background on the Restrictions on Outside Employment and Income
At times a newly elected House Member or a new House employee wishes to
continue, in some limited form, the private or other outside employment in which he
54
A Member, Delegate, or Resident Commissioner is not subject to this requirement if his or
her successor has been elected.
55
For employees of ―other legislative offices,‖ the salary triggering the post-employment
restrictions is level IV of the Executive Schedule.
See
18 U.S.C. § 207(e)(7)(B). For 2008, that
amount is $149,000. ―[O]ther legislative offices‖ include the Architect of the Capitol, United States
Botanic Garden, Government Accountability Office, Government Printing Office, Library of
Congress, Office of Technology Assessment, Congressional Budget Office, and Capitol Police. It also
includes any other House legislative branch office not covered by the other provisions, such as the
Clerk, Parliamentarian, Office of Legal Counsel, and Chief Administrative Officer.
See
18 U.S.C.
§ 207(e)(9)(G).
56
House Rule 27, cl. 4.
212 HOUSE ETHICS MANUAL
or she had been engaged. Also, a House Member, officer, or employee may wish to
accept a part-time job or a position with an outside entity or otherwise commence
outside employment simultaneously with their service in the House.
As detailed in the remainder of this chapter, federal law and House rules
include restrictions on the types of outside employment and a limit on the amount
of outside earned income that Members, officers, and employees of the House may
accept. ―Earned‖ income is income that constitutes compensation for services. The
fundamental purpose of the restrictions and limit is to ensure that Members and
staff do not use the influence or prestige of their position with the House for
personal gain, and to preclude conflicts of interest.
While certain laws, rules, and standards of conduct apply to all House
Members and staff (as discussed previously in this chapter), other, more specific
restrictions on outside earned income and employment apply only to Members and
certain highly paid staff, who are referred to in this chapter as ―senior staff,‖ ―senior
employees,‖ or individuals ―paid at the senior staff rate.‖ As detailed below, the
salary rate at which a House officer or employee becomes subject to these specific
limitations is determined for each calendar year by a formula established in both
federal law and House rules. In calendar year 2008 the ―senior staff rate‖ is an
annual rate of $114,468. The senior staff rate for other years is available from the
staff of the Standards Committee.
The restrictions on the outside earned income of House Members and senior
staff are far more detailed and extensive than those applicable to so-called
―unearned‖ income – that is, income that constitutes a return on capital. The House
approved the establishment of an annual limitation on outside earned income in
1977 at the recommendation of the House Commission on Administrative Review,
and the Commission‘s report explains the basic reasons that outside earned income
presents significantly greater ethical concerns:
Earned income creates a variety of more serious potential conflicts of
interest than does investment income, ranging from overt attempts to
curry favor by private groups to subtle distortions in the judgment of
Members on particular issues. . . . The Member who has stock
holdings can transfer his holdings at any time to another company,
and, thus, is not as subject to the same degree of potential conflict as a
Member whose . . . salary [from a private company] could be cut off
arbitrarily.
Outside earned income also presents a ―time conflict‖ between the
Member‘s private interest and the public interest. Supplementing
salary with outside earned income can detract from a Member‘s full
Outside Employment and Income
213
time and attention to his official duties and creates subtle distortions
in judgment as to how Members should use their time. . . .
Moreover, many citizens perceive outside earned income as providing
Members with an opportunity to ―cash in‖ on their positions of
influence. Even if there is no actual impropriety, such sources of
income give the appearance of impropriety and, in so doing, further
undermine public confidence and trust in government officials.
57
Twelve years later, in 1989, the House approved additional, significant
restrictions on outside employment and earned income of Members and senior staff
upon the recommendation of the House Bipartisan Task Force on Ethics. The
report of the Task Force explained the purposes of the limitations then in effect as
follows:
The current limitations on outside earned income and honoraria were
prompted by three major considerations: First, substantial payments
to a Member of Congress for rendering personal services to outside
organizations presents a significant and avoidable potential for conflict
of interest; second, substantial earnings from other employment is
inconsistent with the concept that being a Member of Congress is a
full-time job; and third, substantial outside earned income creates at
least the appearance of impropriety and thereby undermines public
confidence in the integrity of government officials.
* * *
The earned income limitation was intended to assure the public
that (1) Members are not using their positions of influence for personal
gain or being affected by the prospects of outside income; and (2)
outside activities are not detracting from a Member‘s full-time
attention to his or her official duties.
58
Restrictions on Outside Employment Applicable to Members and Senior
Staff
A Member . . . [or an] officer, or employee of the House [paid at
or above the ―senior staff‖ rate], may not –
(a) receive compensation for affiliating with or being employed
by a firm, partnership, association, corporation, or other entity that
57
Comm‘n on Admin. Review,
Financial Ethics
, H. Doc. 95-73, 95
th
Cong., 1
st
Sess. 10 (1977).
58
Bipartisan Task Force Report, supra
note
8
,
at 12, 135
Cong. Rec.
at H9256.
214 HOUSE ETHICS MANUAL
provides professional services involving a fiduciary relationship, except
for the practice of medicine;
(b) permit his name to be used by such a firm, partnership,
association, corporation, or other entity;
(c) receive compensation for practicing a profession that
involves a fiduciary relationship, except for the practice of medicine;
(d) serve for compensation as an officer or member of the board
of an association, corporation, or other entity; or
(e) receive compensation for teaching, without the prior
notification and approval of the Committee on Standards of Official
Conduct. [House Rule 25, clause 2.
See also
5 U.S.C. app. 4 § 502(a).]
Who Is a ―Senior Staff‖ Person for Purposes of the Restrictions on
Outside Employment and Outside Earned Income Limitations?
The Ethics Reform Act of 1989 enacted significant limitations on the outside
employment and earned income of House Members – primarily with respect to
compensation from the practice of any profession and the receipt of honoraria – and
also extended those limitations to highly paid staff. The officers and employees to
whom those limitations are applicable are those paid, for more than 90 days in a
calendar year, at a rate equal to or exceeding 120% of the minimum rate of basic
pay for GS-15 of the executive branch‘s General Schedule (House Rule 25, cl.
4(a)(1)). These limitations do not apply to any officer or employee who is paid at or
above that rate for 90 days or less in a calendar year.
In calendar year 2008, the GS-15 rate of basic pay is $95,390 (locality pay is
not considered in making this determination). Accordingly, in calendar year 2008,
the outside employment and earned income limitations apply to House staff paid at
or above the rate of $114,468. As noted above, this chapter refers to the officers and
employees paid at or above this rate as ―senior staff,‖ ―senior employees,‖ or
individuals ―paid at the senior staff rate.‖ The senior staff rate for other years is
available from the staff of the Standards Committee.
Under federal law and House rules, the outside earned income of House
Members and senior staff is subject to an overall annual limitation, which is
explained in more detail later in this chapter. In calendar year 2008, that
limitation is $25,830. In addition, the provisions of law and rules enacted by the
Ethics Reform Act of 1989 restrict, and in some cases prohibit, compensation for
certain types of services, regardless of whether the individual‘s income has reached
the cap, as follows.
Prohibition Against Receipt of Compensation for the
Practice of Law or Other Professions, and Related Prohibitions
Under the Ethics Reform Act, Members and senior staff are prohibited from
engaging in professions that provide services involving a fiduciary relationship,
Outside Employment and Income
215
including the practice of law and the sale of insurance or real estate. There were
essentially two reasons for the establishment of the fiduciary relationship
prohibitions. First, these professional activities were believed to pose a particular
risk of conflict of interest:
There is also concern that receipt of legal fees and other compensation
for professional services, and directors‘ fees from serving on boards of
corporations, associations, nonprofit organizations, and other entities,
creates at least the appearance of impropriety and the potential for
conflicts of interest. Based on the fundamental principle that a public
office is a public trust, all officials of the government are expected to
act in the interests of the beneficiaries of that trust, that is, the
general public.
When certain private positions and employment create for the
Member or public official a fiduciary or a representational
responsibility to a private client or a limited number of private parties,
then such outside activities create the potential for a serious conflict of
interest. The conflict occurs in the clash of those responsibilities and
the divergence of public and private interests on a particular
governmental matter or in general government policy.
59
Second, there was a desire to ensure that honoraria – which, as detailed
above, was banned under other provisions of the Act – ―not reemerge in various
kinds of professional fees from outside interests.‖
60
Professions Covered by the Prohibitions. What types of professional
activities are embraced by these prohibitions? The statute does not define
―fiduciary,‖ a term generally denoting an obligation to act in another person‘s best
interests or for that person‘s benefit, or a relationship of trust in which one relies on
the integrity, fidelity, and judgment of another.
61
However, the Bipartisan Task
Force Report states that in order for the underlying purposes to be achieved, ―the
term fiduciary [should] not be applied in a narrow, technical sense.‖
62
The report
further states:
59
Id.
at 14, 135
Cong. Rec.
at H9256.
60
Id.
at 16, 135
Cong. Rec.
at H9257.
61
See
Black‘s Law Dictionary
658, 1315 (8th ed. 2004);
Bipartisan Task Force Report
,
supra
note 8, at 16, 135
Cong. Rec.
at H9257.
62
Bipartisan Task Force Report
,
supra
note 8, at 16, 135
Cong. Rec.
at H9257.
216 HOUSE ETHICS MANUAL
The task force intends the ban to reach, for example, services such as
legal, real estate, consulting and advising, insurance, medicine,
architecture, or financial.
63
In the same vein, in the debate preceding passage of this law, one of the
Members who served on the Bipartisan Task Force explained that ―it eliminates the
ability of Members of Congress to earn income from professional fees such as law
practice, insurance, or accounting, any income that could be funneled from lobbyists
to Members under the guise of personal services.‖
64
A Standards Committee advisory memorandum of February 23, 1998
(included in the appendices) contains a Committee determination that the practice
of medicine is a profession involving a fiduciary relationship and hence is subject to
the fiduciary relationship prohibitions. That memorandum further advised that
henceforth, in determining whether a profession is covered by these provisions, the
Committee would rely on the above-quoted list of professions in the Bipartisan Task
Force Report, and would also look to (1) whether applicable state law establishes
any fiduciary relationship with regard to that profession, and (2) the regulations on
covered professions issued for the Executive Branch by the U.S. Office of
Government Ethics (5 C.F.R. § 2636.305(b)(2) (2006)).
65
However, as discussed
further below, the Committee has issued guidance permitting Members to accept
fees for the practice of medicine in certain limited circumstances.
The applicability of the fiduciary relationship prohibitions to consulting or
advising on business matters and political consulting, and to medical practice, is
further addressed in this next section of this chapter.
There are three separate prohibitions relating to professions involving a
fiduciary relationship. Except with regard to the practice of medicine, these
prohibitions are set forth in virtually identical form in both statutory law and the
House rules, as follows.
Prohibition Against Receiving Compensation From Practice of a Covered
Profession. Members and senior staff are prohibited from ―receiv[ing] compensation
for practicing a profession that involves a fiduciary relationship.‖
66
Accordingly,
Members and senior staff may not receive compensation for providing professional
63
Id.
64
135
Cong. Rec.
H8751 (daily ed. Nov. 16, 1989) (statement of Rep. Obey).
65
This approach superseded a ―three-pronged test‖ that the Standards Committee had used
to that time to determine whether a particular employment opportunity involved a fiduciary
relationship.
See House Ethics Manual
, 102d Cong., 2d Sess. (April 1992), at 103.
66
House Rule 25, cl. 2(c); 5 U.S.C. app. 4 § 502(a)(3).
Outside Employment and Income
217
services in the fields noted above, and may not participate in any arrangement
under which fees for any such services that they render are paid to any other
individual or entity.
The prohibition applies only to compensation for services that the individual
provides while serving as a Member or senior employee, and it does not apply to
compensation for services provided prior to assuming office. Thus, for example, a
Member who had been an insurance agent may accept renewal commissions
generated by policies sold prior to becoming a Member, and a Member who had been
a leasing agent may accept renewal commissions with respect to leases that were
entered into prior to that time. It appears that in most such arrangements,
payment of the commission is not contingent upon the performance of any future
services by the recipient, and the only contingency is that the insured or the lessee
continue to pay premiums or rent, as the case may be.
67
Similarly, a Member who
had been an attorney may accept a fee for legal work completed prior to becoming a
Member.
68
Any such renewal commission or other income received by a Member or
senior employee for services provided prior to assuming office must be reported on
Schedule I of the Financial Disclosure Statement of the Member or senior staff
person for the year in which the income was received. However, as detailed below,
such income does not count against the individual‘s outside earned income
limitation for that year.
As noted above, the prohibition extends generally to ―consulting and
advising.‖ They clearly apply to consulting and advising in professional fields such
as law, accounting, investing, and real estate or insurance sales. In addition, as a
general matter, the prohibition extends to consulting or advising on business
matters. However, where certain requirements are satisfied, a Member or senior
staff person is not prohibited from accepting compensation for business consulting
67
It also appears that in most such arrangements, the level of a renewal commission was set
at the time that the original policy or lease was entered into. In any instance in which the level of a
renewal commission was not set at that time, but instead is to be determined by the parties at a
later time, the Member or senior employee should contact the Standards Committee for advice.
68
However, such a Member could not participate in an arrangement with his or her former
firm in which the Member would be paid income derived from the continuing or future business of
clients that the Member had brought into the firm.
Regarding the possibility that receipt of attorney‘s fees for work in a case against the United
States performed prior to the commencement of one‘s service with the House may be prohibited by 18
U.S.C. §§ 203, 205, see
Attorney‘s Fees for Legal Services Performed Prior to Federal Employment
,
Memorandum of Beth Nolan, Deputy Ass‘t Att‘y Gen., Office of Legal Counsel, Dep‘t of Justice, to
Director, Departmental Ethics Office (Feb. 11, 1999) (available on the Office of Legal Counsel
website, www.usdoj.gov/olc). The provisions of 18 U.S.C. §§ 203 and 205 are discussed earlier in this
chapter.
218 HOUSE ETHICS MANUAL
from a business in which the Member or staff person (or his or her family) holds a
controlling interest. In order for business consulting on a paid basis to be
permissible, (1) the family-owned business may not be a law firm, an insurance
agency, or any other entity that provides professional services involving a fiduciary
relationship, (2) the services provided by the Member or senior staff person may not
be in a professional field such as law or accounting, and (3) the other limitations on
outside earned income and employment set forth in this chapter must be observed.
Any Member or senior staff person who wishes to receive compensation for
consulting services provided to a family-owned business should first consult with
the Standards Committee.
As a general matter, the prohibition also extends to consulting or advising on
political matters and public relations. However, a senior staff person is not
prohibited from accepting compensation for political consulting services that he or
she provides to either a candidate (including one‘s employing Member), a political
party, or a Member‘s leadership PAC.
69
Senior staff who wish to consult for any
other type of political organization or entity should consult the Standards
Committee for guidance before undertaking any such employment. In addition, in
order to be permissible, the political consulting services for which the senior staff
person is compensated may not be in a professional field such as law or accounting,
and the other limitations on outside earned income and employment set forth in
this chapter must be observed.
With regard to the practice of medicine, as noted above, in 1998 the
Standards Committee determined that medical practice is a profession covered by
the prohibitions. In 2003 the House amended its rules to exempt medical practice
from the fiduciary relationship prohibitions, but no corresponding change has yet
been made in the prohibitions as set out in statutory law.
70
Notwithstanding the
existing statutory prohibition, the Standards Committee has authorized Member-
physicians to practice medicine for a limited amount of compensation. Specifically,
the Committee advised that a Member who is a doctor does not violate the
prohibition if he or she receives, in any calendar year, fees or other payments for
medical services that do not exceed the actual and necessary expenses incurred by
the Member during the year in connection with the practice. The particulars of and
the reasons for that Committee determination are set forth in the February 1998
69
As indicated in the text, such compensation is permissible for senior staff persons only, and
not for Members. It should also be noted that Federal Election Commission regulations that were
promulgated in 2002 prohibit Members from receiving compensation from their own campaign (11
C.F.R. § 113.1(g)(1)(i)(I)). A Member‘s receipt of compensation from his or her own campaign is also
barred by the provision of the House Rules that prohibits the conversion of campaign funds to
personal use (House Rule 23, cl. 6).
70
149
Cong. Rec.
H9, H12 (daily ed. Jan. 7, 2003). This amendment is reflected in the
excerpt from the rule that is quoted at the beginning of this section.
Outside Employment and Income
219
memorandum included in the appendices to this Manual. Any Member-physician
wishing to accept payment for providing medical services should review that
memorandum and consult with the Standards Committee. In particular, Members
who practice medicine for compensation must file an annual accounting with the
Standards Committee that describes the total fees charged, payments received, and
any expenses.
Occasionally a Member or senior staff person is named or requested to act as
the personal representative or executor of the estate of a deceased individual. If the
Member or senior staff person is an attorney, then any fees for serving as personal
representative or executor would be deemed to constitute compensation for legal
services and hence could not be accepted. However, the Standards Committee has
recognized an exception to this rule when the deceased individual is an immediate
family member of the Member or senior staff person. In that circumstance, the fees
normally paid to a personal representative or executor may be accepted, but they
would count against the individual‘s outside earned income limitation for the
year(s) in which the services are rendered.
Finally, occasionally an incoming Member or senior staff practiced a
profession involving a fiduciary relationship prior to taking office, and wishes to
complete a matter after taking office. As a general rule, any such ―winding up‖ work
must be done on an uncompensated basis. Nevertheless, in certain very limited
circumstances, the Standards Committee may allow the Member or senior staff
person to accept compensation for that work. Any incoming Member or employee
wishing to continue work under these circumstances should consult with the
Standards Committee for more detailed guidance.
Example 24.
A Member, before his election to the House, was vice
president and general counsel of a small manufacturing company.
After he assumes office, the company would like him to continue in his
prior capacities, but at a reduced salary to reflect his reduced time
commitment to the company. The Member may not accept any
compensation from the company under these circumstances since the
payment would be compensation for providing legal advice, a
professional service involving a fiduciary relationship. (Such
compensation would also be an impermissible officer‘s fee (see below).)
Example 25.
A political consulting firm that specializes in advising
candidates for state office offers a consulting contract to a Member.
The firm is hoping to attract new clients by making available the
demonstrated political savvy and expertise of the Member. The
Member may not enter into the contract because the consulting
services the Member would provide are among those for which a
Member may not receive compensation, and in any event, it appears
220 HOUSE ETHICS MANUAL
that the purpose of the contract is to capitalize on the individual‘s
status as a Member.
Example 26.
A Member who is a lawyer would like to represent an
indigent client on a
pro bono
(unpaid) basis. Since she will not be
compensated, she may do so, provided that she observes all other
limits on the practice of law by Members (see the section on law
practice earlier in this chapter).
Example 27.
The House pay of a staff person is increased to a rate
above the senior staff rate. While she was paid below the senior staff
rate, she earned outside income as an insurance and real estate
broker. As of the time she becomes a senior employee, she may no
longer do so.
Example 28.
A Member who is an attorney is named the executor of
his late uncle‘s estate. Because the service would be on behalf of a
family member, he may accept payment of executor‘s fees at the
customary rate.
Prohibition Against Receiving Compensation for Affiliating With an Entity
That Provides Covered Professional Services. Members and senior staff are also
prohibited from ―receiv[ing] compensation for affiliating with or being employed by
a firm, partnership, association, corporation, or other entity that provides
professional services involving a fiduciary relationship.‖
71
Under this prohibition,
Members and senior staff may not receive compensation for affiliating with or being
employed by such an entity in any capacity.
Under this prohibition, a Member or senior staff person may not receive
compensation for serving as, for example, a business manager or administrative
assistant of a law firm, a medical practice, or a real estate or insurance agency. As
to whether a particular firm provides professional services involving a fiduciary
relationship (meaning that compensation for the services would be covered by this
prohibition), see the description of covered professions that is provided above in this
chapter.
Example 29.
A Member is in her final year in the House, having
announced her retirement. Upon leaving the House she will join a law
firm and will open a new office for the firm. Before her term expires,
she wishes to begin organizing the office by, for example, arranging for
office space and interviewing potential employees. She may not
71
House Rule 25, cl. 2(a); 5 U.S.C. app. 4 § 502(a)(1).
Outside Employment and Income
221
receive any compensation from the law firm even for any non-legal
work that she does in the time before her House term expires.
Example 30.
A staff person whose House pay exceeds the senior staff
rate ceased selling real estate prior after coming to work on the Hill.
In order to maintain his license, however, he must remain affiliated
with a real estate firm. As long as he is not actively selling and he
receives no compensation, he may maintain this affiliation. However,
the firm may not publicly use his name (see below).
Prohibition Against Permitting One‘s Name To Be Used by an Entity That
Provides Covered Professional Services. A Member or senior staff person is further
prohibited from ―permit[ting] his name to be used by . . . a firm, partnership,
association, corporation, or other entity‖ that ―provides professional services
involving a fiduciary relationship.‖
72
While the other two fiduciary relationship
prohibitions relate to receipt of compensation, the ban on allowing one‘s name to be
used by a covered organization applies regardless of whether the organization
compensates the Member or employee. The ban extends, for example, to use of the
name of the Member or senior staff person on the letterhead, advertising, or signage
of any covered organization.
Under this provision, when the name of an incoming Member or senior staff
person had been used in the name of a law firm, real estate agency, or other
organization that provides fiduciary services, the name of that organization must be
changed to eliminate the name of the Member or senior staff person. However, the
requirement does not apply when the organization‘s name in fact reflects a ―family‖
name, as opposed to that of the individual Member or staff person. On this point,
the Bipartisan Task Force Report states, ―the fact that a Member, officer, or
employee is presently associated with a law firm founded by, and still bearing the
name of, his father would not require the firm to drop the ‗family‘ name.‖
73
In addition, federal law at 5 U.S.C. § 501 provides that a firm, business, or
organization that practices before the federal government may not use the name of
a Member of Congress to advertise the business. These limitations are in accord
with model rules of the American Bar Association (ABA) that prohibit the facade of
retaining a government lawyer‘s name in a firm when the individual is not actively
and regularly practicing.
74
72
House Rule 25, cl. 2(b); 5 U.S.C. app. 4 § 502(a)(2).
73
Bipartisan Task Force Report
,
supra
note 8, at 16, 135
Cong. Rec.
at H9257.
74
See
ABA,
Model Rules of Professional Conduct,
Rule 7.5(c) (2007).
222 HOUSE ETHICS MANUAL
Example 31.
A Member was a name partner in a law firm before
election to Congress. Upon his election, the firm changed its name to
reflect his resignation but requested that it be allowed to list him as ―of
counsel‖ on its letterhead so as to maintain the goodwill of his former
clients. Even if he accepts no compensation from the firm, the Member
must refuse the request.
Example 32.
Member Jane Doe is a certified public accountant. Prior
to her election, she was employed by the accounting firm of Doe & Moe,
named for its founder and her father, Joe Doe. Since the firm was not
actually named for her, it does
not
have to change its name upon her
election.
Prohibition Against Serving for Compensation as an Officer
or Board Member of Any Organization
The ban on paid board service – like the restrictions on paid teaching
discussed in the next section – arises from the same set of concerns as the fiduciary
relationship prohibitions. The ban on accepting compensation for serving as an
officer or board member applies to all entities, including nonprofit and campaign
organizations, and governmental entities. As a general matter, Members and
senior staff may serve in such capacities, but they may not be paid any directors‘
fees or other compensation for that service.
75
They may accept reimbursements for
travel and other expenses in carrying out the duties of a board member and may be
covered by an insurance policy as a member of a board,
76
provided that acceptance is
permissible under the applicable provision of the gift rule (House Rule 25, cl.
5(a)(3)(G)(i)).
Example 33.
A Member serves on the board of a hospital in his
district. He receives no salary, but the hospital pays for his travel
expenses if he makes a special trip to attend a board meeting, and he is
covered under the hospital‘s officers‘ and directors‘ liability policy.
These arrangements do not violate the prohibition against
compensated board service.
75
The Internal Revenue Code specifically excludes from income any payments in lieu of
honoraria made to charities at a Member, officer, or employee‘s behest and disallows any tax
deduction for them by that individual (26 U.S.C. § 7701(k)). No comparable provision addresses
payments to charity in lieu of directors‘ fees. Thus, even if a director tried to have his or her fees
donated to charity, those fees could still be deemed constructive income to the individual under tax
law, which would permit the individual to take an itemized deduction. Any arrangement whereby a
Member, officer, or covered employee receives a direct or indirect financial benefit from board service
is prohibited under the Ethics Reform Act.
76
See
Bipartisan Task Force Report
,
supra
note 8, at 16, 135
Cong. Rec.
at H9257.
Outside Employment and Income
223
Example 34.
A staff person whose pay is above the senior staff rate
works on a Member‘s campaign on her own time and outside of
congressional space. The staff person may be paid for her campaign
work, subject to the outside earned income cap, as long as she is not
paid as the campaign‘s treasurer or any other officer for the campaign.
Requirement for Prior Committee Approval of Compensation for Teaching
Members and senior staff may not teach for compensation unless they receive
prior written approval from the Standards Committee for each semester or
academic year in which the teaching will occur. This requirement ensures that
teaching does not become an avenue for circumventing the honoraria ban. In order
to receive approval, the teaching must conform to the following criteria:
(1) The teaching is part of a regular course of instruction at an
established academic institution.
(2) All compensation comes from the funds of the institution and none
is derived from federal grants or earmarked appropriations.
(3) The payment is for services on an ongoing basis, not for individual
presentations or lectures.
(4) The teacher‘s responsibilities include class preparation and
student evaluation (for example, grading papers, testing, and
homework).
(5) The students receive credit for the course taught.
(6) The compensation does not exceed that normally received by others
at the institution for a comparable level of instruction and amount of
work.
(7) No official resources, including staff time, are used in connection
with the teaching.
(8) The teaching does not interfere with official responsibilities nor is
it otherwise inconsistent with the performance of congressional duties.
(9) The employment or compensation does not present a significant
potential for conflict of interest.
Items 1 through 6 should be confirmed in writing by the institution at which
the paid teaching will occur. Documentation may be in the form of an explanatory
224 HOUSE ETHICS MANUAL
letter or copy of a teaching contract attached to the request for Committee approval.
Items 7 through 9 should be affirmed in writing by the individual seeking to teach.
The Standards Committee also normally approves requests to teach for
compensation in less formal settings such as Sunday school, piano lessons, aerobics
classes, and other situations clearly unrelated to official duties or an individual‘s
status in Congress. No documentation need be submitted from the employing
institution in such instances, but Committee approval is required. Compensation
received for teaching at any institution is subject to the outside earned income limit
for Members and covered staff, discussed later in this chapter.
Requirement for Committee Approval of Publishing Contracts, and Prohibition
Against Receipt of Any Advance Payment of Royalties
Three provisions of House Rule 25 apply where a Member or staff person paid
at the senior staff rate wishes to enter into a contract for the publication of a book.
Briefly stated, those provisions:
Prohibit the receipt of copyright royalties unless the contract is first approved
by the Standards Committee, with the criteria for approval being that the
royalties are to be received from an established publisher pursuant to ―usual
and customary contractual terms;‖
Prohibit the receipt of any advance payment on copyright royalties (a
researcher or other individual working for a Member on a book may receive
an advance directly from the publisher, provided that the individual neither
is employed by the House nor is a relative of any House Member, officer, or
employee); and
Exempt from the outside earned income limitation any copyright royalties
received under a publishing contract that complies with the above rules.
Elaboration on these provisions follows.
The Requirement for Prior Approval of Publishing Contracts. A Member or
senior employee may not ―receive copyright royalties under a contract . . . unless
that contract is first approved‖ by the Standards Committee (House Rule 25, cl.
3(b)). The criteria for Committee approval are that the royalties ―are received from
an established publisher under usual and customary contractual terms‖ (
id.
cl. 3(b),
4(d)(1)(E)).
In determining whether a publisher is an ―established‖ one for purposes of
the rule, the Committee will consider, among other things, information on the
company that is available in standard industry reference books, such as the year
that the company was founded and the number of titles that it has in print. In
determining whether the terms of a proposed contract are ―usual and customary‖
ones, the Committee requires representations from the publisher as to the contract
Outside Employment and Income
225
terms that it offers to similarly situated authors and whether the terms offered to
the Member or employee differ in any way from its standard terms. In reviewing
contract terms, the Committee considers, among other terms, those that benefit the
author, including the royalty rates, any provision that entitles the author to copies
of the book either without charge or at a reduced price, and any provision for a book
tour sponsored by the publisher.
At times a Member wishes to enter into a publishing contract that provides
that any royalties are to be paid directly to a charity that the Member designates in
the contract. Any publishing contract of a Member or senior staff person that
provides for the payment of royalties to a charity or other person must nevertheless
be submitted to the Standards Committee for prior approval.
Contracts with a publisher for a congressional author to self-publish a book
are permitted, provided the contract contains the publisher‘s standard terms,
available to all authors. Such contracts may not provide any advance on royalties.
The Prohibition Against Receipt of an Advance on Copyright Royalties.
Under a provision of the rules that was approved in late 1995, Members and senior
staff are prohibited from ―receiv[ing] an advance payment on copyright royalties‖
(House Rule 25, cl. 3(a)). However, the rule does not prohibit an individual who is
working with a Member or senior employee on a publication, such as a literary
agent or researcher, from receiving an advance on copyright royalties, provided that
the individual is neither a House employee nor a relative of a Member or an
employee. Specifically, the rule against advances on copyright royalties
does not prohibit a literary agent, researcher, or other individual
(other than an individual employed by the House or a relative of a
Member, . . . officer, or employee) working on behalf of a Member, . . .
officer, or employee with respect to a publication from receiving an
advance payment of a copyright royalty directly from a publisher and
solely for the benefit of that literary agent, researcher, or other
individual.
77
Exemption of Certain Copyright Royalties From the Outside Earned Income
Limitation
.
The outside earned income of Members and senior staff are subject to
the outside earned income limitation discussed later in this chapter. However,
among the types of income that are exempt from the annual limitation are
77
House Rule 25, cl. 3(a).
226 HOUSE ETHICS MANUAL
―copyright royalties received from established publishers under usual and
customary contractual terms‖ (House Rule 25, cl. 4(d)(1)(E)). Underlying this
provision of the rules is the concept that such royalties are a return on the author‘s
intellectual property, akin to other unrestricted returns on property.
78
It is important to note that the only copyright royalties that are exempt from
the outside earned income limit are those ―received from an established publisher
under usual and customary contractual terms.‖ In the 104
th
Congress the
Standards Committee determined that the amounts a Member had received for the
sales of his book did not satisfy the requirements of the rule and hence were not
exempt from the outside income limitation.
79
In that instance, the Member‘s book
was published in a foreign country under an arrangement in which the Member
received a flat fee of $25,000, as well as additional payments from a marketing
agent based on a rate of 40% of the proceeds of sales. Moreover, all of the payments
from the marketing agent derived from bulk book sales to businesses, trade
associations, and other entities in that country. The payments that the Member
had received for his book exceeded the outside earned income limit by $112,258.
Because refund of the excess to the purchasers of the book was impracticable, the
Committee required the Member to donate the amount in excess of the outside
earned income limitation either to qualified charities or the U.S. Treasury for debt
reduction.
Other Rules on Book-Related Activities. The writing of a book by a Member
or staff person is not considered official House business, even when the subject of
the book is congressional issues or one‘s experiences in Congress. The same applies
to other book-related activities, such as seeking and entering into a contract with a
publisher or others, and promoting one‘s book. Instead, such activities are
considered outside business activities, and this is so even if the Member or
employee has contracted that any royalties will be paid to charity. Accordingly,
those activities are subject to the laws, rules, and standards of conduct governing
the outside employment of Members and all staff that are discussed earlier in this
chapter.
Thus, for example, a Member or staff person may not use any House
resources – including office supplies or equipment, or staff time – in any book-
related activity in which he or she is engaging. In addition, at times the publisher
wishes to arrange a book tour, or an individual or organization wishes to host a
book-related event or otherwise assist or further sales of one‘s book. For Members
78
See
Senate Special Comm. on Official Conduct,
Senate Code of Official Conduct
, S. Rep.
95-49, 95
th
Cong., 1
st
Sess. 39 (1977),
quoted in
House Comm. on Standards of Official Conduct,
Statement in the Matter of Rep. James C. Wright, Jr.
, 101
st
Cong., 1
st
Sess. 32 (1989).
79
See
House Comm. on Standards of Official Conduct,
In the Matter of Rep. Jay Kim
, H.
Rep. 105-797, 105
th
Cong., 2d Sess. 56-66 (1998).
Outside Employment and Income
227
and staff, the acceptability of such an offer is governed by the gift rule (House Rule
25, clause 5). As a general matter, the provision of the gift rule implicated by such
offers is that which allows a Member or staff person to accept benefits resulting
from his or her outside activities, provided that two requirements are satisfied: (1)
The benefits have not been offered or enhanced because of the individual‘s position
with the House, and (2) those benefits are customarily provided to others in similar
circumstances (House Rule 25, cl. 5(a)(3)(G)(i)).
In addition, under provisions of the House Rules and statutory law that
prohibit the conversion of campaign funds to personal use, a Member is prohibited
from using campaign funds or resources either to purchase copies of a book from
which he or she receives royalties, or in furtherance of any activity that involves
sales of such a book (House Rule 23, cl. 6; 2 U.S.C. § 439a). Chapter 8 regarding
campaign activity provides further detail on this point.
Another relevant provision of the rules is the honoraria ban, which is
discussed in more detail earlier in this chapter. While the ban generally prohibits
Members and staff from receiving payment for, among other things, an article, a
distinction is made between books and articles. A book author‘s royalties generally
reflect the book‘s sales, that is, the public‘s assessment of the book‘s worth. An
article, on the other hand, typically garners a one-time fee, based only on what the
publisher is willing to pay the particular author (and not necessarily related to the
marketability of the piece). To be exempt from the honoraria prohibition, a book
must be published by an established publisher pursuant to a usual and customary
royalty agreement, as discussed above.
In an investigation in the 101
st
Congress, the Committee found reason to
believe that certain income that a Member reported as book royalties was actually
excessive honoraria. The Committee‘s Statement of Alleged Violations charged that
the Member, having reached his outside earned income limit, arranged bulk book
sales to groups before whom he spoke in lieu of collecting honoraria.
80
The Member
resigned before the Committee could proceed further.
Bulk book sales are not, however, invalid
per se
. In another case, the
Committee declined to initiate a Preliminary Inquiry based on allegations (among
others) that a bulk book sale might have been an improper gift or political
contribution, where the Member received no personal financial benefit from the
sale.
81
Unlike the previous case, there were no allegations that the sale was
arranged to compensate the Member for personal services.
80
Statement in the Matter of Rep. James C. Wright, Jr.
,
supra
note 78, at 19-42.
81
House Comm. on Standards of Official Conduct,
Statement Regarding Complaints Against
Rep. Newt Gingrich,
101
st
Cong., 2
d
Sess. 41-43 (1990).
228 HOUSE ETHICS MANUAL
Example 35.
A Member writes a book of memoirs about his years in
public service. An established publisher offers the Member its usual
and customary royalty terms for the right to publish the book. The
Member may have the book published and collect royalties under the
contract, once he receives written approval from the Committee. The
royalties will be deemed ―unearned income‖ and will not count against
the Member‘s outside earned income cap.
The Outside Earned Income Limitation Applicable to Members and
Senior Staff
Amount of the Annual Limitation
In addition to the limitations on outside employment set forth above, House
Members, as well as officers and employees paid at the ―senior staff‖ rate for more
than 90 days in a calendar year, are subject to an annual limitation on the amount
of their outside earned income.
82
The amount of the limit for any year is 15% of the
rate of pay for Level II of the Executive Schedule in effect on January 1 of the year.
The rate of pay for Executive Level II in 2008 is $172,200. Accordingly, the outside
earned income limit for calendar year 2008 is $25,830. The limitations for other
years are available from the Standards Committee.
Income Subject to the Annual Limitation, and Income Excluded From the
Limitation. The limitation applies only to earned income, that is, compensation for
services, and not to investment income. The term ―outside earned income‖ is
defined in the rules as –
wages, salaries, fees, and other amounts received or to be received as
compensation for personal services actually rendered.
House Rule 25, cl. 4(d)(1). In the debate preceding adoption of the rule, one Member
distinguished earned income as that which one earns ―by the sweat of [one‘s]
brow.‖
83
The matter of earned versus unearned income is discussed further below.
The limitation applies by its terms to outside earned income that is
―attributable‖ to a calendar year. In attributing outside earned income, the
82
5 U.S.C. app. 4 § 501(a)(1); House Rule 25, clause 1(a)(1). The House rule limiting outside
earned income was adopted originally on Mar. 2, 1977 (H. Res. 287, 95
th
Cong., 1
st
Sess.) and
amended on Dec. 15, 1981 (H. Res. 305, 97
th
Cong., 1
st
Sess.), and again, as a result of the Ethics
Reform Act of 1989, Pub. L. 101-194, § 804, 103 Stat. 1716, 1776 (1989).
83
123
Cong. Rec.
5902 (Mar. 2, 1977) (statement of Rep. Frenzel).
Outside Employment and Income
229
Standards Committee uses the approach reflected in regulations issued by the U.S.
Office of Government Ethics for the executive branch,
i.e.
, ―[r]egardless of when it is
paid, outside earned income is attributable to the calendar year in which the
services for which it is paid were provided.‖ 5 C.F.R. § 2636.304(d) (2006).
In addition, in 1978 the House Select Committee on Ethics issued a major
advisory opinion on the outside earned income limitation, and a copy of that opinion
as updated to reflect changes to applicable laws and rules is reprinted in the
appendices to this chapter.
84
That opinion states, ―[o]utside earned income is
attributed to the year in which the Member‘s, officer‘s or employee‘s right to receive
it becomes certain (
i.e.
, under the accrual method) rather than to the year of
receipt.‖
85
Accordingly, for purposes of the limitation, income that a Member or
senior employee earns in a particular year may not be deferred to a future year in
which he or she has less outside earned income, or until after the individual retires
from Congress.
The rule explicitly excludes the following types of income from the definition
of ―outside earned income,‖ and hence from the outside earned income limitation:
The individual‘s congressional salary;
Compensation for services ―actually rendered‖ before the individual became a
Member or senior employee, or before the effective date of the rule;
Amounts paid by, or on behalf of, a Member or senior employee to a tax-
qualified pension, profit-sharing, or stock bonus plan, and received by the
individual from that plan;
Amounts received from a family-controlled trade or business in which both
personal services and capital are income-producing factors, provided that the
personal services actually rendered by the Member or senior employee do not
generate a significant amount of income; and
Copyright royalties received from established publishers under usual and
customary contractual terms (House Rule 25, cl. 4(d)(1)).
With regard to the exception for income from a family-owned farm or
business, the Commission on Administrative Review in the 95
th
Congress offered
the following explanation:
84
House Select Comm. on Ethics,
Advisory Opinion No. 13
(Oct. 1978),
reprinted in
H. Rep.
95-1837, and reprinted in updated form in the appendices to this Manual.
85
Id.
230 HOUSE ETHICS MANUAL
[T]he Commission believes that Members should be able to
render personal services to manage or protect their equity in a family
trade or business without having to allocate these personal services
toward the 15-percent limitation. However, if the personal services, in
and of themselves, generate any significant amount of income, the
resulting income should be subject to the . . . limitation. Conversely,
the Commission believes that in implementing this limitation care
should be taken to prevent Members from circumventing it by
incorporating themselves into a ―family business‖ and then
withdrawing what in reality are fees for personal services in the form
of dividends or profits.
86
The debate preceding the adoption of this rule emphasized that personal
services that generate income do not come within the exemption and would thus be
subject to the earned income limitation:
The crucial element in determining whether the limitation
applies . . . is this: If the personal services produce the income, then it
does not matter whether it is a family business . . . or anything else.
If those personal services actually produce the income, then it comes
under the limitation.
87
Additionally,
Advisory Opinion No. 13
of the House Select Committee on
Ethics (reprinted in updated form in the appendices to this Manual) emphasizes the
following with respect to the ―family business‖ exemption:
[T]he definition of earned income in Rule 25, which excludes
amounts received by a Member from a family controlled business ―so
long as the personal services actually rendered by the individual . . . do
not generate a significant amount of income,‖ was simply intended to
assure Members, officers, and employees that they could continue to
make decisions and take actions necessary to manage or protect their
equity in a family trade or business, and would not be forced to divest
themselves of their family business interests. As with any business, a
Member, officer, or employee would not be required to allocate a share
of the profits of the business as outside earned income when the facts
and circumstances show that the income is in reality a return on
investment.
86
Financial Ethics
, H. Doc. 95-73,
supra
note 57, at 11.
87
123
Cong. Rec.
5897 (Mar. 2, 1977) (statement of Rep. Hamilton);
see also id.
at 5902
(statement of Rep. Obey).
Outside Employment and Income
231
Earned vs. Unearned Income. The annual limitation applies to compensation
for personal services (termed ―earned income‖), but not to moneys received from
ownership or other investments of equity (so-called ―unearned income‖).
88
In this
regard,
Advisory Opinion No. 13
emphasizes that the ―real facts‖ of a particular
case would control as to whether moneys received would be deemed earned income:
[T]he label or characterization placed on a transaction,
arrangement or payment by the parties may be disregarded for
purposes of the Rule. Thus, if amounts received or to be received by a
Member, officer, or employee are in fact attributable to any significant
extent to services rendered by the Member, officer, or employee the
characterization of such amounts as partnership distributive share,
dividends, rent, interest, payment for a capital asset, or the like, will
not serve to prevent the application of Rule 25 to such amounts. . . .
For purposes of this Opinion, there are two types of income –
earned and unearned. If the compensation received is essentially a
return on equity, then it would generally not be considered to be
earned income. If the income is not a return on equity, then such
income would generally be considered to be earned income and subject
to the limitation.
Personal Service Businesses. In businesses for which capital is not a
material income-producing factor, the Advisory Opinion states that the entire share
of profits is generally considered earned income, unless it can be shown that some
income actually derives from a return on investment. Even when the Member
performs no personal services, it is presumed, lacking a strong showing to the
contrary, that the Member‘s share of profits from a service business is for attracting
or retaining clients and thus is considered earned income. As to law practices
specifically, the Advisory Opinion states that ―buy-out‖ arrangements are permitted
and will not be counted toward the earned income limit when fair and reasonable in
relation to comparable practices. To ensure that these criteria are satisfied, it is
advisable for a Member to consult with the Standards Committee before accepting a
―buy-out.‖
Business Corporations. In business corporations, only payment for services
the Member performs is considered earned income. An increase in the value of the
firm‘s stock or distribution of profits is not considered earned income. This practice,
however, cannot be used as a subterfuge, such as a Member incorporating for the
purpose of making speeches or writing articles, then having all fees directed to the
corporation and later distributed to the Member as ―profits.‖
88
See
123
Cong. Rec.
5901-02 (Mar. 2, 1977) (statement of Rep. Frenzel).
232 HOUSE ETHICS MANUAL
Close Corporations, Partnerships, and Unincorporated Businesses. When a
Member has an ownership interest and also performs some services, as in a close
corporation, partnership, or unincorporated business, some of the profits might
result from the personal services of the Member and therefore would be considered
earned income.
Advisory Opinion No. 13
(included in the appendices) states, ―the
determining factor is whether the Member‘s personal services generate significant
income for the business.‖ The Member may protect his or her interest and
investments in the business through general oversight and management of
investments without generating earned income. However, fees, compensation, or
salaries from such a business are earned income. When the Member‘s principal
function is to refer or to help retain clients, then ―the Member would be deemed to
be rendering income-producing services, even though the actual time involved
might be minimal.‖
Administration and Enforcement of the Outside Employment and
Outside Earned Income Limitations, and Impact of the Limitations
Administration and Enforcement
Statutory law provides that with respect to House Members, officers, and
employees, the outside employment and earned income limitations are administered
by and subject to the rules and regulations of the Standards Committee (5 U.S.C.
app. 4 § 503(1)).
89
That statute also authorizes the Committee to render written
advisory opinions on these provisions to Members and staff. Under the statute, any
Member or staff person who acts in good faith in accordance with a written advisory
opinion from the Committee is not subject to sanction under the statute. The
Committee therefore encourages anyone with questions regarding outside
employment or income to contact the Committee for guidance.
Statutory law further provides that the Attorney General may bring a civil
action against any individual who violates the outside employment or earned
income limitations, and that the court may assess a civil penalty of up to $11,000 or
the amount of compensation for the prohibited conduct, whichever is greater (5
U.S.C. app. 4 § 504(a)). A Member, officer, or employee who violates any of the
limitations is also subject to disciplinary action by the House. In any event, the
Standards Committee may require a Member or staff person who receives
compensation in violation of any of the limitations to return the impermissible
amount to the payor. When return would be impracticable, the Committee may
permit the individual instead to make a donation in that amount to a charitable
89
Under that statute, the Standards Committee also administers these provisions for certain
legislative branch agencies, but it may delegate this authority to those agencies.
Outside Employment and Income
233
organization, with that donation being explicitly designated by the individual as
having been made to remedy the violation. As to whether, in a given case, this
remedy is permissible is for the Committee, not the individual, to decide.
Impact of the Limitations
The overall effect of the outside employment limitations as summarized
above – particularly when considered with the honoraria ban and the other
provisions on outside employment discussed in this chapter – is to severely restrict
the ability of Members and senior staff to earn outside income. As a practical
matter, relatively few Members receive outside earned income for services they
provide on a current basis.
90
For the most part, those having such income receive it
either from an approved teaching position or from a business that is controlled by
either the Member or the Member‘s family. By and large, the senior staff members
who have such income receive it for outside political work for either their employing
Member or another candidate, or a political party.
91
Member Voting and Other Official Activities on Matters of Personal
Interest
Voting on matters before the House is among the most fundamental of a
Member‘s representational duties, and historical precedent has taken the position
that there is no authority to deprive a Member of the right to vote on the House
floor.
92
Thus, as a general matter, the decision on whether to refrain from voting on
a particular matter rests with individual Members, rather than the Speaker or the
Committee. However, general ethical principles and historical practice provide
specific guidance as to the limited circumstances when it is advisable that a
Member abstain from voting on a particular matter. Among these principles is that
Members may not use their congressional position for personal financial benefit.
General Requirement That Members Vote on Questions Before the House
Certain matters go to the very heart of a Member‘s official responsibilities.
Chief among them is voting on legislation. House Rule 3 provides:
90
A number of Members receive earned income from services they rendered in the past, such
as payments from a pension plan, or, for example, in the case of a Member who had been an
insurance agent, renewal commissions generated by policies that he or she sold prior to becoming a
Member.
91
While Members and senior staff are generally prohibited from receiving income for any
consulting services, there is an exception for political consulting for a candidate, a political party, or
a Member‘s leadership PAC.
92
House Rules and Manual, supra
note 31, § 672.
234 HOUSE ETHICS MANUAL
1. Every Member . . . shall vote on each question put, unless he
has a direct personal or pecuniary interest in the event of such
question.
2. (a) A Member may not authorize any other person to cast his
vote or record his presence in the House or the Committee of the Whole
House on the state of the Union.
(b) No other person may cast a Member‘s vote or record a
Member‘s presence in the House or the Committee of the Whole House
on the state of the Union.
In the 100
th
Congress, prior to the adoption of this rule, the House
reprimanded a Member for allowing another to vote on the floor in his place. In
recommending disciplinary action, the Standards Committee expressed its firm
belief that ―nothing is more sacred to the democratic process than each person
casting his own vote.‖
93
Voting and Other Activities on Matters of Personal Interest
No statute or rule requires the divestiture of private assets or holdings by
Members or employees of the House upon entering their official position. Since
legislation considered by Congress affects such a broad spectrum of business and
economic endeavors, a Member of the House may be confronted with the possibility
of voting on legislation that would have an impact upon a personal economic
interest. This may arise, for example, where a bill authorizes appropriations for a
project for which the contractor is a corporation in which the Member is a
shareholder, or where a Member holds a kind of municipal security for which a bill
would provide federal guarantees.
Longstanding House precedents have not found such interests to warrant
abstention under the above-quoted House Rule that instructs Members to vote on
each question presented unless they have ―a direct personal or pecuniary interest in
the event of such question.‖ Rather, it has generally been found that ―where
legislation affected a class as distinct from individuals, a Member might vote.‖
94
The rule has been explained as follows:
It is a principle of ‗immemorial observance‘ that a Member
should withdraw when a question concerning himself arises; but it has
been held that the disqualifying interest must be such as affects the
Member directly, and not as one of a class. In a case where question
93
House Comm. on Standards of Official Conduct,
In the Matter of Rep. Austin J. Murphy
, H.
Rep. 100-485, 100
th
Cong., 1
st
Sess. 3 (1987).
94
See
5
Hinds‘ Precedents of the House of Representatives
§ 5952, at 504 (1907) (hereinafter
―
Hinds‖
).
Outside Employment and Income
235
affected the titles of several Members to their seats, each refrained
from voting in his own case, but did vote on the identical cases of his
associates. While a Member should not vote on the direct questions
affecting himself, he has sometimes voted on incidental questions.
95
Thus, Members holding stock in national banks have voted on legislation
―providing a national currency and to establish free banking‖ since Members ―do not
have that interest separate and distinct from a class, and, within the meaning of
the rule, distinct from the public interest.‖
96
Veterans in the House have properly
voted on questions of pay and pensions in the military since such Members ―did not
enjoy the benefit arising from the legislation distinct and separate from thousands
of men in the country who had held similar positions.‖
97
The Speaker would not
rule that a Member owning stocks in breweries or distilleries should be disqualified
in voting on the proposed amendment to the Constitution concerning prohibition of
the manufacture and sale of liquor.
98
Members who were stockholders in or had
interests in import businesses voted on a tariff bill affecting the import business
since ―the bill before us affects a very large class. . . . The Chair would be surprised
if there were not hundreds of thousands of American citizens who were stockholders
in these companies. . . .‖
99
Although the rule has been found not to apply when a Member is affected
only as a member of a class rather than as an individual, some precedents in the
House have indicated that the rule might apply if legislation affects only one
specific business or property, rather than a class or group of businesses or
properties. Thus, although the Speaker found that a Member interested in
breweries or distilleries could vote on ―prohibition‖ because it affected a class of
businesses, the Speaker specifically noted,
[n]ow, if there was a bill here affecting one institution, if you call it
that, the Chair would be inclined to rule that a Member interested in it
pecuniarily could not vote, but where it affects a whole class he can
vote.
100
Similarly, in ruling that Members with interests in import businesses could
vote on a tariff bill, the Speaker observed, ―Certainly it would not be within the
power of the Chair to deny a Member the right to vote except in the case where the
95
House Rules and Manual
,
supra
note 31, § 673 (citations omitted).
96
5
Hinds
,
supra
note 94, § 5952, at 503-504.
97
Id.
at 504.
98
8
Cannon‘s Precedents of the House of Representatives
§ 3071, at 620 (1936).
99
Id.
§ 3072, at 623.
100
Id.
§ 3071, at 621.
236 HOUSE ETHICS MANUAL
legislation applied to one and only one corporation.‖
101
In the case of an amendment
to a bill specifically relating to the Central Pacific Railroad, the Speaker suggested
that a stockholder Member should disqualify himself from voting, although a ruling
disqualifying such Member was not made by the Chair:
In this case if the gentleman from Massachusetts be a
stockholder in that road the Chair would rule he had no right to vote.
It differs from the case of national banks, which has been brought up
in several instances, in the fact that this is a single corporation, and is
not of general interest held throughout the country by all classes of
people in all communities. . . . But if a stockholder in a single railroad
corporation, as in this case, has his vote challenged it would be the
duty of the Chair to hold, if he is actually a stockholder of the road,
that he has no right to vote. * * * The Chair so decides without any
knowledge in this particular case. It is for the gentleman from
Massachusetts whose delicacy the Chair knows and cheerfully
recognizes to relieve the House from any embarrassment on that
question.
102
As shown by more recent applications of the rule, however, even where one
corporation or entity is primarily affected by legislation, a Member‘s interest in
such corporation or entity might not be found to be a disqualifying interest in the
subject matter. As the Standards Committee noted in a report in a disciplinary
case:
House precedents establish the rule that ―where the subject
matter before the House affects a class rather than individuals, the
personal interest of Members who belong to the class is not such as to
disqualify them from voting.‖ This principle was followed by the
House as recently as December 2, 1975, when the question arose
whether House Rule VIII(1) [currently numbered as House Rule 3, cl.
1] would disqualify Members holding New York City securities from
voting on a bill to provide federal guarantees for these securities.
Speaker Albert ruled that a point of order to disqualify Members
holding such securities would not be sustained . . . .
103
The Committee found in that case that the respondent‘s ownership of 1,000
shares of common stock in a defense contractor corporation, out of more than
4,550,000 shares outstanding, ―was not, under House precedents, sufficient to
101
Id.
§ 3072, at 623.
102
5
Hinds
,
supra
note 94, § 5955, at 506.
103
H. Rep. 94-1364,
supra
note 2, at 15.
Outside Employment and Income
237
disqualify him from voting on‖ an appropriations bill authorizing funds for a project
for which the corporation was under contract with the government to perform.
104
In addition, House precedents favor ―the idea that there is no authority in the
House to deprive a Member of the right to vote.‖
105
Given the size of today‘s
districts, when a Member refrains from voting, well over half a million people are
denied a voice on the pending legislation.
However, while the Standards Committee has endorsed the principle that
―each individual Member has the responsibility of deciding for himself whether his
personal interest in pending legislation requires that he abstain from voting,‖
106
it
did so after investigating allegations (among others) that a Member had violated
the rule by not refraining from voting in a particular instance. The Committee
cleared the Member of this charge, but it has occasionally advised Members, in
private advisory opinions, that it would be inappropriate for them to vote or to
introduce legislation directly affecting significant and uniquely held financial
interests. At times a question arises as to whether the ―class‖ to which a Member
belongs with regard to a piece of legislation – such as, for example, the class of
owners of a particular area of land that would be acquired by the government under
the legislation – is sufficiently large to warrant the Member voting under the
authorities set out above.
The provisions of House Rule 3, clause 1, as discussed in this section, apply
only to Member voting on the House floor. They do not apply to other actions that
Members may normally take on particular matters in connection with their official
duties, such as sponsoring legislation, advocating or participating in an action by a
House committee, or contacting an executive branch agency. Such actions entail a
degree of advocacy above and beyond that involved in voting, and thus a Member‘s
decision on whether to take any such action on a matter that may affect his or her
personal financial interests requires added circumspection. Moreover, such actions
may implicate the rules and standards, discussed above, that prohibit the use of
one‘s official position for personal gain. Whenever a Member is considering taking
any such action on a matter that may affect his or her personal financial interests,
the Member should first contact the Standards Committee for guidance. A Member
should also exercise caution before accepting a position on the board of an
organization that is subject to the oversight of a committee on which the Member
sits.
104
Id.
at 14-16.
105
House Rules and Manual
,
supra
note 31, § 672, at 374;
see also
5
Hinds
,
supra
note 94, §
5956, at 506.
106
H. Rep. 94-1364,
supra
note 2, at 15-16;
see also
121
Cong. Rec.
38135 (Dec. 2, 1975).
238 HOUSE ETHICS MANUAL
In addition, as described earlier in this chapter, House Rule 27, clause 4
imposes a new, additional requirement that Members who are negotiating for
future employment ―shall recuse‖ themselves ―from any matter in which there is a
conflict of interest or an appearance of a conflict for that Member.‖ Historical
practice has established that, with regard to House Rule 3, there is no authority to
force a House Member to abstain from voting, and the decision on whether
abstention from voting was necessary has been left for individual Members to
determine for themselves under the circumstances.
107
At a minimum, Members
faced with a vote on a matter that directly impacts a private entity with which they
are negotiating would have difficulty balancing the duty they owe to their
constituents with the recusal provisions of Rule 27. Members who wish to avoid
such conflicts are encouraged to delay any negotiations for future employment until
after their successor has been elected.
Certification of No Financial Interest in Fiscal Legislation
The House Rules adopted at the beginning of the 110
th
Congress added a new
provision in the Code of Official Conduct requiring Members to make an affirmation
regarding their financial interests to the committee of jurisdiction when requesting
certain types of fiscal legislative provisions. Specifically, House Rule 23, clause 17
requires any Member who ―requests a congressional earmark, a limited tax benefit,
or a limited tariff benefit in any bill or joint resolution (or accompanying report) or
in any conference report on a bill or joint resolution (or an accompanying joint
statement of managers)‖ to certify that neither the Member nor the Member‘s
spouse have a ―financial interest in such congressional earmark or limited tax or
tariff benefit.‖
The committees with jurisdiction over earmark, tax, and tariff benefit
requests are responsible for determining whether any particular spending provision
triggers the certification required by the rule. A Member who requests an earmark
or other provision covered by the rule must provide a written statement to the
chairman and ranking member of the committee of jurisdiction of the bill,
resolution, or report that contains the following information:
The name of the Member;
In the case of an earmark, the name and address of the intended recipient or
if there is no intended recipient, the location of the activity;
In the case of a limited tax or tariff benefit, the name of the beneficiary;
The purpose of the earmark or limited tax or tariff benefit; and
107
See
5
Hinds
,
supra
note 94
,
§§ 5950, 5952 at 502, 503-04.
Outside Employment and Income
239
A certification that both the Member and the Member‘s spouse have no
financial interest in the earmark or limited tax or tariff benefit.
Whether a Member or a Member‘s spouse has a financial interest in an
earmark will most frequently depend on the specific facts and circumstances
regarding both the proposed provision and the personal financial circumstances of
the Member and spouse. In the great majority of cases Members should readily be
able to determine whether they have a financial interest in an earmark. Members
are encouraged to consult the Committee for guidance with any fact-specific
questions they may have.
The Committee nevertheless provides the following general guidance. As a
general matter, a financial interest would exist in an earmark when it would be
reasonable to conclude that the provision would have a direct and foreseeable
108
effect on the pecuniary interests of the Member or the Member‘s spouse. Such
interests may relate to financial assets, liabilities, or other interests of the Member
and spouse, such as investments in stocks, bonds, mutual funds, or real estate. A
financial interest may also derive from a salary, indebtedness, job offer, or other
similar interest.
A financial interest would not include remote, inconsequential, or speculative
interests. For example, if a Member proposed an earmark or tax or tariff benefit
assisting a certain company, the Member generally would not be considered to have
a financial interest in the provision by owning shares in a diversified mutual fund,
employee benefit plan (
e.g.
, the Thrift Savings Plan or similar state benefit plan), or
pension plan that, in turn, holds stock in the company. However, a Member‘s direct
ownership of stock, even a small number of shares in a widelyheld company, likely
would constitute a financial interest under Rule 23.
A contribution to a Member‘s principal campaign committee or leadership
PAC generally would not constitute the type of ―financial interest‖ referred to in the
rule. Nevertheless, a political contribution tied to an official action may raise other
considerations. It is impermissible to solicit or accept a campaign contribution that
is linked to any action taken or asked to be taken by a Member in the Member‘s
official capacity – such as an earmark request that a Member has made or been
asked to make. Accepting a contribution under these circumstances may implicate
the federal gift statute or the criminal provisions on illegal gratuities or bribery,
which are described in Chapters 2 and 4 on gifts and campaign activity,
respectively.
108
An effect is foreseeable if it is anticipated or predictable. For additional guidance,
see
5
C.F.R. § 2640.103(a)(3) (defining the term ―predictable‖ as ―real, as opposed to a speculative,
possibility that the matter will affect the financial interest‖).
240 HOUSE ETHICS MANUAL
Post-Employment Restrictions
Applicability of the Restrictions
The Ethics Reform Act of 1989 enacted, for the first time, post-employment
restrictions on Members, the elected officers, and certain employees of the House
and Senate, and certain officers and employees of other legislative branch offices.
These restrictions are set out in a criminal statute, 18 U.S.C. § 207, and they took
effect in 1991. The restrictions were amended slightly by Honest Leadership and
Open Government Act of 2007,
109
which was enacted during the 110
th
Congress.
House staff who are employed in a Member, committee, or leadership office
are covered by the restrictions if they were paid, for a period of 60 days or more in
the one-year period preceding termination of their House employment, at a rate
equal to or greater than 75% of Members‘ pay (18 U.S.C. § 207(e)(7)(A)). In 2008
the basic rate of Members‘ pay is $169,300, and thus the post-employment threshold
for employees who leave their House employment in 2008 is $126,975. The
threshold for other years is available from the Standards Committee. For
employees of other legislative offices,
110
the basic rate of pay triggering the
restrictions is level IV of the Executive Schedule, which for 2008 is $149,000.
111
Because an employee becomes subject to the restrictions where the employee‘s pay
is at the threshold rate for a period as brief as two months, a House employee may
become subject to the restrictions as a result of temporary changes in the base rate
of pay, such as those made to pay a bonus.
112
The post-employment restrictions of 18 U.S.C. § 207 are the only such
restrictions applicable to former House employees. House employees whose pay
109
Honest Leadership and Open Government Act of 2007,
supra
note 45.
110
―[O]ther legislative offices‖ include employees of the Architect of the Capitol, United
States Botanic Garden, Government Accountability Office, Government Printing Office, Library of
Congress, Office of Technology Assessment, Congressional Budget Office, and Capitol Police. It also
includes any other House legislative branch office not covered by the other provisions, such as the
Clerk, Parliamentarian, Office of Legal Counsel, and Chief Administrative Officer.
See
18 U.S.C.
§ 207(e)(9)(G).
111
18 U.S.C. § 207(e)(6), (e)(7)(B).
112
Regarding the post-employment implications of paying such an increase in the form of
―lump sum‖ payments, rather than through a temporary adjustment in the employee‘s regular
salary, see Chapter 7 on Staff Rights and Duties. Briefly stated, the Committee determined that
lump sum payments, when properly used by an employing office, do not constitute part of the
recipient‘s ―rate of basic pay.‖ Key factors in making this determination are that lump sum
payments are not treated as salary for purposes of employment benefits, do not count in determining
the maximum amount an employee can contribute to the Thrift Savings Plan, or the amount of life
insurance that the employee may purchase, and likewise they do not count in determining an
employee‘s ―high three‖ years for purposes of calculating retirement benefits.
Outside Employment and Income
241
was below the threshold are not subject to the post-employment restrictions set out
in the statute, and no other provision of federal statutory law or the House Rules
establishes any comparable restrictions on post-employment activities.
Section 103(a) of the Honest Leadership and Open Government Act requires
the Clerk of the House to provide all departing Members and covered employees
(
i.e.
, those employees who are subject to the post-employment restrictions) with a
letter notifying the individual ―of the beginning and ending date of the prohibitions
that apply.‖ Section 103(b) of the Act mandates that the same information be
available on a public internet site.
Set out below is a brief summary of the provisions of 18 U.S.C. § 207 as
applicable to House Members, officers, and employees. The Standards Committee
has also prepared a pair of advisory memoranda – one for House Members and
officers and one for House employees – that detail the applicability and scope of the
restrictions of 18 U.S.C. § 207. Copies of those memoranda are available from the
Standards Committee or its website. Anyone wishing a detailed explanation of the
statute should refer to those advisory memoranda.
Scope of the Restrictions
Section 207 imposes a one-year ―cooling-off period‖ on the former Members,
officers and covered employees. As a general matter, for one year after leaving
office, those individuals may not seek official action on behalf of anyone else by
either communicating with or appearing before specified current officials with the
intent to influence them. Thus,
A former Member may not seek official action from any current Member,
officer, or employee of either the Senate or the House, or from any current
employee of any other legislative office (§ 207(e)(1)(B)).
A former elected officer of the House may not seek official action from any
current Member, officer, or employee of the House (§ 207(e)(1)(B)).
A covered former employee on the personal staff of a Member may not seek
official action from that Member or from any of the Member‘s current
employees (§ 207(e)(3)).
A covered former employee of a committee may not seek official action from
any current Member or employee of the employing committee or from any
Member who was on the committee during the last year that the former
employee worked there (§ 207(e)(4)).
A covered former employee on the leadership staff (
i.e.
, an employee of any
leadership office) may not seek official action from any current Member of the
242 HOUSE ETHICS MANUAL
leadership of the House
113
or any current leadership staff employees
(§ 207(e)(5)).
A covered former officer or employee of any other legislative office may not
seek official action from a current officer or employee of that legislative office
(§ 207(e)(6)).
114
For the purposes of the statute, a detailee is deemed to be an employee of
both the entity from which he or she comes and the entity to which the individual is
detailed (§ 207(g)).
These restrictions bar certain types of contacts with certain categories of
officials, basically former colleagues and those most likely to be influenced on the
basis of the former position. The law focuses on communications and appearances.
By contrast, if a former official plays a background role, does not appear in person
or convey his or her name on any communications, the law does not appear to
prohibit that person from advising those who seek official action from the Congress.
Such a background role does not pose the risk of improper influence since the
current officials are not even aware of the former official‘s participation.
115
The law
does, however, absolutely preclude one set of activities regardless of whether the
former official acts openly or behind the scenes. None of the officials subject to the
limitations described above may represent, aid, or advise a foreign government or
foreign political party before any federal official (including any Member of Congress)
with the intent to influence a decision of such official in carrying out his or her
official duties (§ 207(f)).
Exceptions
Under 18 U.S.C. § 207(j), these restrictions do not apply to official actions
taken by employees or officials of the following: the United States government; the
District of Columbia; state and local governments; accredited, degree-granting
institutions of higher education; and hospitals or medical research organizations.
113
The ―leadership‖ of the House consists of the Speaker; majority leader; minority leader;
majority whip; minority whip; chief deputy majority whip; chief deputy minority whip; chairman of
the Democratic Steering Committee; chairman and vice chairman of the Democratic Caucus;
chairman, vice chairman, and secretary of the Republican Conference; chairman of the Republican
Research Committee; chairman of the Republican Policy Committee; and any similar position
created after the statute took effect. 18 U.S.C. § 207(e)(9)(L).
114
For these employees, post-employment restrictions do not apply unless their rate of basic
pay equaled or exceeded that in effect for level IV of the Executive Schedule ($149,000 in 2008). 18
U.S.C. § 207(e)(7)(B).
115
Former officials who are lawyers should consult their local bar association concerning the
application of rules governing their involvement in matters in which they participated personally
and substantially in their official capacity.
Outside Employment and Income
243
They further do not preclude activities on behalf of international organizations in
which the United States participates where the Secretary of State certifies in
advance that such activities serve the interests of the United States. In addition,
section 207 does not prevent individuals from making uncompensated statements
based on their own special knowledge, from furnishing scientific or technological
information in areas where they possess technical expertise, or from testifying
under oath. Under 18 U.S.C. § 207(e)(8), individuals are also permitted to contact
the Office of the Clerk regarding compliance with lobbying disclosure requirements
under the Lobbying Disclosure Act.
Penalties
Violation of § 207 is a felony, carrying penalties of imprisonment, fines, or
both. Section 216 of Title 18 authorizes imprisonment for up to one year (or up to
five years for willfully engaging in the proscribed conduct). Additionally, an
individual may be fined up to $50,000 for each violation or the amount received or
offered for the prohibited conduct, whichever is greater. The statute further
authorizes the Attorney General to seek an injunction prohibiting a person from
engaging in conduct that violates the act.
The provisions of 18 U.S.C. § 207 summarized above govern the conduct of
former Members, officers, and employees only, and do not apply to the conduct of
current Members, officers, or employees. However, current Members and staff who
receive improper contacts should be aware that, depending on the circumstances,
they may be subject to House disciplinary action. In a Standards Committee
disciplinary case that was completed in the 106
th
Congress, a Member admitted to
engaging in several forms of conduct that violated the requirement of the House
Code of Official Conduct that each Member and staff person ―conduct himself at all
times in a manner that shall reflect creditably on the House.‖ (House Rule 23, cl. 1).
One of those violations was his engaging in a pattern and practice of knowingly
allowing his former chief of staff to appear before and communicate with him in his
official capacity during the one-year period following the termination of her House
employment ―in a manner that created the appearance that his official decisions
might have been improperly affected.‖
116
A Member or employee who has any concerns about the applicability of the
post-employment restrictions to his or her proposed conduct should contact the
Standards Committee for specific guidance. While Committee interpretations of 18
U.S.C. § 207 are not binding on the Justice Department, those interpretations are
based on the Committee‘s analysis of the terms and purposes of the statute, as well
116
House Comm. on Standards of Official Conduct,
Summary of Activities, One Hundred
Sixth Congress
, H. Rep. 106-144, 106
th
Cong., 2d Sess., at 10 (2001).
244 HOUSE ETHICS MANUAL
as any applicable opinions or guidance of the Justice Department or the U.S. Office
of Government Ethics of which the Committee is aware.
117
Employment Considerations for Spouses of Members and Staff
Being married to a House Member or staff person does not, of course,
preclude one from earning a salary. Nevertheless, certain aspects of a spouse‘s
employment may have implications for the Member or staff person.
118
Federal law, at 5 U.S.C. § 3110, generally prohibits a federal official from
hiring or promoting a relative, including a spouse. Prior to the 107
th
Congress, if a
House employee married his or her employing Member, the employee could remain
on the Member‘s personal or committee staff, but could not thereafter receive any
promotions or raises other than cost-of-living or other across-the-board adjustments.
However, at the beginning of that Congress in 2001, the House amended the Code of
Official Conduct to provide that a Member may not retain his or her spouse in a
paid position, and that a House employee may not accept compensation for work for
a committee on which his or her spouse serves as a member.
119
Accordingly, as a
general rule, a Member‘s spouse may work in the Member‘s office on an unpaid
basis only.
120
Spouses who accept civil service positions with federal, state, or local
governments should be aware of possible limitations relating to their outside
political activity under the Hatch Act
121
or a similar law of the employing authority.
An individual employed in such a position may be limited in the campaign efforts
that may be made on behalf of his or her spouse. A spouse holding such a
governmental position should consult with his or her supervising ethics office to
determine the propriety of proposed campaign activities.
Neither federal law nor House rules specifically precludes the spouse of a
Member or staff person from engaging in any activity on the ground that it could
create a conflict of interest with the official‘s congressional duties. However, House
rules and statutory provisions impute to a Member or staff person certain benefits
117
It should be noted that one court held that it is a complete defense to a prosecution for
conduct assertedly in violation of a related federal criminal strict-liability statute (18 U.S.C. § 208) that
the conduct was undertaken in good faith reliance upon erroneous legal advice received from the
official‘s supervising ethics office.
United States v. Hedges
, 912 F.2d 1397 (11th Cir. 1990).
118
See generally
Marc E. Miller,
Politicians and Their Spouses‘ Careers
(1985).
119
House Rule 23, cl. 8(c). The provision by its terms does not apply to a spouse whose
employment predates the 107
th
Congress.
120
See Chapter 7 for a further discussion of the law against nepotism.
121
5 U.S.C. §§ 7321-7326, 1501-1508.
Outside Employment and Income
245
that are received by his or her spouse. Thus, a question may arise as to whether the
official is improperly benefiting as a result of the spouse‘s employment.
The rules and standards that prohibit the use of one‘s official position for
personal gain, which are set out in this chapter, are fully applicable to Members
and staff persons with regard to their spouse‘s employment. Specifically, a
provision of the House Code of Official Conduct, prohibits a Member from receiving
any compensation, or allowing any compensation to accrue to the Member‘s
beneficial interest, from any source as a result of an improper exercise of official
influence (House Rule 23, cl. 3). Additionally, the Code of Ethics for Government
Service (¶ 5) admonishes officials never to accept benefits for themselves or their
families ―under circumstances which might be construed by reasonable persons as
influencing the performance‖ of official duties. The income received by a spouse
from employment usually accrues, albeit indirectly, to a Member‘s interest.
Nonetheless, neither of these provisions is triggered by a spouse‘s employment
unless a Member or staff person exerts influence or performs official acts in order to
obtain compensation for, or as a result of compensation paid to, his or her spouse.
Two other provisions of the Code of Ethics for Government Service are also
applicable to a Member or staff person with regard to the employment activities of
one‘s spouse or any other family member. These are provisions that prohibit a
government official from –
Using ―any information coming to him confidentially in the performance of
governmental duties as a means of making private profit‖ (¶ 8); and
―[D]iscriminat[ing] unfairly by the dispensing of special favors or privileges to
anyone, whether for remuneration or not‖ (¶ 5).
The prohibition against doing any special favors for anyone in one‘s official
capacity is a fundamental standard of conduct, and it applies to an official‘s conduct
with regard to not only his or her spouse or other family members, but more broadly
to any person.
Special caution must be exercised when the spouse of a Member or staff
person, or any other immediate family member, is a lobbyist. At a minimum, such
an official should not permit the spouse to lobby either him- or herself or any of his
or her subordinates. When the spouse of a staff person is a lobbyist, the staff
person should inform his or her employing Member before the spouse or anyone
with the spouse‘s firm makes a lobbying contact with anyone on the staff, and no
such contacts should occur without the Member‘s approval. Furthermore, a recently
enacted provision of the House rules (House Rule 25, clause 7) requires that the
Member prohibit his or her staff from having any lobbying contacts with that
247
FINANCIAL DISCLOSURE
Overview
The private financial interests and investments of Members and employees,
as well as those of candidates who are seeking election to the House of
Representatives, may present potential conflicts of interest with official duties. The
New York City Bar Association undertook a comprehensive study of Congressional
ethics beginning in 1967. The Bar commission‘s study found that
[t]he most serious charge which can be made against a public official‘s
ethics is that he betrays the public‘s trust in him by using the office to
advance his own financial interests at the public‘s expense. . . . Much
distrust of government flows from ambiguous circumstances where
there is ground for suspicion that officials are promoting their own
welfare rather than the public‘s.
1
The financial disclosure required of House Members, officers, senior
employees, and candidates was instituted in part to address this concern.
In addition, all Members, officers, and employees are prohibited from
improperly using their official positions for personal gain. As a general matter,
however, Members and employees need not divest themselves of assets upon
assuming their positions, nor must Members disqualify themselves from voting on
issues that generally affect their personal financial interests. Instead, public
financial disclosure provides a means of monitoring and deterring conflicts.
To accomplish this disclosure, Members, officers, candidates, and certain
employees must file annual Financial Disclosure Statements, summarizing
financial information concerning themselves, their spouses, and dependent children.
Among other information, these statements must disclose outside compensation,
investments and assets, and business transactions.
This chapter is intended to provide only a basic overview of the financial
disclosure requirements. Each year, the Committee on Standards of Official
Conduct publishes comprehensive instruction booklets detailing the instructions for
completing a Financial Disclosure Statement. One booklet covers the instructions
for Form A, which is used by current and terminating Members, officers, and
employees, and the other is for Form B, which is used by candidates for the House
1
Special Comm. on Congressional Ethics, Ass‘n of the Bar of the City of New York,
Congress
and the Public Trust
34 (J. Kirby, Jr., exec. director 1970) (hereinafter ―
Congress and the Public
Trust
‖).
248 HOUSE ETHICS MANUAL
and covered new House employees. Copies of the current instruction booklets are
available from the Standards Committee or the Legislative Resource Center.
Statutes and Rules Governing Disclosure of Financial Interests
No federal statute, regulation, or rule of the House absolutely prohibits a
Member or House employee from holding assets that might conflict with or
influence the performance of official duties. However, acting partly to address the
issues identified by the Bar Commission, Congress passed the Ethics in
Government Act of 1978 (―EIGA‖),
2
which mandated annual financial disclosure by
all senior federal personnel, including all Members and some employees of the
House. The Ethics in Government Act, as amended, provides the statutory basis for
the disclosure currently required of House Members, candidates, and senior House
employees.
3
House Rule 26 adopts Title I of EIGA as a rule of the House.
4
House Rule 26,
clause 1 requires the Clerk of the House to publish a report each August 1 compiling
all Member Financial Disclosure Statements filed by June 15 of that year.
In addition, statutes and House rules restrict income from outside financial
interests or govern aspects of the business dealings or investments of House
Members and employees, as follows:
Members and employees of Congress may not use their official positions for
personal gain;
5
Members may not enter into or enjoy benefits under contracts or agreements
with the United States;
6
Members and employees should not engage in any business with the federal
government, either directly or indirectly, that is inconsistent with the
conscientious performance of their congressional duties;
7
Members and employees may not receive any compensation or allow any
compensation to accrue to their beneficial interests from any source if its
2
Pub. L. 95-521, 92 Stat. 1824 (Oct. 26, 1978). Legislative branch disclosure requirements
were then codified at 2 U.S.C. § 701
et seq.
3
See
Ethics in Government Act of 1978, as amended, 5 U.S.C. app. 4 § 101
et seq.
4
House Rule 26(2).
5
See
House Rule 23, cl. 3; Code of Ethics for Government Service ¶ 5, H. Con. Res. 175, 72
Stat., Part 2, B12 (1958).
6
18 U.S.C. § 431.
7
Code of Ethics for Government Service,
supra
note 5, at ¶ 7.
Financial Disclosure
249
receipt would occur by virtue of influence improperly exerted from a position
in the Congress;
8
Members and employees of the House may not accept benefits under
circumstances that might be construed by reasonable persons as influencing
the performance of their governmental duties;
9
and
Members and employees should never use any information received
confidentially in the performance of governmental duties as a means for
making private profit.
10
In its very first case, in the 94
th
Congress, the Standards Committee found
that a Member had violated the prohibition on the use of one‘s official position for
personal gain when he sought benefits from an organization after he had actively
promoted the establishment of that organization in his official capacity. The
Committee found that the Member had worked, through his congressional office, to
help establish a bank on a military base. During the time he was actively assisting
in that effort, he approached organizers of the bank and inquired about the
possibility of buying stock in it.
11
He subsequently purchased 2,500 shares of the
bank‘s privately held stock. The Committee noted that ―[i]f an opinion had been
requested of this Committee in advance about the propriety of the investment, it
would have been disapproved.‖
12
The Member was also found to have used public
office for private gain in that he had sponsored legislation to remove a reversionary
interest and restrictions on land in which he had a personal financial interest.
13
The Member was reprimanded by the House.
14
Policies Underlying Disclosure
Members, officers, and certain employees must annually disclose personal
financial interests, including investments, income, and liabilities.
15
Financial
disclosure provisions were enacted to monitor and to deter possible conflicts of
interest due to outside financial holdings. Proposals for divestiture of potentially
conflicting assets and mandatory disqualification of Members from voting were
8
House Rule 23, cl. 3.
9
Code of Ethics for Government Service,
supra
note 5, at ¶ 5.
10
Id.
at ¶ 8.
11
See
House Comm. on Standards of Official Conduct,
In the Matter of a Complaint against
Representative Robert L.F. Sikes
, H. Rep. 94-1364, 94
th
Cong., 2d Sess. 3 (1976).
12
Id.
at 4.
13
Id.
at 3-4.
14
122
Cong. Rec.
24379-83 (July 29, 1976).
15
Title I of the Ethics in Government Act of 1978, as amended, 5 U.S.C. app. 4 §§ 101-111.
250 HOUSE ETHICS MANUAL
rejected as impractical or unreasonable.
16
Such disqualification could result in the
disenfranchisement of a Member‘s entire constituency on particular issues.
17
A
Member may often have a community of interests with the Member‘s constituency,
and may arguably have been elected because of and to serve these common
interests, and thus would be ineffective in representing the real interests of the
constituents if the Member was disqualified from voting on issues touching those
matters of mutual concern. In rare instances, the House rule on abstaining from
voting may apply where a direct personal interest in a matter exists.
18
Members of Congress enter public service owning assets and having private
investment interests like other citizens. Members should not ―be expected to fully
strip themselves of worldly goods.‖
19
Even a selective divestiture of potentially
conflicting assets could raise problems for a legislator. Unlike many officials in the
executive branch, who are concerned with administration and regulation in a
narrow area, a Member of Congress must exercise judgment concerning legislation
across the entire spectrum of business and economic endeavors. Requiring
divestiture may also insulate legislators from the personal and economic interests
held by their constituencies, or society in general, in governmental decisions and
policy.
As noted by the Bipartisan Task Force on Ethics:
The problem of conflicts of interest involves complex and
difficult issues, especially with respect to the legislative branch. A
conflict of interest is generally defined as a situation in which an
official‘s private financial interests conflict or appear to conflict with
the public interest. Some conflicts of interest are inherent in a
representative system of government, and are not in themselves
necessarily improper or unethical. Members of Congress frequently
maintain economic interests that merge or correspond with the
interests of their constituents. This community of interests is in the
nature of representative government, and is therefore inevitable and
unavoidable.
At the other extreme, a conflict of interest becomes corruption
when an official uses his position of influence to enhance his personal
financial interests. Between these extremes are those ambiguous
circumstances which may create a real or potential conflict of interest.
The problem is identifying those instances in which an official allows
16
See
House Comm‘n on Admin. Review,
Financial Ethics
, H. Doc. 95-73, 95
th
Cong., 1
st
Sess.
9-10 (1977) (hereinafter ―
Financial Ethics
‖).
17
Congress and the Public Trust
,
supra
note 1, at 40.
18
House Rule 8, cl. 1; see Chapter 5 of this Manual for further discussion of this provision.
19
Congress and the Public Trust
,
supra
note 1, at 47.
Financial Disclosure
251
his personal economic interests to impair his independence of
judgment in the conduct of his public duties.
20
Each situation must be reviewed on a case-by-case basis to determine if an actual
conflict of interest exists. The Standards Committee has admonished all Members
―to avoid situations in which even an inference might be drawn suggesting improper
action.‖
21
Thus, public disclosure of assets, financial interests, and investments has
been required as the preferred method of regulating possible conflicts of interest of
Members of the House and certain congressional staff. Public disclosure is intended
to provide the information necessary to allow Members‘ constituencies to judge their
official conduct in light of possible financial conflicts with private holdings. Review
of a Member‘s financial conduct occurs in the context of the political process. As
stated by the House Commission on Administrative Review of the 95
th
Congress in
recommending broader financial disclosure in lieu of other restrictions on
investment income:
In the case of investment income, then, the Commission‘s belief
is that potential conflicts of interest are best deterred through
disclosure and the discipline of the electoral process. Other approaches
are flawed both in terms of their reasonableness and practicality, and
threaten to impair, rather than to protect, the relationship between the
representative and the represented.
22
The House has required public financial disclosure by rule since 1968, and by
statute since 1978. The Commission on Administrative Review noted: ―The
objectives of financial disclosure are to inform the public about the financial
interests of government officials in order to increase public confidence in the
integrity of government and to deter potential conflicts of interest.‖
23
The
Bipartisan Task Force on Ethics cited two further goals underlying statutory
disclosure requirements: (1) Requiring disclosure of only those items that are
relevant to potential conflicts of interest; and (2) developing reporting requirements
that avoid unnecessary invasions of privacy or excessively burdensome
recordkeeping. In short, the financial disclosure requirements must effectively
20
House Bipartisan Task Force on Ethics,
Report on H.R. 3660
, 101
st
Cong., 1
st
Sess. 22
(Comm. Print, Comm. on Rules 1989),
reprinted in
135
Cong. Rec.
H9253, H9259 (daily ed. Nov. 21,
1989) (hereinafter ―
Bipartisan Task Force Report‖
).
21
House Comm. on Standards of Official Conduct,
Investigation of Financial Transactions
Participated in and Gifts of Transportation Accepted by Representative Fernand J. St Germain
, H.
Rep. 100-46, 100
th
Cong., 1
st
Sess. 3, 9, 43 (1987).
22
Financial Ethics
, H. Doc. 95-73,
supra
note 16, at 9.
23
Id.
at 4.
252 HOUSE ETHICS MANUAL
balance the privacy rights of the reporting individual with the governmental
interests in informing the public and deterring conflicts of interest.
24
Specific Disclosure Requirements
EIGA mandated annual financial disclosure by all senior federal personnel,
including all Members and some employees of the House.
25
The Ethics Reform Act
of 1989
26
substantially revised these provisions and condensed what had been
different requirements for each branch into one uniform title covering the entire
federal government. As such, Financial Disclosure Statements must disclose
outside compensation, holdings, and business transactions, generally for the
calendar year preceding the filing date. In all instances, filers may disclose
additional information or explanation at their discretion.
The Standards Committee develops forms and instructions for financial
disclosure and reviews the completed statements of House Members, officers,
employees, candidates, and certain other legislative branch personnel for
compliance with applicable laws. The Clerk of the House is responsible for making
the forms available for public inspection. The discussion that follows focuses
primarily on those requirements that apply to Members, officers, and employees of
the House. The instruction booklets issued by the Standards Committee should be
consulted for specific guidance when completing a Financial Disclosure Statement.
Who Must File
All Members of the House and those House employees earning ―above GS-15,‖
that is, at least 120% of the federal GS-15 base level salary, for at least 60 days
during the calendar year must file a Financial Disclosure Statement by May 15 of
each year. For 2008, the triggering salary, referred to as the ―senior staff rate,‖ is
$114,468. Employees who are paid at this rate are termed ―senior‖ or ―covered‖
employees. Each Member‘s office must also have at least one employee who files
(this individual is referred to as the ―principal assistant‖). Thus, if a Member has
no employee on his or her personal staff who is paid at the senior staff rate, the
Member must designate at least one member of his or her staff as a principal
assistant to file. As the Committee first stated in its 1969 financial disclosure
instructions, this person will usually be an employee whose relationship with the
Member permits the person, under some circumstances, to act in the Member‘s
name or with the Member‘s authority.
24
Bipartisan Task Force Report
,
supra
note 20, at 22; 135
Cong. Rec.
H9259.
25
Pub. L. 95-521, 92 Stat. 1824 (Oct. 26, 1978). Legislative branch disclosure requirements
were then codified at 2 U.S.C. § 701
et seq.
26
Pub. L. 101-194, 103 Stat. 1716 (Nov. 30, 1989),
amended by
Pub. L. 101-280, 104 Stat. 149
(May 4, 1990), and Pub. L. 102-90, 105 Stat. 447 (Aug. 14, 1991).
Financial Disclosure
253
An individual who qualifies as a candidate for the House must file within 30
days of becoming a candidate, or on or before May 15, whichever is later, but in any
event at least 30 days before any election (including a primary) in which that
individual is seeking office. Individuals who do not qualify as candidates until
within 30 days of the election must file as soon as they do qualify. An individual
seeking office qualifies as a candidate for financial disclosure purposes by raising or
spending more than $5,000 for his or her campaign.
27
Both the office-seeker‘s own
funds and contributions from third parties count towards the threshold. An
individual who never
raises or spends more than $5,000 has no financial disclosure
obligations with the House, even if that person‘s name appears on an election ballot.
All individuals who do meet this definition must file each year that they continue to
be candidates.
Spouse and Dependent Information
In general, reporting individuals must disclose the financial interests of their
spouses and dependent children, in addition to their own.
28
Only in rare
circumstances, when the financial interest of a spouse or dependent child meets all
three standards listed below, may a filer omit disclosure of an asset:
(1) The item is the sole interest or responsibility of the spouse or
dependent child, and the reporting individual has no knowledge of the
item;
(2) The item was not in any way, past or present, derived from the
income, assets, or activities of the reporting individual; and
(3) The reporting individual neither derives, nor expects to derive, any
financial or economic benefit from the item.
29
An individual is not required to disclose financial information about a spouse
from whom he or she has separated with the intention of terminating the marriage
or providing for a permanent separation.
30
27
The ―more than $5,000‖ threshold is the same as that provided for in the Federal Election
Campaign Act as requiring registration as a candidate with the Federal Election Commission.
See
2 U.S.C. § 431(2).
28
5 U.S.C. app. 4 § 102(e)(1).
29
Id.
§ 102(e)(1)(E).
See also
House Comm. on Standards of Official Conduct,
In the Matter
of Representative Geraldine A. Ferraro
, H. Rep. 98-1169, 98
th
Cong., 2d Sess. (1984) (finding, in part,
that the Member was unable to claim spousal exemption when she derived some personal benefit –
such as payment of mortgage or household expenses – from spouse‘s employment or financial
interests).
30
5 U.S.C. app. 4 § 102(e)(2).
254 HOUSE ETHICS MANUAL
Example 1.
Member A sets up an account in his 10-year-old daughter‘s
name, into which he deposits funds that he has earmarked to pay for
her college education. Member A must disclose the account.
Example 2.
Member B‘s husband has a stock portfolio, entirely in his
own name. He uses the income from these investments to finance
family vacations and other non-routine family expenses. Member B
must disclose the contents of the stock portfolio.
Example 3.
Member C‘s wife inherits some real estate. She is the sole
owner, but C will inherit the land if his wife predeceases him. C must
disclose the property.
Income
The term ―income,‖ as defined in the EIGA, is intended to be comprehensive.
For reporting purposes, income is divided into two categories, ―earned‖ and
―unearned‖ income. Each type of income is explained more fully in this section.
Earned Income and Honoraria. ―Earned‖ income refers to compensation
derived from employment or personal efforts. Such income earned by the filer must
be disclosed when it totals $200 or more from any one source in a calendar year.
The source, type, and exact dollar amount of the reporting individual‘s earnings
must be stated.
31
A filer must report the source, but not the amount, of income
earned by a spouse when that income exceeds $1,000. Earned income of a
dependent child need not be reported, regardless of the amount.
32
While Members, officers, and covered employees may not themselves receive
honoraria,
33
reporting individuals must still disclose the source and amount of
payments that are directed to charity in lieu of honoraria. In addition, a
confidential listing of the recipient charities must be filed separately with the
Standards Committee.
34
The source and exact dollar amount of spousal honoraria
must be disclosed.
Assets and Unearned Income. ―Unearned‖ income refers to income derived
from property held for investment or the production of income, such as real estate,
stocks, bonds, savings accounts, and retirement accounts. Any asset held for such
31
Id.
§ 102(a)(1)(A).
32
Id.
§ 102(e)(1)(A).
33
See
Chapter 5 of this Manual for a discussion of the honoraria ban.
34
5 U.S.C. app. 4 § 102(a)(1)(A).
Financial Disclosure
255
an investment purpose must be disclosed if it either was worth more than $1,000 at
the close of the calendar year or it generated income of more than $200 during the
year.
35
Where the value of an item is difficult to determine, a good faith estimate of
fair market value may be used.
The identity of the property, in addition to its category of value,
36
must be
specified. Each company in which stock worth over $1,000 is held must be listed
separately. Except in limited circumstances, the filer must disclose the specific
contents of any investment account, private retirement account (
e.g.
, a 401(k) or
IRA), or education savings account (
i.e.
, a ―529 plan‖). In other words, the EIGA
requires disclosure of each asset held within such an account that meets the value
or income tests described above. Disclosure of real property should include a
description sufficient to permit its identification (
e.g.,
street address or plat and
map location).
Interest-bearing savings accounts valued at more than $1,000 must be
disclosed only if all such accounts total more than $5,000 in value. Savings
accounts include certificates of deposit, money market accounts, or any other form
of deposit in a bank, savings and loan association, credit union, or similar financial
institution. Non-interest-bearing checking accounts, on the other hand, need not be
disclosed since they produce no income. Financial interests in United States
government retirement programs (
e.g.,
the Thrift Savings Plan) need not be
reported.
Example 4.
Member D has a stock portfolio, managed by a stock
broker. Member D must disclose each stock in the portfolio that is
worth more than $1,000 at the end of the year or generates more than
$200 in income during the year.
Example 5.
Member E Lists $1,200 worth of stock in Company Z on
her Financial Disclosure Statement. Over the next year, the company
suffers losses such that it declares no dividends during the year and
E‘s stock declines in value to $900 by year‘s end. E need not disclose
her stock in Z on her next Financial Disclosure Statement. (However,
for the sake of clarity, E may wish to list her stock in Z nonetheless,
indicating a value of less than $1,000, rather than delete the asset
from her latest filing without explanation.)
35
Id.
§ 102(a)(3), (a)(1)(B).
36
Except for earned income, the exact value of financial interests need not be disclosed; only
the range within which an item falls – called the ―category of value‖ – is required.
256 HOUSE ETHICS MANUAL
Example 6.
Member F has $10,000 invested in a money market
account with a brokerage firm. The money market fund is managed by
an employee of the firm who invests the fund‘s assets in stocks.
Individual investors like F have no control over which stocks the fund
holds. F must disclose his investment in the overall fund, but he need
not list the individual stocks held within the fund‘s portfolio.
Example 7.
Member G‘s wife has an IRA worth $12,000. Member G
must disclose each asset held in the IRA that is worth more than
$1,000 at year end or that generated more than $200 in income during
the calendar year.
The holdings of and income derived from a trust or other financial
arrangement in which the reporting individual, spouse, or dependent child has a
beneficial interest in principal or income generally must be disclosed. The three
instances when such assets need not be disclosed are when they are held in (1) a
qualified blind trust, (2) a qualified diversified trust, or (3) a trust which was not
created by the beneficiary and regarding which neither the reporting individual,
spouse, nor dependent child have specific knowledge of the holdings or sources of
income.
37
Even for such trusts, the category of value of any unearned trust income
must be reported if it exceeds $200. Both qualified blind trusts and qualified
diversified trusts must be pre-approved by the Standards Committee. These
instruments are discussed in greater detail later in this chapter.
Loans made by the filer on which the filer is charging interest must be
disclosed, unless the borrower is the spouse, parent, sibling, or child of the filer.
Personal residences not producing rental income, and personal property not held
primarily for investment or the production of income (such as artwork displayed in
one‘s home) need not be reported.
Example 8.
Member H owns a vacation home, which she uses for one
month during the year. The rest of the time, she allows family
members and close friends to use it at no charge. H need not disclose
this property.
Example 9.
Member I owns a vacation home, which he uses for one
month during the year. The rest of the time, he rents it out. I must
disclose this property.
Example 10.
Member J‘s home includes a basement apartment that he
rents to a tenant for $800 a month. H must disclose this rental
37
5 U.S.C. app. 4 § 102(f)(2).
Financial Disclosure
257
income, as well as the property that generated it. The ―asset value‖ is
the value of the entire home, not just the basement apartment.
Example 11.
Member K owns an antique car worth $50,000. K never
uses the car for commercial purposes; he uses it exclusively for his
personal enjoyment. K need not disclose the car.
Transactions
The Financial Disclosure Statement must include a brief description, the
date, and category of value of any purchase, sale, or exchange of real property,
stocks, bonds, commodities, futures, or other forms of securities (including trust
assets) that exceeds $1,000.
38
The category of value to be reported is the total
purchase or sale price (or the fair market value in the case of an exchange),
regardless of any capital gain or loss on the transaction.
Stock and commodity options, futures contracts, and bonds (corporate and
government) are considered types of securities. As such, transactions in these items
are reportable. Transactions by a partnership in which the reporting individual has
an interest must be disclosed when the partnership is organized for the investment
or production of income and is not actively engaged in a trade or business. These
partnership transactions need only be reported, however, to the extent that the
filer‘s share of the transaction exceeds $1,000.
The purchase or sale of property used solely as a personal residence
(including a secondary residence not used for rental purposes) of the reporting
individual or spouse and transactions solely by and between the reporting
individual and his or her spouse or dependent children need not be disclosed.
Likewise, the opening or closing of bank accounts, the purchase or sale of
certificates of deposit, and contributions to or the rollover of IRAs and other
retirement plans need not be reported.
Example 12.
Member L sells stock in Company Z for $5,000, realizing
a $700 capital loss. L must report the $5,000 sale as a transaction. L
may add that the sale represents a loss if she so chooses, but this
information is not required.
Example 13.
Member M has a 25% interest in a partnership that buys
and sells real estate for investment purposes. The partnership buys a
piece of property for $400,000. M must disclose the partnership‘s
purchase, in the category of value reflecting his $100,000 share of the
transaction.
38
Id.
§ 102(a)(5).
258 HOUSE ETHICS MANUAL
Information regarding asset transactions is not required of congressional candidates
or new employees.
Liabilities
Personal obligations aggregating over $10,000 owed to one creditor at any
time during the calendar year, regardless of repayment terms or interest rates,
must be listed.
39
The identity (name of the creditor), type, and amount of the
liability must be stated. Except for revolving charge accounts (
i.e.
, credit cards), the
largest amount owed during the calendar year is the value to be reported. For
revolving charge accounts, the year-end balance is used; if the account balance
declines by the year‘s end to $10,000 or less, no reporting is required.
Just as personal liabilities owed to a reporting individual by certain relatives
need not be reported as assets, liabilities owed by a reporting individual to a spouse,
parent, sibling, or child of the filer or of the filer‘s spouse need not be listed.
Mortgages and home equity loans secured by a personal residence (including
secondary residences not used for rental purposes) as well as personal loans secured
by motor vehicles, household furniture, or appliances need not be disclosed as long
as the indebtedness does not exceed the purchase price of the item. Filers also need
not report contingent liabilities, such as that of a guarantor, endorser, or surety;
liabilities of a business in which the reporting individual has an interest; loans
secured by the cash value of a life insurance policy; and tax deficiencies.
Gifts
EIGA requires disclosure of gifts received during the year, from someone
other than a relative, whose aggregate value exceeds ―minimal value,‖ as defined in
the statute. For 2008, ―minimal value‖ is $335, but gifts valued below $134 need
not be counted towards this limit.
40
Gifts valued below ―minimal value‖ need not be
reported. However, because the House gift rule (House Rule 25, clause 5) limits the
value of gifts that Members, officers, and employees of the House may accept in a
calendar year from any source other than a relative or fellow Member,
41
few gifts
exceeding this dollar amount are acceptable.
Notwithstanding the limitations on gift acceptance, there are gifts valued in
excess of $335 which a House Member, officer, or employee may accept that exceed
39
Id.
§ 102(a)(4).
40
Minimal value for purposes of disclosure under EIGA is the same as that for the Foreign
Gifts and Decorations Act, 5 U.S.C. § 7342(a)(5). Pursuant to that statute, the General Services
Administration sets the minimal value every three years. Minimal value for calendar years 2008
through 2011 is $335.
See
73 Fed. Reg. 7475 (Feb. 8, 2008).
41
See Chapter 2 of this Manual for more information on the rules pertaining to gifts.
Financial Disclosure
259
the reporting threshold and for which disclosure must therefore be made on a
Financial Disclosure Statement. Examples of such gifts include gifts provided on
the basis of personal friendship, contributions to a legal expense fund, and
commemorative items that exceed the reporting threshold. As a general matter, in
each of these instances, the recipient must first seek written approval from the
Committee prior to accepting such a gift.
Example 14.
Member N obtains written permission from the
Committee to accept from a personal friend $500 in travel expenses to
attend their college reunion. Member N must report the gift.
The rule contains a number of exceptions to the reporting requirement. Gifts
from relatives, personal hospitality, and local meals need not be disclosed.
―Personal hospitality‖ means hospitality extended for a non-business purpose by an
individual, at the individual‘s residence or other property. A ―local meal‖ means a
meal unconnected with a travel package, at which the host is present. Gifts to a
spouse or dependent child that are totally independent of the recipient‘s
relationship with the reporting individual are exempt from both the gift rule and
the disclosure statute. If not totally independent, gifts from third parties to a
spouse or dependent child are treated the same as gifts to the reporting individual.
However, simultaneous gifts to the reporting individual and his or her spouse or
dependent child may be treated as separate gifts for the purpose of determining
whether the $122 aggregation threshold has been reached.
Example 15.
Member O receives from her father a gift of $10,000. O
need not disclose the gift because it is from a relative.
The statute requires disclosure only of gifts received while the filer was a
Member or employee of the House. Thus, no information regarding gifts is required
from filers who are congressional candidates or new House employees.
Travel Reimbursements
Travel-related expenses provided by nongovernmental sources for activities
such as speaking engagements, conferences, or fact-finding events are not
considered gifts, but they must be reported when they total more than $335 in value
from one source in a year. These expenses include those reimbursed to the
reporting individual as well as those paid directly by the sponsoring organization.
Unlike with gifts, all travel expenses count towards the $335 limit; there is no $134
minimum threshold. For reimbursements and gifts of travel, the Financial
Disclosure Statement must list the source, travel itinerary, inclusive dates, and
nature of expenses provided, but the dollar value of the travel need not be listed.
Travel paid for by a private source must be disclosed, even if unrelated to the
traveler‘s congressional duties. Travel paid for by a foreign government under the
260 HOUSE ETHICS MANUAL
Mutual Educational and Cultural Exchange Act (often referred to as ―MECEA‖)
42
must also be reported.
Example 16.
Member P gives a speech in Chicago at a meeting of a
trade association which pays airfare, food, and lodging for P and his
wife to attend. The expenses for Mr. and Mrs. P exceed $335. P must
disclose the source, dates, and nature of the expenses, but he need not
report any dollar amounts.
Example
17.
Member Q‘s wife works for a law firm that holds an
annual retreat at an out-of-state resort for all of its employees. Each
employee is allowed to bring his or her spouse, at the firm‘s expense. Q
attends the retreat with his wife. If the cost of Q‘s attendance exceeds
$335, he must report the trip on his statement, even though his
attendance was unrelated to his official duties.
Travel reported on federal campaign filings, such as Federal Election
Commission reports, need not be disclosed on a Financial Disclosure Statement, nor
need travel provided on an official basis by federal, state, or local government
entity. Travel provided by a foreign government pursuant to the Foreign Gifts and
Decorations Act
43
is disclosed on a separate form for that purpose, and thus need not
be disclosed on a Financial Disclosure Statement.
The statute requires disclosure only of travel taken while the filer was a
Member or employee of the House. Thus, no information regarding travel is
required from congressional candidates or new House employees.
Positions
Individuals must disclose any nongovernmental positions, whether or not
compensated, that they currently hold, unless the Statement is the first one filed
with the House. On an individual‘s first Statement, the individual must disclose all
positions they currently hold as well as those held in the previous two years.
44
Included are such positions as officer, director, trustee, partner, proprietor,
representative, employee, or consultant of any corporation, company, firm,
partnership, or other business enterprise, any nonprofit organization, any labor
organization, or any educational or other institution. Positions held in a religious,
social, fraternal, or political entity, and positions solely of an honorary nature need
not be disclosed.
42
22 U.S.C. § 2458a.
43
5 U.S.C. § 7342.
44
5 U.S.C. app. 4 § 102(a)(6)(A).
Financial Disclosure
261
The title or nature of each position and the name of the organization should
be stated. Only positions held by the reporting individual need to be disclosed, not
those held by a spouse or dependent child.
Agreements
Any agreements or arrangements of the reporting individual concerning
future employment, leave of absence during government service, continuation of
payments from a private source, deferred compensation plans, or continued
participation in an employee benefit or welfare plan of a former private employer
must be disclosed.
45
The parties, dates, and terms should be reported by Members,
officers, and employees. This information is not required of a candidate, or of the
spouse or dependent children of a filer.
Continued payments or benefits from a former employer would include, for
example, interest in or contributions to a pension fund, profit-sharing plan, or life
and health insurance; buyout agreements; and severance payments. A deferred
compensation plan would include an arrangement for the delayed payment of
amounts due for services rendered by a reporting individual. Deferred
compensation is not subject to outside earned income limitations, but it is
reportable.
Only agreements to which the reporting individual is a party need be
disclosed, not those of a spouse or dependent child.
Compensation in Excess of $5,000 Paid by One Source
New officers and employees and candidates must disclose any compensation
in excess of $5,000 received from a single source other than the United States.
46
Reporting individuals need disclose only their own compensation in this section, not
that received by their spouses or children. The information must cover two
calendar years.
Specifically, a reporting individual who was a member or partner of a firm or
association that provided services (such as legal, architectural, or accounting
services) must disclose the clients or customers of that firm or association to whom
he or she directly provided services. The clients or customers of a filer who was the
sole proprietor of a business or professional practice must be disclosed in the same
manner. The nature of the duties performed only need be described generally.
Thus, a client name (which may be a company name, if the client is a corporation)
45
Id.
§ 102(a)(7).
46
Id.
§ 102(a)(6)(B).
262 HOUSE ETHICS MANUAL
and ―legal services‖ would be sufficient for services rendered by an attorney. The
amount of compensation also need not be disclosed.
Trusts
A reporting individual must usually provide the same information for trust
assets and income as for other items, with three exceptions. The first exception
from reporting is for trusts that were not created by the reporting individual, his
spouse, or dependent, when none of the three has specific knowledge of the holdings
or the sources of income of the trust. The other exceptions are for qualified blind
trusts and qualified diversified trusts.
47
In a qualified blind trust
,
an official places financial assets under the
exclusive control of an independent party. All assets or holdings transferred to a
trust at the time of its creation or any time thereafter must be identified, valued,
and publicly disclosed. Eventually, through the sale of existing assets and the
acquisition of new ones, the identity of specific assets owned by the trust will be
unknown to the official and will thus be eliminated as a factor in influencing official
decision-making.
A qualified blind trust must satisfy a number of requirements, including the
following:
The trustee must be an independent financial institution, lawyer, certified
public accountant, broker, or investment advisor;
There may be no restrictions on the disposal of the trust assets;
The trust instrument must limit communications between the trustee and
interested parties; and
The trust instrument and the trustee must be approved by the Standards
Committee.
The third exception from trust disclosure is for a qualified diversified trust,
an arrangement not generally well suited to use in the legislative branch because of
the breadth of legislators‘ official duties. Such a trust must meet the following
requirements:
The trust must consist of a diversified portfolio of readily marketable
securities;
47
Id.
§ 102(f).
Financial Disclosure
263
The trust assets may not consist of securities of entities having substantial
activities in the area of primary responsibility of the reporting individual;
The trust instrument must prohibit the trustee from publicly disclosing or
informing any interested party of the sale of any security;
The trustee must have power of attorney to prepare the personal income tax
returns of the individual and any other returns that may contain information
pertaining to the trust; and
The trustee as well as the trust instrument must be approved in advance by
the Standards Committee.
Termination Reports
Within 30 days of leaving House employment, a reporting individual must
file a termination report.
48
The termination report covers all financial activity
through the person‘s last day on the payroll. An individual who leaves the House to
take a federal government position that also requires a public Financial Disclosure
Statement need not file a termination report. Such an individual should inform the
House Clerk in writing of the new position. A requirement to file a confidential
disclosure statement in the new position will not excuse the filing of a termination
report.
Example 18.
Member A resigns from Congress to take a position as a
Cabinet Secretary. A must file a public financial disclosure statement
in his new position. A need not file a termination report with the
House, but he must advise the House in writing that he is going to a
covered position that requires the filing of a public Financial
Disclosure Statement.
Filing Deadlines, Committee Review, and Amendments
A report must be physically filed or postmarked by the due date, unless an
extension has been granted by the Committee pursuant to a written request. Total
extensions for any report may not exceed 90 days.
49
An individual who files a report
more than 30 days after it is due must pay a late filing fee of $200, unless the
Committee waives the fee in exceptional circumstances.
50
48
Id.
§ 101(e).
49
Id.
§ 101(g).
50
Id.
§ 104(d).
264 HOUSE ETHICS MANUAL
Within 60 days of receipt, the Committee on Standards of Official Conduct
reviews Financial Disclosure Statements of filers under its jurisdiction to determine
whether the reports have been filed in a timely manner, appear substantially
accurate and complete, and comply with applicable conflict of interest laws and
rules.
51
If the review indicates a possible problem, the reporting individual is
notified and given an opportunity to amend within a specified period.
A filer may also amend a Financial Disclosure Statement on his or her own
initiative. Such amendments are normally given a presumption of good faith by the
Committee if submitted before the end of the year in which the report was originally
filed.
52
To amend a Financial Disclosure Statement, a filer may, but is not required
to, submit an entirely new form. Instead, an amendment can be in the form of a
letter addressed to, and filed with, the Clerk of the House. Both the original filing
and the amendment are made public.
Retention of and Public Access to Reports
The House Clerk retains the reports of House Members and employees for six
years and the reports of unsuccessful candidates for one year.
53
The Clerk makes all
forms on file available for inspection by the public within thirty days of receipt.
54
In
addition, pursuant to the Honest Leadership and Open Government Act, the Clerk
must make the reports of all Members filed after June 1, 2008 available on a public,
searchable website within 45 days of their filing.
55
Anyone wishing to review a report on file with the Clerk must provide his or
her name, occupation, and address; the name of any other person or entity on whose
behalf the information is sought; and a statement that he or she is aware of the
prohibitions on use of the information.
56
It is unlawful to use the information
contained in Financial Disclosure Statements for any commercial purpose other
than new reporting, any unlawful purpose, to establish a filer‘s credit rating, or for
charitable, political, or other solicitations.
57
51
Id.
§ 106.
52
The Committee‘s amendment policy, contained in a letter sent to all Members on April 23,
1986, is included in the appendices to this Manual.
53
5 U.S.C. app. 4 § 105(d).
54
Id.
§ 105(b)(1).
55
Honest Leadership and Open Government Act of 2007, Pub. L. 110-81, § 304, 121 Stat.
735, 752-53 (Sept. 14, 2007).
56
Id.
§ 105(b)(2).
57
Id.
§ 105(c)(1), (2).
Financial Disclosure
265
Failure To File or Filing False Disclosure Statements
The financial disclosure provisions of EIGA have been incorporated by
reference as a rule of the House of Representatives,
58
over which the Standards
Committee has jurisdiction.
59
In addition to any Committee action, EIGA
authorizes the Attorney General of the United States to seek a civil penalty of up to
$11,000 against an individual who knowingly and willfully falsifies or fails to file or
to report any required information.
60
Moreover, under federal criminal law, anyone
who knowingly and willfully falsifies or conceals any material fact in a statement to
the government may be fined up to $11,000, imprisoned for up to five years, or
both.
61
The Committee is authorized to render advisory opinions interpreting the
financial disclosure provisions of EIGA for any person under its jurisdiction. An
individual who acts in good faith in accordance with a written advisory opinion
shall not be subject to any sanction under the Act.
62
58
House Rule 26.
59
See
House Rule 10, cl. 1(t).
60
5 U.S.C. app. 4 § 104(a).
61
18 U.S.C. § 1001.
62
5 U.S.C. app. 4 § 106(b)(7).
267
STAFF RIGHTS AND DUTIES
Overview
The House has adopted specific rules and regulations governing the
employment relationship. In addition, the Congressional Accountability Act of
1995, the first law passed by the 104
th
Congress, applies the rights and protections
of twelve civil rights, labor, and other workplace laws to employees of the legislative
branch of the government.
1
This chapter covers the laws, rules, and standards
concerning:
Restrictions against discrimination in hiring and compensation;
Nepotism;
―Kickback‖ schemes and other illegal hiring, firing, and compensation
practices;
Regulations on employment and compensation, including lump sum
payments;
Guidelines affecting interns, fellows, volunteers, and detailees; and
Consultants.
The general terms, conditions, and specific duties of House employees traditionally
have been within the discretion of the employing Member or committee.
2
Nonetheless, certain general limitations and restrictions apply to all House
employees. Employees of the House are paid from funds of the United States
Treasury to perform public duties. These duties include assisting the Members in
their official responsibilities
3
and working on official committee business,
4
but they
1
See
Congressional Accountability Act of 1995, Pub. L. 104-1, 109 Stat. 3 (1996) (codified at
2 U.S.C. § 1301
et seq
.).
2
Some House employees, generally those under the employ of an officer of the House, will be
subject to the House Employees Position Classification Act (2 U.S.C. §§ 291-303) and regulations on
applicable employment standards issued by the Committee on House Administration.
3
See
2 U.S.C § 57b(a)-(b). During each session of Congress, each Member gets a single
allowance, known as the Members‘ Representational Allowance (―MRA‖) to conduct official and
representational duties. The Clerk Hire Allowance, the Official Expenses Allowance, and Official
Mail Allowance have all been merged into the MRA.
See also
Legislative Branch Appropriations Act,
2008, Pub. L. 110-161, Division H, title I - House of Representatives - Members‘ Representational
Allowances Including Clerk Hire, Official Expenses of Members, and Official Mail.
4
See
House Rule 10, cl. 9(a)(1).
268 HOUSE ETHICS MANUAL
do not include performing nonofficial, personal, or campaign duties.
5
The Code of
Official Conduct (House Rule 23) instructs Members and officers to retain no one on
their staffs ―who does not perform official duties for the offices of the employing
authority commensurate with the compensation he receives‖ (House Rule 23, clause
8).
6
Discrimination
House Rules
In addition to federal law, House rules have long prohibited discriminatory
conduct in employment. Part of the Code of Official Conduct (House Rule 23, clause
9) provides:
A Member, Delegate, Resident Commissioner, officer, or employee of
the House may not discharge and may not refuse to hire an individual,
or otherwise discriminate against an individual with respect to
compensation, terms, conditions, or privileges of employment, because
of the race, color, religion, sex (including marital or parental status),
disability, age or national origin of such individual, but may take into
consideration the domicile or political affiliation of such individual.
This provision has been part of the Code, in substantially this form, since 1975.
7
Standards Committee Action. The Committee on Standards of Official
Conduct is charged with investigating alleged violations of the Code of Official
Conduct (House Rule 10, clause 1(q)). In the 101
st
Congress, the Committee
undertook a preliminary inquiry into charges that a Member had sexually harassed
two female employees on his personal staff. In that case, the Committee affirmed
5
See
United States v. Rostenkowski
, 59 F.3d 1291, 1307-11 (D.C. Cir. 1995),
reh‘g denied
, 68
F.3d 489 (D.C. Cir. 1995);
United States v. Diggs
, 613 F.2d 988, 994-97, 1002 (D.C. Cir. 1979),
cert.
denied,
446 U.S. 982 (1980).
6
See also
Comm. on House Admin.,
U.S. House of Representatives Members‘ Congressional
Handbook
(hereinafter ―
Members‘ Handbook
‖); Comm. on House Admin,
U.S. House of
Representatives Committees‘ Congressional Handbook
(hereinafter ―
Committees‘ Handbook
‖); Code
of Ethics for Government Service ¶ 3, H. Con. Res. 175, 85
th
Cong., 2d Sess., 72 Stat., pt. 2, B12
(1958). The text of the
Members‘ Handbook
and the
Committees‘ Handbook
is available on that
Committee‘s website.
7
See
H. Res. 5, 94
th
Cong., 1
st
Sess. (121
Cong. Rec
. 20-32 (Jan. 14, 1975)). The rule was
amended by H. Res. 5, 100
th
Cong., 1
st
Sess., to preclude discrimination on the basis of age (133
Cong.
Rec
. H6-16 (daily ed. Jan. 6, 1987)), and by the Ethics Reform Act of 1989, to preclude discrimination
on the basis of marital or parental status and handicap and to exclude domicile and political affiliation
(
see
Pub. L. 101-194, § 802(b)(2), 103 Stat. 1716, 1773 (1989)) – matters that are also now addressed by
the Congressional Accountability Act of 1995.
Staff Rights and Duties
269
that sexual harassment is a form of sex discrimination, that the Member charged
had indeed harassed his employees, and that this behavior violated the Code of
Official Conduct. The Committee report stressed that the applicable provision of
the Code (House Rule 23, clause 9) tracks the language of Title VII of the Civil
Rights Law of 1964 and should be interpreted in light of judicial and administrative
decisions (
e.g.
, those of the Equal Employment Opportunity Commission)
construing that law.
8
While the Committee may conduct investigations and disciplinary hearings
and make recommendations to the full House that it formally sanction a Member,
the Committee does not have the authority to order remedies such as monetary
relief for an aggrieved employee. Employees seeking such remedies have recourse
to the Office of Compliance.
Example 1.
Member A, a Californian, only hires other Californians. A
is not violating House rules.
Example 2.
Member B, a Republican, only hires other Republicans. B
is not violating House rules.
Example 3.
As a matter of policy, Member C refuses to hire women
except for clerical positions. C is in violation of House Rule 23.
Example 4.
District manager D dismisses Employee E after E turns
55, on the ground that the office needs to maintain a youthful and
energetic image. D has violated House Rule 23.
Congressional Accountability Act of 1995
Effective January 23, 1996, the Congressional Accountability Act of 1995
extended the rights and protections of the following federal employment laws,
including those laws that prohibit various forms of discrimination, to ―covered‖
Congressional employees and employing offices:
Title VII of the Civil Rights Act of 1964, as amended by the
Civil Rights Act
of 1991
, which prohibits discrimination in employment because of race, color,
religion, sex, or national origin;
The Age Discrimination in Employment Act of 1967, which prohibits
employment discrimination against individuals 40 years of age and over;
8
See
House Comm. on Standards of Official Conduct
, In the Matter of Representative Jim
Bates,
H. Rep. 101-293, 101
st
Cong., 1
st
Sess. 8-10 (1989). The Committee issued a public letter of
reproval to the Member.
Id.
at 25-26.
270 HOUSE ETHICS MANUAL
Title I of the Americans with Disabilities Act of 1990 and the Rehabilitation
Act of 1973, which prohibit employment discrimination against qualified
individuals with disabilities;
The Fair Labor Standards Act of 1938 (―FLSA‖), which governs overtime pay,
minimum wage, and child labor protection, and prohibits pay discrimination
on the basis of sex;
The Family and Medical Leave Act of 1993, which entitles eligible employees
to take leave for certain family and medical reasons;
The Employee Polygraph Protection Act of 1988, which restricts the use of lie
detector tests by employers;
The Worker Adjustment and Retraining Notification Act, which assures
employees of notice before shut-downs and mass lay-offs; and
Section 2 of the Uniformed Services Employment and Reemployment Rights
Act of 1994, which protects job rights of individuals who serve in the military
and other uniformed services.
The application of three other laws had a delayed effective date:
The Federal Service Labor-Management Relations Act, which establishes the
rights of individuals to form, join, or assist a labor organization, or to refrain
from such activity, and to collectively bargain over conditions of employment
through their representatives (effective October 1, 1996);
The Occupational Safety and Health Act of 1970, which protects the safety
and health of employees from physical, chemical, and other hazards in places
of employment (effective January 1, 1997); and
Titles II and III of the Americans with Disabilities Act of 1990, which
prohibits discrimination against qualified individuals with disabilities in the
areas of public services and accommodations (effective January 1, 1997).
The Congressional Accountability Act established the Office of Compliance,
an independent office within the legislative branch, with a five-member Board of
Directors, an Executive Director, of Deputy Executive Director for the Senate, a
Deputy Executive Director for the House, and a General Counsel. That office
administers formal and informal procedures to resolve disputes and provides
monetary awards and other appropriate remedies for congressional employees if a
violation is found. The Office of Compliance has published a guide to the
Congressional Accountability Act, which is available on its website. It also provides
educational services and information to congressional employees and their
employing offices. Employees with questions about their rights under these
statutes should contact the Office of Compliance. The Committee on House
Administration has published a
Model Employee Handbook
, available on that
Committee‘s website, that provides office policies that comply with applicable House
Staff Rights and Duties
271
rules and federal employment laws and regulations.
9
In addition, the House Office
of Employment Counsel is available to provide advice and guidance to House
Members and other employing authorities on employment matters and on the
establishment of office policies consistent with these House rules, laws, and
regulations.
Fair Labor Standards
Certain federal employment protections applied to staff even before the
enactment of the Congressional Accountability Act. House employees have long
been entitled to the minimum wage and overtime protection (except for exempt
employees
10
), the requirement of equal pay for equal work, protection against
oppressive child labor conditions,
11
and protection against retaliation for exercising
any of these rights.
12
The Office of Compliance now administers these provisions.
Pursuant to regulations issued by the Office of Compliance, the minimum
wage and overtime provisions of the FLSA do not apply to staff ―employed in a bona
fide executive, administrative, or professional capacity.‖
13
In light of this standard,
the Committee on House Administration has incorporated in its
Model Employee
Handbook
provisions establishing written leave policies, job descriptions for each
employee stating whether or not the position is exempt from the pay provisions and
time-keeping procedures. The equal pay provisions of the FLSA and Office of
Compliance regulations prohibit paying lower wages based on gender:
for equal work on jobs[,] the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar
working conditions, except where such payment is made pursuant to (i)
a seniority system; (ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv) a differential
based on any other factor other than sex . . . .
14
9
See
Comm. on House Admin., U.S. House of Representatives,
Model Employee Handbook
(Sept. 1999).
10
See
Office of Compliance Manual
, section 5, part C, FLSA Regulations, § 541
et seq
.
(exemption criteria). The text of the manual is available on the Office of Compliance‘s website.
11
See
29 U.S.C. § 203(
l
) for the definition of ―oppressive child labor.‖
12
See
Fair Labor Standards Amendments of 1989, Pub. L. 101-157, § 8, 103 Stat. 938, 944
(1989).
13
See
Office of Compliance Manual
,
supra
note 10.
14
29 U.S.C. § 206(d)(1). An employer may not comply with this provision by reducing anyone‘s
wages.
Id.
272 HOUSE ETHICS MANUAL
Nepotism
Federal law, at 5 U.S.C. § 3110, generally prohibits a federal official,
including a Member of Congress, from appointing, promoting, or recommending for
appointment or promotion any ―relative‖ of the official to any agency or department
over which the official exercises authority or control. The statute defines a relative,
for these purposes, as:
an individual who is related to the public official as father, mother,
son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece,
husband, wife, father-in-law, mother-in-law, son-in-law,
daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother,
stepson, stepdaughter, stepbrother, stepsister, half brother, or half
sister.
The law bans the employment only of these specifically named relatives.
15
The statute does not prohibit a Member from employing two individuals who are
related to each other but not to the Member. In addition, the 107
th
Congress
amended the Code of Official Conduct (House Rule 23, clause 8(c)(1)) to prohibit a
Member from retaining a spouse in a paid position, and to prohibit a House
employee from accepting compensation for work on a committee on which the
spouse serves as a member.
16
The employing Member or committee and subcommittee chairman must
certify, on the monthly payroll authorizations, each employee‘s relationship (or lack
thereof) to any Members of Congress. The anti-nepotism law, as applied in the
House, thus prohibits the hiring of a relative of a Member on that Member‘s staff or
on the staff of a committee or subcommittee that the Member chairs. The
prohibition, however, does not apply ―in the case of a spouse whose pertinent
employment predates the One Hundred Seventh Congress‖ (House Rule 23, clause
8(c)(2)).
If a House employee becomes related to the employing Member through
marriage (
e.g.
, an employee in the Member‘s congressional office marries a relative
of the Member), the employee may remain on the Member‘s personal or committee
staff, unless the employee is the spouse of the employing Member or the works for a
Committee on which the Member serves. Similarly, if a Member becomes the
supervisor of a relative (other than a spouse) who was hired by someone else (
e.g.
,
the Member ascends to the chairmanship of a committee or subcommittee for which
the relative is already working), the relative may remain on the payroll. However,
15
See
Lee v. Blount
, 345 F. Supp. 585, 588 (N.D. Cal. 1972).
16
See
H. Res. 5, 107
th
Cong., 1
st
Sess. (147
Cong. Rec
. H6-10, H8 (Jan. 3. 2001)).
Staff Rights and Duties
273
the Member may not then give that individual further promotions or raises, other
than cost-of-living or other across-the-board adjustments. Changing an employee‘s
status from part-time to full-time would not be considered a raise or promotion and,
therefore, would be permitted under 5 U.S.C. § 3110.
Similarly, regulations issued by the Committee on House Administration
prohibit the use of Committee funds for the benefit of a Member or relative of a
Member by way of a contract or otherwise. Specifically, those regulations state that
―[u]nless specifically provided by federal laws, House rules, or Committee on House
Administration regulations, no Member, relative of the Member, or anyone with
whom the Member has a professional or legal relationship may directly benefit from
the expenditure‖ of either the clerk hire or the official expenses allowance.
17
A
comparable provision applies to House committees. The anti-nepotism restrictions
apply only to employees on the Member‘s or a committee‘s official payroll.
Campaign workers are not covered.
Example 5
. Member D would like to hire his uncle by marriage to
work in his congressional office. Member D would be in violation of
House Rule 23 by hiring a specifically named relative.
Example 6.
Employee F has been a caseworker in Member E‘s district
office for two years, and she later marries Member E‘s son. Employee
F may remain on Member E‘s payroll.
Example 7.
Employee G works on Member F‘s committee, and
Employee G and Member F get married. Employee G may no longer
receive compensation from the committee on which Member F serves.
Illegal Hiring and Firing Practices
Criminal provisions of the United States Code prohibit offering or
threatening federal jobs to induce payments, political activities, or contributions.
Specifically, federal law prohibits anyone from asking for or receiving anything of
value, including a campaign contribution, in return for promising to help someone
obtain a federal post.
18
Further, candidates may not directly or indirectly promise
appointment or use of influence or support in obtaining ―any public or private
position or employment‖ in return for someone‘s political support.
19
Federal law
also bars any individual from promising a federal job, contract, or benefit to a
person as consideration or reward for political support or opposition to any
17
Members‘ Handbook
,
supra
note 6.
18
See
18 U.S.C. § 211.
19
See
18 U.S.C. § 599.
274 HOUSE ETHICS MANUAL
candidate or party.
20
Moreover, no one may deprive or threaten to deprive anyone of
a federal job or benefit as a way to induce political contributions, including services,
for a candidate or party.
21
These provisions carry penalties ranging to fines of
$10,000 and imprisonment for two years.
In addition to these provisions, during the 110
th
Congress, the House
amended the Code of Official Conduct (House Rule 23, clause 14) to prohibit any
Member, Delegate, or Resident Commissioner from influencing an employment
decision or employment practice of any private entity on the basis of partisan
political affiliation.
Salary Kickbacks
Federal law contains no statutory provision that specifically bars
―kickbacks.‖
22
However, the Department of Justice, under general fraud statutes,
has prosecuted several Members of Congress and congressional aides involved in
kickback schemes. Section 1001 of title 18, for example, specifically prohibits the
making of any false, fictitious, or fraudulent statements or knowingly covering up or
concealing, by any trick or scheme, any material fact concerning matters in the
jurisdiction of the executive, legislative, or judicial branch of the government.
23
A
Member or employee who uses the mail to distribute payroll checks or other funds
in furtherance of a kickback scheme may also be violating the federal mail fraud
statute.
24
20
See
18 U.S.C. § 600.
21
See
18 U.S.C. § 601.
22
The term kickback generally refers to a scheme whereby an employee is coerced, as a
condition of employment, into remitting a portion of the individual‘s salary to the employer or into
spending a portion of the salary for goods or services for the employer‘s benefit. It may also include the
designation by an employer of certain persons on the payroll who actually perform no duties but turn
over their salaries to the employer.
23
In 1996, the statute was amended to expressly extend its coverage to ―any matter within the
jurisdiction of the executive,
legislative
, or judicial branch.‖ False Statements Accountability Act of
1996, Pub. L. 104-292, § 2, 110 Stat. 3459 (1996) (emphasis added). The Supreme Court had held that a
previous version of this statute prohibited making a false or fraudulent statement or falsifying or
concealing a material fact on a payroll voucher or certification to a disbursing officer of the House to
further a kickback scheme.
See
United States v. Bramblett
, 348 U.S. 503 (1955). That decision was
overruled by
Hubbard v. United States
, 514 U.S. 695, 715 (1995), which held that the false statements
statute in effect at the time the conduct occurred did not apply to statements made in a
judicial
proceeding.
See also
United States v. Oakar
, 111 F.3d 146 (D.C. Cir 1997) (relying on
Hubbard
and
holding that the false statements statute did not apply to statements made to the House Committee on
Standards).
24
See
18 U.S.C. § 1341;
see also Rostenkowski
, 59 F.3d at 1294-95;
Diggs
, 613 F.2d at 997-99,
1002-03;
United States v. Clark
, Crim. No. 78-207 (W.D. Pa. 1978).
Staff Rights and Duties
275
Court and Standards Committee Actions. The United States Court of
Appeals for the District of Columbia Circuit upheld the conviction of a Member of
the House under an earlier version of 18 U.S.C. § 1001, concluding that the
Member‘s failure to disclose to the House payroll office the real purpose of pay to
employees in a kickback scheme, in which such funds were used for personal and
congressional expenses of the Member, was a material omission in violation of the
criminal law.
25
In the course of a subsequent Committee investigation of the
Member, he admitted that he had misused the clerk hire allowance (the clerk hire
allowance is now included in the Members‘ Representational Allowance (―MRA‖))
26
in violation of then-House Rule 43, clauses 1 and 8, part of the Code of Official
Conduct, and that he had been unjustly enriched thereby. He agreed to make
restitution to the House, apologized, and was censured by the House.
27
With respect to the MRA, this Committee has long taken the view that:
it is improper to levy, as a condition of employment, any responsibility
on any clerk to incur personal expenditures for the primary benefit of
the Member or of the Member‘s congressional office operations . . . .
The opinion clearly would prohibit any Member from retaining any
person from his [MRA] under either an express or tacit agreement that
the salary paid to the individual is in lieu of any present or future
indebtedness of the Member, any portion of which may be allocable to
goods, products, printing costs, campaign obligations, or any other
nonrepresentational service.
28
In the 100
th
Congress, a Delegate and his administrative assistant pleaded
guilty to having conspired to defraud the United States in violation of the criminal
conspiracy statute
29
by submitting payroll forms and collecting salary checks for
individuals who did no work for the House. The Standards Committee found that
the Delegate had used the checks to pay for hotel and meal expenses for visiting
constituents and staff, campaign expenses, and travel for the Delegate and his
family, in violation not only of the conspiracy statute, but also of the House Code of
Official Conduct and the Code of Ethics for Government Service. The Delegate and
25
Diggs
, 613 F.2d at 999.
26
See
note 3,
supra.
27
See
House Comm. on Standards of Official Conduct
, In the Matter of Representative Charles
C. Diggs, Jr.,
H. Rep. 96-351, 96
th
Cong., 1
st
Sess. (1979); 125
Cong. Rec
. 21584-92 (July 31,1979).
28
House Comm. on Standards of Official Conduct,
Advisory Opinion No. 2
(July 11, 1973),
reprinted in
119
Cong. Rec
. H6073-74 (July 12, 1973), and in the appendices to this Manual.
29
See
18 U.S.C. § 371.
276 HOUSE ETHICS MANUAL
employee resigned before the Committee could hold a disciplinary hearing to
consider sanctions.
30
In the 107
th
Congress, a Member was convicted of, among other things,
conspiracy to violate the federal bribery statute
31
by agreeing to employ an
individual as a member of the Member‘s congressional district staff in exchange for
certain gratuities, including the payment by that individual of $2,500 a month of his
congressional salary.
32
In a subsequent Committee investigation, an investigative
subcommittee stated in a letter transmitting a Statement of Alleged Violation to the
full Committee that the individual had described in his trial testimony in detail how
each month he deposited an envelope containing $2,500 under the door of the
Member‘s private office.
33
The Committee found that the conduct by the Member
violated clauses 1-3 of the Code of Official Conduct (House Rule 23). On the basis of
this violation, as well as other conduct found to be in violation of the Code of Official
Conduct, which taken together were ―of the most serious character meriting the
strongest possible Congressional response,‖
34
the Committee recommended that the
House of Representatives adopt a resolution that the Member be expelled.
35
The
House later voted to expel the Member.
36
General Employment and Compensation Provisions
The Committee on House Administration has promulgated regulations
covering the Members‘ Representational Allowance (―MRA‖)
37
and the employment
of committee staff. The
Members‘ Handbook
and
Committees‘ Handbook
contain
these regulations.
38
A summary follows.
Personal Staff
Each Member of the House may employ up to 18 permanent employees and a
total of not more than four additional employees appointed as interns, part-time
30
House Comm. on Standards of Official Conduct
, Summary of Activities, One Hundredth
Congress,
H. Rep. 100-1125, 100
th
Cong., 2d Sess. 15-16 (
In the Matter of Delegate Fofo I.F. Sunia and
Matthew K. Iuli
)
.
31
See
18 U.S.C. § 201(c).
32
United States v. James A. Traficant, Jr.
, Crim. No. 4:01CR207 (N.D. Ohio 2002).
33
House Comm. on Standards of Official Conduct,
In the Matter of Representative James A.
Traficant, Jr.
, H. Rep. 107-594, 107
th
Cong., 2d Sess. 120 (2002).
34
Id
. at 2.
35
See
H. Res. 495, 107
th
Cong., 2d Sess. (148
Cong. Rec.
H5375-93 (July 24, 2002)).
36
Id.
37
See
note 3,
supra.
38
See
note 6,
supra.
Staff Rights and Duties
277
employees, shared employees, temporary employees, or staff on leave without pay to
serve as the Member‘s staff. The regulations issued by the Committee on House
Administration establish the maximum and minimum annual rates of employee
salaries. A portion of the MRA is used for securing staff to provide assistance to
Members in the discharge of official and representational duties.
39
A statute that
required that individuals compensated from the then-clerk hire allowance
40
work
either in Washington, D.C., or in the state or district that the Member represents
was repealed in 1996, thereby permitting employees to ―telecommute.‖
41
The
Committee on House Administration has issued a policy statement on
telecommuting, which is available on that committee‘s website. As discussed in
that policy statement, telecommuting is entirely at the discretion of the employing
office, and employing offices are under no obligation to offer a telecommuting option
to employees. An employee with a telecommuting work arrangement is subject to
the same rules, regulations, and procedures applicable to all staff of an employing
office, including those contained in the House rules, the Committee on House
Administration‘s regulations set forth in the
Members‘ Handbook
and
Committees‘
Handbook
, the employing office‘s employee manual, applicable federal laws, and
guidance of the Standards Committee.
Committee Staff
Provisions of the House rules establish a ceiling on the number of
professional and clerical staff that may be employed by each standing committee of
the House and address the pay of these employees (House Rule 10, clauses 9(a) and
9(c)). The
Committees‘
Handbook
sets out regulations and guidelines for
employment and compensation of committee staff.
The House rules state that professional staff members of the standing
committees of the House ―may not engage in any work other than committee
business during congressional working hours‖ and that they ―may not be assigned a
duty other than one pertaining to committee business‖ (House Rule 10, clauses
9(b)(1)(A) and 9(b)(1)(B)). Thus, committee staff may
not
be used to supplement the
personal office needs of committee members.
All Staff
The regulations of the Committee on House Administration require
employing Members to provide monthly salary certifications for their staff. A salary
may be disbursed to an employee only upon submission of a signed statement by the
appropriate Member certifying that the Office of Human Resources has correctly
39
Id.
40
Id.
41
Pub. L. 104-186, Title II, § 204(43), 110 Stat. 1718, 1736 (Aug. 20, 1996).
278 HOUSE ETHICS MANUAL
listed the name and salary of each employee, and that the employees have certified
that they have no relationship to any current Member of Congress, unless
specifically noted. Compensation may be received only for duties performed within
the preceding month.
The Ethics Reform Act of 1989 amended what is now House Rule 23, clause 8,
―to strengthen and broaden [Members‘ and officers‘] accountability for the pay and
performance of staff.‖
42
Whereas the old rule explicitly addressed only Members as
employing authorities, the revised rule explicitly applies as well to House officers,
committee chairs, subcommittee chairs, and ranking minority members in their
supervisory roles. Clause 8, in pertinent part, provides:
(a) A Member, Delegate, Resident Commissioner, or officer of
the House may not retain an employee who does not perform duties for
the offices of the employing authority commensurate with the
compensation he receives.
(b) In the case of committee employee who works under the
direct supervision of a member of the committee other than a
chairman, the chairman may require that such member affirm in
writing that the employee has a complied with clause 8(a) (subject to
clause 9 of rule X) as evidence of compliance by the chairman with this
clause and with clause 9 of rule X.
Thus, when a Member other than a committee chair (
e.g.
, a subcommittee
chair or ranking minority member) directly supervises committee staff, the chair
may require the supervising Member to certify the staff‘s performance. According
to the Bipartisan Task Force report,
[t]he purpose of this requirement is to ensure accountability for
employee performance. The rule specifically states that, if a
supervising Member has affirmed in writing that the employee under
his authority has met the criteria of the rule, this written affirmation
is sufficient evidence that the chairman is in compliance with the rule‘s
provisions. Any violation would consequently become the
responsibility of the supervising Member.
43
42
Bipartisan Task Force on Ethics
, Report on H.R. 3660, 101
st
Cong., 1
st
Sess. 60 (Comm. Print,
Comm. on Rules 1989),
reprinted
in
135
Cong. Rec
. H9253, H9270 (daily ed. Nov. 21, 1989) (hereinafter
―
Bipartisan Task Force Report
‖).
See
also
Ethics Reform Act of 1989, Pub. L. 101-194, § 802(b)(1), 103
Stat. 1716, 1773 (1989).
43
Bipartisan Task Force Report
,
supra
note 42, at 33; 135
Cong. Rec
. H9262.
Staff Rights and Duties
279
Guidelines of the Committee on House Administration prohibit two or more
employees from holding the same House position and from dividing a House salary.
In addition, House employees are prohibited from subletting any portion of their
official duties to someone else.
44
One employee may be shared between two or more
House employing authorities (
e.g.
, one staffer may work for two Members or for
both a Member and a committee). Part-time work is also permitted.
45
The underlying standard for the receipt of compensation by an employee of
the House is that the employee has regularly performed official duties
commensurate with the compensation received. The Code of Ethics for Government
Service instructs every employee to ―[g]ive a full day‘s labor for a full day‘s pay;
giving to the performance of his duties his earnest effort and best thought.‖
46
Employees are paid United States Treasury funds to perform public duties.
Appropriated funds are to be used solely for the purposes for which appropriated.
47
Funds appropriated for congressional staff to perform official duties should be used
only for assisting a Member in his or her legislative and representational duties,
working on committee business, or performing other congressional functions.
Employees may not be compensated from public funds to perform nonofficial,
personal, or campaign activities on behalf of the Member, the employee, or anyone
else.
There is no conclusive listing of a Member‘s ―official and representational
duties.‖ However, the Supreme Court discussed such a concept in a different
context and stated that ―legitimate‖ activities of a Member include things said or
done in the House relating to official duties and include ―legitimate ‗errands‘
performed for constituents, the making of appointments with Government agencies,
assistance in securing Government contracts, preparing so-called ‗news letters‘ to
constituents, news releases and speeches delivered outside the Congress.‖
48
Standards Committee Actions. In one case considered by the Standards
Committee in the 100
th
Congress, involving the misuse of clerk hire funds, the
Committee found that a Member maintained an employee on the payroll of a
subcommittee the Member chaired, while knowing that the employee was not
44
See
2 U.S.C. § 101.
45
See
Members‘ Handbook
and
Committees‘ Handbook
,
supra
note 6.
46
See
Code of Ethics for Government Service ¶ 3,
supra
note 6.
47
See
31 U.S.C. § 1301(a).
48
United States v. Brewster
, 408 U.S. 501, 512 (1972).
See also
McCormick v. United States
,
500 U.S. 257, 272 (1991) (―Serving constituents and supporting legislation that will benefit the district
and individuals and groups therein is the everyday business of a legislator.‖).
280 HOUSE ETHICS MANUAL
coming to work. The House reprimanded the Member for, among other things,
violating the Code of Official Conduct (currently clause 8 of House Rule 23).
49
In the 104
th
Congress, the Standards Committee considered several
allegations also involving a Member‘s misuse of clerk hire funds. One matter
concerned, among other things, a Member‘s regular assignment to an employee of
duties that were clearly personal in nature, including paying the Member‘s bills,
retrieving personal mail, cleaning the Member‘s home, serving as a point of contact
for vendors and service providers in connection with the Member‘s personal affairs,
and performing a variety of personal services, such as curling the Member‘s hair
and making shopping trips to department stores, grocery stores, and furniture
stores, during work hours.
50
In another matter, the Committee self-initiated a complaint against a
Member involving allegations that, among other things, the Member had ―misused
congressional staff for personal purposes‖ and ―failed to repay personal debts
incurred by personal staff on the [Member‘s] behalf.‖
51
In the 106
th
Congress, a Member admitted to a Statement of Alleged
Violation charging that he brought discredit to the House of Representatives by,
among other things, permitting employees under his supervision and control to
work for the Member‘s campaign, to ―the detriment of the time they were required
to spend on official duties.‖
52
The Committee determined that contributing to this
misconduct was the failure of the Member ―to establish a comprehensive and
comprehensible policy for his congressional staff to record the annual, sick[,] and
administrative leave taken by each employee in his congressional office.‖
53
49
See
House Comm. on Standards of Official Conduct
, In the Matter of Representative Austin
J. Murphy
, H. Rep. 100-485, 100
th
Cong., 1
st
Sess. 5, 9 (1987); 133
Cong. Rec
. H11686-96 (daily ed. Dec.
18, 1987).
50
See
House Comm. on Standards of Official Conduct
, In the Matter of Representative
Barbara-Rose Collins
, H. Rep. 104-876, 104
th
Cong., 2d Sess. 14-17. In that matter, an investigative
subcommittee adopted a Statement of Alleged Violation against the Member, alleging, among other
things, the improper performance of personal services by House employees. No further action was
taken in the matter, however, because as of the time the investigative subcommittee completed its
work, the Member was about to depart the House.
See id
. at 4.
51
The Committee lost jurisdiction over the matter when the Member resigned from the
House.
See
House Comm. on Standards of Official Conduct
, Summary of Activities, One Hundred
Fourth Congress
, H. Rep. 104-886, 104
th
Cong., 2d Sess. 19 (
In re Rep. Mel Reynolds
).
52
House Comm. on Standards of Official Conduct,
In the Matter of Rep. E.G. ―Bud‖ Shuster
,
H. Rep. 106-979, 106
th
Cong., 2d Sess., 6-7 (2000).
53
Id
. at 63.
Staff Rights and Duties
281
Court Actions. The Department of Justice has on four separate occasions
pursued criminal charges, against two then-current and two former Members of the
House, for allegedly placing persons on the congressional payroll who did not
regularly perform official congressional duties but rather performed personal
services or duties for or on behalf of the Members.
54
The charges included fraud,
mail fraud, perjury, and embezzlement of government funds. The sitting Members
were convicted;
55
the former Members pleaded guilty.
56
In one of these cases, the United States Court of Appeals, summarizing the
testimony of a House officer, stated that it is ―within a congressman‘s discretion to
define the parameters of an employee‘s responsibilities as long as those
responsibilities related to the congressman‘s ‗official and representative duties.‘‖
57
Nevertheless, the court, in upholding the fraud conviction of the Member of
Congress, stated that although the employees had performed some official services
for the Member, ―only a nominal percentage of [the employees‘] responsibilities were
congressionally related,‖ and thus a jury had sufficient evidence to conclude that
such employees were paid from clerk hire allowances ―with the intention of
compensating them for services rendered to the [defendant Member‘s private
business] or the defendant.‖
58
Thus, while it might have been argued that ―it was a
matter of [the Member‘s] discretion to fix their duties and salaries as congressional
employees,‖ the ―defendant‘s representations to the House Office of Finance that the
[employees] were
bona fide
congressional employees were fraudulent and material
in violation of 18 U.S.C. § 1001.‖
59
In a more recent case, the Court of Appeals observed that, although ―the
House has not attempted to define a Member‘s ‗official and representative duties,‘
and has in large measure vested Members ‗with discretion to fix the terms and
conditions of employment‘ of staff members,‖ Congress ―has drawn a line between
use of the Clerk Hire Allowance to employ staff assisting ‗in the discharge of official
and representative duties‘ (permissible under the Annual Appropriations Acts) and
use of that allowance ‗to defray personal, political or campaign related allowances‘
(prohibited by 2 U.S.C. § 57; 31 U.S.C. § 1301; and the [Members‘ Congressional]
Handbook.‖
60
The court stated that where to draw the line between ―official work‖
54
See, e.g., United States v. Rostenkowski
, Crim. No. 94-0226 (D.D.C.);
United States v. Diggs
,
Crim. No. 78-142 (D.D.C.);
United States v. Clark
, Crim. No. 78-201 (W.D. Pa.).
55
See
notes 5 and 33,
supra.
56
See
Congressional Quarterly‘s News, Hill News Highlights
(Apr. 9, 1996);
Congressional
Quarterly Weekly Report
1263 (June 23, 1979).
57
Diggs
,
supra
note 5, 613 F.2d at 997.
58
Id.
at 1002 (emphasis added).
59
Id.
at 997.
60
Rostenkowski
,
supra
note 5, 59 F.3d at 1309 (emphasis added).
282 HOUSE ETHICS MANUAL
and ―personal services‖ may not always be clear. In concluding that certain counts
of the criminal indictment against a former Member were justiciable (
i.e.
, capable of
resolution by the court), the court determined that staff‘s involvement with
engraving gift items and mounting souvenirs on plaques as gifts and performing
bookkeeping duties for a private insurance company owned by the Member would
be prohibited by House rules and regulations as personal services, but the court
could not say that ―picking up [a Member‘s] laundry and driving his family
members around Washington‖ could not be considered official rather than personal
activities ―[b]ecause the performance of those activities might, in some
circumstances, directly – even vitally – aid a Congressman in the performance of his
official duties.‖
61
During the 107
th
Congress, a Member was convicted of conspiracy to defraud
the United States by, among other things, soliciting and receiving payments from
the salaries of congressional employees, directing members of his congressional staff
to perform labor and services to maintain his boat, and by having members of his
congressional staff perform labor and services at the Member‘s farm.
62
In a
subsequent investigation by the Standards Committee, an investigative
subcommittee stated that such personal services included baling hay, running and
repairing farm equipment, repairing farm structures, building a horse corral,
converting a corn crib to another use, and performing electrical and plumbing
repairs. For example, one employee testified at trial that he spent most of his time
at the Member‘s farm doing work which included plumbing, wiring, and other
handyman work. That employee further testified that he also spent time in
Washington, D.C., as a part of his part-time congressional employment for the
Member, but that he performed no official duties at the congressional office.
Instead, he performed work on the Member‘s boat, which included painting,
varnishing, and repairing brass fittings.
63
For their personal services, the
employees received no compensation other than their congressional salaries.
64
Following the investigation, the adjudicatory subcommittee found that the
Member‘s conduct in directing and having members of his congressional staff
perform personal services and labor violated clauses 1-3 of the Code of Official
Conduct.
65
61
Id
. at 1310.
62
See
note 33,
supra
.
63
Id
. at 121.
64
See
id
.
65
Id
. at 2
.
Staff Rights and Duties
283
Annual Ethics Training Requirement
The House rules adopted at the beginning of the 110
th
Congress included a new
provision that requires the Standards Committee to provide annual ethics training
to all House Members, officers, and employees.
66
The rule also requires that House
officers and employees certify by January 31 of each year that they have attended
annual ethics training in the prior calendar year under the guidelines established
by the Standards Committee. All new officers and employees must receive ethics
training within 60 days after beginning their service to the House.
Lump Sum Payments
House offices have had broad authority to make lump sum payments to
employees since 1997. The House Administration Committee has, under authority
granted by the lump sum payment statute,
67
issued a set of regulations governing
the making of such payments. Those regulations are published in both the
Members‘ Handbook
and the
Committees‘ Handbook
.
68
While those regulations set
out basic rules on the making of lump sum payments, it is the responsibility of the
Standards Committee to determine the manner in which those payments are to be
treated for purposes of the House Code of Official Conduct and other ethics laws,
rules, and standards. The Standards Committee has provided the following
guidance.
Any lump sum payment must be made in compliance with the provision of
the House rules requiring that each employee perform duties for his or her
employing office that are commensurate with the compensation paid to that
employee (House Rule 23, clause 8). Before making any lump sum payment, a
Member must be satisfied that the employee has performed services for the
congressional office that are commensurate with the amount the employee is to be
paid in the lump sum combined with his or her regular salary. Furthermore, an
employee may not be compensated from public funds, including by means of a lump
sum payment, for the performance of nonofficial, personal, political, or campaign
activities on behalf of the Member, the employee, or anyone else.
In addition, the Standards Committee has determined that, as a general rule,
a lump sum payment will not count in the determination whether an employee is
being paid at a rate that results in the employee being subject to the requirement to
file a Financial Disclosure Statement, the outside earned income limitation and
restrictions, and the post-employment restrictions on lobbying. A key factor in this
66
See
House Rule 11, cl. 3(a)(6)
67
See
2 U.S.C. § 60o.
68
See
note 6,
supra
.
284 HOUSE ETHICS MANUAL
Committee determination is the fact that by and large, the provisions of law
involved here look to the employee's ―rate of basic pay.‖
69
In the Committee‘s
opinion, lump sum payments, when properly used by an employing office, do not
constitute part of the recipient‘s ―rate of basic pay.‖ Another important factor here
is that the Committee has been advised that lump sum payments are not treated as
salary for purposes of employment benefits. Thus, according to the information
provided to the Committee, those payments do not count in determining the
maximum amount an employee can contribute to the Thrift Savings Plan, or the
amount of life insurance that the employee may purchase, and likewise they do not
count in determining an employee‘s ―high three‖ years for purposes of calculating
retirement benefits.
The Standards Committee has cautioned, however, that Members should not
use lump sum payments as means of enabling employees to evade the financial
disclosure requirements, the outside earned income limitation and restrictions, or
the post-employment restrictions. For example, an intent to evade may be inferred
when an employee‘s regular salary rate is below the applicable thresholds, but that
employee is regularly given a lump sum payment in an amount that, if it had been
paid in the form of regular salary instead, would have subjected the employee to one
or more of these requirements or restrictions. Receiving a lump sum end-of-the-
year bonus or other one time payment recognizing a particular accomplishment is
generally permissible. Members and staff are reminded that the House Code of
Conduct specifically requires them to adhere not only to the letter but also to the
spirit of the House Rules (House Rule, 23, clause 2). A Member who uses lump sum
payments with the intent to enable an employee to evade any of these requirements
or restrictions will be subject to disciplinary action by the Committee. In addition,
when the Committee finds that lump sum payments were made with such an
intention, the Committee reserves the right to determine that those payments
should be treated as part of the recipient‘s basic rate of pay, thus subjecting that
individual to the applicable requirements and restrictions.
Volunteers, Interns, Fellows, and Detailees
House rules prohibit unofficial office accounts, that is, private supplements to
the funds available to Members through their clerk hire and official expenses
allowances.
70
In
Advisory Opinion No. 6
, interpreting the unofficial office account
prohibition, the House Select Committee on Ethics, 95
th
Congress, concluded that in
addition to money, the prohibition on unofficial office accounts proscribes the
private, in-kind contribution of goods or services for official purposes. The Select
Committee found that ―no logical distinction can be drawn between the private
contribution of in-kind services and the private contribution of money, and that
69
See
5 U.S.C. app. 4 §§ 109(13)(B), 501(a)(1); 18 U.S.C. § 207(e)(6).
70
A full explanation of this topic is available in Chapter 10 of this Manual.
Staff Rights and Duties
285
both perpetuate the very kind of unofficial office accounts and practices that are
prohibited‖ by the rule.
71
The Select Committee did, however, recognize several exceptions to the
general prohibition against acceptance of services including the following:
Services provided by federal, state, or local government agencies; and
Intern, fellowship, or similar educational programs that are primarily of
educational benefit to the individual, as opposed to primarily benefiting the
Member or office, and which do not give undue advantage to special interest
groups.
Definitions
The Committee defines the terms ―employee,‖ ―intern,‖ ―fellow,‖ ―volunteer,‖
and ―detailee‖ as follows:
An employee means a person appointed to a position of employment in the
House of Representatives by an authorized employing authority, whether
that person is receiving a salary disbursed by the Chief Administrative
Officer, or is in a Leave Without Pay or Furlough status.
An intern means an individual performing services in a House office on a
temporary basis incidental to the pursuit of the individual‘s educational
objectives. Some interns receive no compensation from any source, while
some receive compensation or other assistance from an educational
institution or other sponsoring entity. Although some interns may receive
compensation from House allowances,
72
this discussion deals primarily with
those who do not receive such House compensation.
A fellow means an individual performing services in a House office on a
temporary basis as part of an established mid-career education program,
while continuing to receive the usual compensation from his or her
sponsoring employer.
A volunteer means an individual performing services in a House office
without compensation from any source.
71
House Select Comm. on Ethics,
Advisory Opinion No. 6
(May 9, 1977),
reprinted in Final
Report of the Select Committee on Ethics
, H. Rep. 95-1837, 95
th
Cong., 2d Sess. app. at 65 (1979), and
in the appendices to this Manual.
72
The
Members‘ Handbook
and
Committees‘ Handbook
include provisions for paid interns, but
they provide that such individuals may work for no more than 120 days in a twelve-month period.
See
note 6,
supra
.
286 HOUSE ETHICS MANUAL
A detailee means an executive branch employee assigned to a committee staff
for a period of up to one year.
73
Internship and Fellowship Programs
A Member or House office may accept the temporary services of an intern
participating in a program, as discussed below, which is primarily of educational
benefit to the participant, irrespective of whether the individual is being
compensated by a third-party sponsoring organization. Similarly, a Member or
House office may accept the temporary services of a fellow participating in a
mid-career education program, as discussed below, while the individual receives
compensation from his or her employer. An internship or fellowship program
should be operated by an entity not affiliated with a congressional office, and the
organization should be willing to indicate its sponsorship of the intern or fellow in
writing.
Restrictions on Establishing Internships and Fellowships. House Members
and staff may not raise or disburse funds for programs that place interns or fellows
in their own offices.
74
Offices that have established their own internship program
for students may advertise intern openings.
75
In addition, Members do have the
right to select or approve those program participants who will be working in their
offices.
While internship and fellowship programs are often sponsored by educational
institutions, other public or private organizations may act as sponsors, provided the
arrangement does not give undue advantage to special interests. Therefore, an
intern or fellow should not be assigned duties that will result in any direct or
indirect benefit to the sponsoring organization or anyone else with which the
individual is affiliated (including the employer or a fellow), other than broadening
the individual‘s knowledge.
An individual who is serving as a paid intern or fellow must comply with all
the laws, rules, and standards of conduct applicable to House employees, including
the Code of Official Conduct (House Rule 23), the gift rule (House Rule 25, clause 5),
the ban on solicitations (5 U.S.C. § 7353), and the limitations on accepting a
payment for a speech, article, or appearance (House Rule 25, clause 1(a)(2)). In
addition, under provisions of the criminal code (18 U.S.C. §§ 203, 205), such
individuals are prohibited from representing anyone before any federal agency or
73
See generally
2 U.S.C. § 72a(f);
Members‘ Handbook
and
Committees‘ Handbook
,
supra
note 6.
74
See
Advisory Opinion No.
6
,
supra
note 71.
75
See
Members‘ Handbook
and
Committees‘ Handbook
,
supra
note 6.
Staff Rights and Duties
287
official or in any matter in which the federal government is a party or has a direct
and substantial interest.
Foreign nationals. Generally, it is permissible for a foreign national to serve
an unpaid internship or fellowship for a Member in either a personal or committee
office. Such an internship or fellowship would be subject to the same conditions and
restrictions as other such educational programs. Thus, the foreign national should
not be assigned any matter of interest to the individual‘s employer (if any) or the
program sponsor. In addition, the foreign national should not be assigned any
duties that enable the individual to influence United States policy in a way that
benefits the individual‘s home country. Because of concerns arising under Article I,
section 9, clause 8 of the Constitution (the Emoluments Clause), the Standards
Committee should be contacted for advice about any prospective internship or
fellowship involving a foreign national receiving a salary, or some other form of
support, from the individual‘s home country while serving in a House office.
Example 8.
Student A writes to Member B offering to work in B‘s
office for one semester, as part of his college‘s government internship
program. A encloses a copy of the college‘s brochure on its internship
program and a letter from the dean, indicating that A will get college
credit for his participation. B may accept A‘s services.
Example 9.
Scientist C works for a pharmaceutical company that
sponsors a mid-career fellowship program. In conjunction with the
program, C writes to the Science Committee, offering her services for
one year, during which time the company would continue to pay her
salary. The Committee may accept C‘s services, provided that she does
not work on legislation that will directly benefit her employing
company.
Example 10.
Student D‘s college does not have a formal internship
program. D‘s political science professor has offered to give him
independent study credit if he volunteers in a congressional office and
writes a paper on what he learns about the legislative process. A
Member could accept D‘s services as a volunteer under these
circumstances (see discussion below on ―Volunteers‖). The
independent study credit demonstrates the educational benefit to
Student D.
Example 11.
E, a foreign national, has applied through an educational
program in Washington, D.C., to serve as a ―visiting fellow‖ in Member
F‘s office for six months. The program will pay E a stipend and will
pay for the individual‘s health insurance during the fellowship. E will
receive no other salary or form of support from any source. Member F
288 HOUSE ETHICS MANUAL
may accept E‘s services, provided that she is not assigned any duties
that would benefit the sponsoring program or the fellow‘s home
country.
Volunteers
A Member or House office may accept the temporary services of a volunteer,
provided the Member or office has a clearly defined program to assure that: (1) The
voluntary service is of significant educational benefit to the participant; and (2)
such voluntary assistance does not supplant the normal and regular duties of paid
employees. In this regard, limitations should be imposed on the number of
volunteers who may assist a congressional office at any one time, as well as the
duration of services any one volunteer may provide. A volunteer should be required
to agree, in advance and in writing, to serve without compensation and not to make
any future claim for payment, and to acknowledge that the voluntary service does
not constitute House employment.
76
A Member or House office wishing to use the services of an individual seeking
to volunteer may also place the individual in a temporary paid position on the
Member‘s clerk hire payroll or other personnel fund, as authorized by regulations of
the Committee on House Administration. If so, the individual would have to comply
with the laws, regulations, and standards of conduct applicable to House employees.
Immediate Family Members May Volunteer. A Member may accept
volunteer services without limit from his or her own immediate family,
i.e.
, spouse,
children, or parents. As discussed previously in this chapter, however, 5 U.S.C.
§ 3110 and House rules prohibit Members from appointing relatives to paid
positions.
Example 12.
A recent college graduate seeking work on Capitol Hill
offers to volunteer in Member A‘s office while looking for a paying job.
Unless A has a program in the office to ensure that volunteers derive
76
Federal law, at 31 U.S.C § 1342, provides:
An officer or employee of the United States Government or of the District of Columbia
government may not accept voluntary services for either government or employ
personal services exceeding that authorized by law except for emergencies involving
the safety of human life or the protection of property. . . .
In Opinion B-69907 (issued on February 11, 1977), the Comptroller General of the United States
determined that the statute applies to Members of Congress and other legislative branch officers and
employees. However, because the statute was enacted to prevent funding deficiencies, it was deemed
not to prohibit a Member of Congress from using volunteers to assist in the performance of official
functions of the Member‘s office, provided such volunteers agree in advance to serve without
compensation, so that there is no basis for a future claim for payment.
Staff Rights and Duties
289
significant educational benefit and do not merely fill in for busy
staffers, A may
not
accept the offer.
Example 13.
A retiree in Member B‘s district offers to volunteer two
days a week in the district office, answering telephones, making copies
and generally freeing up the paid staff to do more substantive work. B
may
not
accept this volunteer‘s services because they are not of
significant educational benefit to the volunteer, and they supplant the
normal and regular duties of paid employees.
Example 14.
Member C runs a program for senior citizens in C‘s
district office. One or two retirees at a time volunteer for six-month
periods during which time they receive regular briefings on legislative
issues of concern to seniors and act as liaisons to other seniors in the
district. Because the volunteers‘ services are temporary, of significant
educational benefit to the participants, and do not supplant the normal
and regular duties of paid employees, this program complies with
Committee guidelines.
Example 15.
Member D‘s spouse offers to volunteer in the district
office as an extra caseworker. As long as the spouse receives no pay,
Member D may accept.
Example 16.
A social services agency in Member E‘s district wishes to
include the Member‘s district office as a work site in a welfare-to-work
program. A participant in the program wishes to be assigned to the
office for up to 12 months to provide clerical services. The program
participant would not displace any incumbent employee or fill a
vacant, unfilled position. Because the job training program sponsored
by the agency serves essentially the same purpose as in internship or
volunteer program providing a significant educational benefit to the
participant, E may participate in the welfare-to-work program.
Volunteers, interns, and fellows should be made aware of the implications
their activities have for the Members in whose offices they work. Technically,
House rules cannot be enforced against individuals who are not House employees.
However, such individuals may be in a position to take actions and make
representations in the name of a Member, for which the Member may be
responsible. The government may also be subject to a claim of liability for
work-related injuries to, or caused by, a volunteer, intern, or fellow acting within
the scope of his or her position with the House. The Committee recommends that
Members and House offices obtain the agreement of such individuals that, although
not House employees, they will conduct themselves in a manner that reflects
creditably on the House. Members are also encouraged to obtain the Committee‘s
290 HOUSE ETHICS MANUAL
guidance regarding their participation in any volunteer, internship, or fellowship
program in which they wish to participate.
Business Cards. In a June 29, 1990, letter from the Standards Committee to
all Members addressing the circumstances under which the services of volunteers
may be accepted in congressional offices, the Committee concluded that individuals
not paid by the House of Representatives (which also includes interns and fellows)
may not use or obtain business cards or other materials suggesting an employment
relationship with the House.
77
Standards Committee Actions. In recent years, the Standards Committee
has investigated a number of complaints involving the inappropriate use of
volunteers. In the 104
th
Congress, the Committee considered two complaints
involving the misuse of volunteer services by a Member. In one matter, the
Committee found that the Member made inappropriate use of volunteer services
during the period in which he was assembling a leadership staff to become the
Speaker of the House.
78
In addition, the Committee found that the routine presence
of a volunteer in the Member‘s congressional office created the appearance of
improper commingling of political and official resources and, thus, violated the
prohibition on unofficial accounts.
79
In the second matter, the Committee found
that while the Member‘s office took steps to ensure that a volunteer‘s activities were
proper, the volunteer‘s participation as an ―informal advisor‖ did not comply with
the Committee‘s guidelines governing interns or volunteers because the services
were not part of a clearly defined educational program.
80
The Committee directed
the Member to take immediate steps to not only prevent the reoccurrence of similar
incidents and ensure compliance with the Committee‘s standards, but also to guard
against even the appearance of any impropriety.
81
In the 105
th
Congress, the Standards Committee considered a complaint that
alleged, among other things, that a Member had received improper personal
benefits from a political action committee. The Committee determined that there
was substantial documentary evidence that a paid consultant to the political action
committee ―provided a wide array of services pertaining to the development and
77
A copy of the letter is contained in the appendices to this Manual.
78
See
House Comm. on Standards of Official Conduct
, Summary of Activities, One Hundred
Fourth Congress
, H. Rep. 104-886, 104
th
Cong., 2d Sess. 13 (
In re Rep. Newt Gingrich
).
79
See id.
80
Id
. at 16.
81
See id
.
Staff Rights and Duties
291
implementation of [the Member‘s] legislative agenda, and that he did so at [the
Member‘s] request.‖
82
Another matter considered during the 105
th
Congress concerned a Member‘s
use of a paid employee of an outside organization. An investigative subcommittee
determined that the individual, who had unusual access to the Member‘s official
schedule, served as an unofficial policy advisor to the Member, and the Member
solicited the individual‘s views and assistance concerning official matters.
Specifically, the individual was found to have provided ongoing advice to the
Member and his staff to assist him in conducting duties related to urban issues,
frequently attending official meetings with Members of Congress, other government
officials, and staff.
83
The investigative subcommittee, in its report, advised that
―Members must exercise caution to limit the use of outside resources to ensure that
the duties of official staff are not improperly supplanted or supplemented.‖
84
In the 106
th
Congress, a Member admitted to a Statement of Alleged
Violation charging, among other things, that the Member had authorized and
accepted the scheduling and advisory services of his former chief of staff on
exclusively official matters over an eighteen-month period after the individual had
resigned her position.
85
The Standards Committee determined that the repeated
and prolonged nature of the conduct, supplanting the duties normally performed by
congressional employees, represented a significant violation that lasted beyond a
reasonable period of transition.
86
The activities in question involved the day-to-day
management of the Member‘s schedule, such as screening appointments, arranging
meetings (including those for clients of the former employee), and directing
congressional employees to attend designated events. The activities also involved
82
House Comm. on Standards of Official Conduct
, Summary of Activities, One Hundred Fifth
Congress
, H. Rep. 105-848, 105
th
Cong., 2d Sess. 15 (
In re Rep. Newt Gingrich
). In this matter, the
Committee dismissed the count of the complaint involving the inappropriate use of volunteer
services because the violation had alleged occurred approximately five years before the filing of the
complaint and there was no evidence of an ongoing violation involving the prohibition against
unofficial House office accounts.
See id.
83
House Comm. on Standards of Official Conduct,
In the Matter of Rep. Newt Gingrich
, H.
Rep. 105-1, 105
th
Cong., 1
st
Sess. 96-97 (1997).
84
While the subcommittee determined that the ―regular, routine, and ongoing assistance‖
provided by the individual to the Member and his staff ―could create the appearance of improper
commingling of official and unofficial resources,‖ the subcommittee found that the action did not
warrant inclusion as a count in the Statement of Alleged Violation because the activities had ceased
before the issuance of two earlier letters of reproval to the Member regarding the use of outside
resources in two unrelated matters.
Id.
at 97.
85
See
H. Rep. 106-979, at 44,
supra
note 52.
86
See id
.
292 HOUSE ETHICS MANUAL
routine service as a political advisor to the Member.
87
The Committee concluded
that such conduct violated the prohibition on unofficial accounts,
under which House offices are generally prohibited from accepting
private support for official activities. Former Rule 45 [now Rule 24]
provided that ―no Member may maintain or have maintained for his
use an unofficial office account.‖ The prohibition extends not only to
private monetary contributions, but also to in-kind support from
private sources. As a general matter, the official activities of each
Member and Committee office are to be supported by official monies
appropriated for those activities. The Committee on Standards has
interpreted former Rule 45 to support its finding that the regular
involvement of a volunteer/political advisor is a congressional office
who performs tasks properly associated with the official
responsibilities of House Members and employees is inappropriate.
The concerns regarding the acceptance of voluntary services of individuals
include the fact that at times, quite obviously, an individual offering to perform
such services for a Member of Congress may have his or her own agenda. Thus,
even with regard to individual participation in established intern or fellowship
programs, whose services may be accepted by a House office, the Committee on
Standards has cautioned that those individuals ―should not be assigned duties that
will result in any direct or indirect benefit to the sponsoring organization, other
than the broadening the individual‘s knowledge.‖
88
Detailees
The above guidelines do not prohibit a Member or other House office from
accepting services, including detailed staff, provided on an official basis by a unit of
federal, state, or local government. House staff and resources may not, however, be
similarly used to perform the work of other governmental units, or of any private
organization.
A committee may request or accept detailed staff from executive branch
departments or agencies. The Select Committee on Ethics ruled that ―in-kind
services and functions provided by federal, state, and local government agencies do
not fall in the same category as private donations of money or in-kind services.‖
89
87
See generally id.
at 44-51.
88
Id
. at 44-45 (quoting
Inquiry into Various Complaints Filed Against Rep. Newt Gingrich
,
H. Rep. 104-401, 104
th
Cong., 1
st
Sess. 4 (1995); and
House Ethics Manual
, 102d Cong., 2d Sess. 197
(1992)).
89
Advisory Opinion No. 6
,
supra
note 72.
Staff Rights and Duties
293
While federal law specifically authorizes the detailing of executive branch personnel
to committee staffs, there is no comparable provision allowing detailees to serve on
the personal staffs of Members.
90
Regulations of the Committee on House Administration provide that the
detailee remains, for most purposes, an employee of the source department or
agency, rather than becoming a House employee during the assignment period.
91
For the purposes of post-employment restrictions, however, federal law mandates
that detailees be considered employees both of the entity from which they come and
that to which they are sent.
92
The Committee on House Administration‘s guidelines provide that
Committees are not required to reimburse the sending organization for detailees,
except for detailees from the Government Printing Office (―GPO‖). Detailees
assigned from GPO require reimbursement from committee funds. According to
House Administration guidance, the number of non-reimbursable detailees, at one
time, most remain at or below 10% of the committee‘s staffing ceiling.
Consultants
Amendments to the House rules that were approved at the start of the 106
th
Congress and the 107
th
Congress subject consultants to the House, including
consultants to House committees, to certain ethics rules.
93
Under the Code of
Official Conduct (House Rule 23), any individual whose services are paid for by the
House pursuant to a consultant contract are considered ―an employee of the
House‖
94
subject to clauses 1-4, 8, 9, and 13 of House Rule 23, under which such
individual:
Must at all times conduct him or herself in a manner that reflects creditably
on the House;
Must adhere to the spirit as well as the letter of the rules of the House and
its committees;
90
See
2 U.S.C. § 72a(f);
Members‘ Handbook
and
Committees‘ Handbook
,
supra
note 6.
91
See
Members‘ Handbook
and
Committees‘ Handbook
,
supra
note 6. However, regulations of
the Office of Government Ethics provide: ―An employee on detail, including a uniformed officer on
assignment, from his employing agency to the legislative or judicial branch for a period in excess of 30
calendar days shall be subject to the ethical standards of the branch or entity to which detailed. . . .‖ 5
C.F.R. § 2635.104(b).
92
18 U.S.C. § 207(g). Post-employment restrictions are discussed in Chapter 5.
93
See
H. Res. 5, 106
th
Cong., 1
st
Sess. (145
Cong. Rec
. H6-10, H31 (Jan. 6, 1999)); H. Res. 5,
107
th
Cong., 1
st
Sess. (147
Cong. Rec
. H6-10, H8 (Jan. 3, 2001)).
94
House Rule 23, cl. 18(b).
294 HOUSE ETHICS MANUAL
May not receive compensation and may not permit compensation to accrue to
his or her beneficial interest from any source, the receipt of which would
occur by virtue of influence improperly exerted from the consultant‘s position
with the House;
May not accept any gift, except as provided in the House gift rule (House
Rule 25, clause 5);
Must perform duties for the contracting committee that are commensurate
with the compensation received by the consultant;
May not discriminate against an individual with respect to compensation,
terms, conditions, or privileges of employment because of race, color, religion,
gender, disability, age, or national origin; and
Must execute a confidentiality oath before receiving access to classified
information.
Lobbying
In addition to these limitations and restrictions, consultants are also
prohibited from engaging in certain lobbying activity. In the 110
th
Congress this
lobbying provision was extended to include lobbying restrictions for the other
members of firms whose employees are consultants for House committees.
Specifically, House Rule 23, clause 18(b) provides:
An individual whose services are compensated by the House pursuant
to a consultant contract may not lobby the contracting committee or
the members of staff of the contracting committee on any matter. Such
an individual may lobby other Members, Delegates, or the Resident
Commissioner or staff of the House on matters outside the jurisdiction
of the contracting committee. In the case of such individual who is a
member or employee of a firm, partnership, or other business
organization, the
other
members and employees of the firm,
partnership, or other business organization shall be subject to the
same
restrictions on lobbying that apply to the individual under this
paragraph. (Emphasis added.)
Accordingly, the Standards Committee considers the following restrictions to
be appropriate:
Each such consultant should establish an ―ethics wall‖ to isolate his or her
work on behalf of the contracting committee from any lobbying activity of the
other members of his or her firm before the House;
Staff Rights and Duties
295
During the period of the consultant‘s service to the House, other members of
the firm may not lobby the contracting committee, including its Members or
staff during the term of the contract on any matter;
Regardless of the subject matter, the other members of the firm should not
refer to or otherwise use the fact of the consultant‘s position in the House in
any contacts they may have with any House Member, officer, or employee in
official matters; and
In conducting any permissible lobbying activity, consultants are subject to
the provision of the Code of Official Conduct discussed above.
Acceptable Gifts
Consultants are also subject to the House gift rule, which is set forth in
clause 5 of House Rule 25, and which is described in detail in Chapter 2 on gifts.
Under the gift rule, a consultant – like any House Member or regular staff person –
may not accept any gift except as specifically provided in the rule. The rule governs
the acceptance of virtually anything having monetary value, including services,
travel, meals, and tickets to sporting events and shows (House Rule 25, clause
5(a)(2)(A)). Thus, prior to commencing service under a consultant contract, an
individual should carefully review the provisions of the gift rule and should contact
the Standards Committee staff as any questions arise.
Practically speaking, the major effect of the gift rule on consultants is to limit
their ability to accept gifts that are motivated by their position with the House. The
Standards Committee anticipates that consultants will have relatively little
difficulty in distinguishing such gifts. The gift rule includes a number of provisions
allowing the acceptance of gifts that are motivated by some factor other than one‘s
position with the government.
For example, one provision that consultants may find particularly relevant
allows the acceptance of benefits that result from one‘s outside business,
employment or other activities and are not offered or enhanced because of one‘s
position with the House (
Id.
, clause 5(a)(3)(G)(i)). Another provision allows the
acceptance of gifts offered by an individual on the basis of personal friendship, and
that provision includes criteria to be used in determining whether a gift can validly
be considered a personal friendship gift (
Id
., clause 5(a)(3)(D)). Other provisions
allow the acceptance of gifts from one‘s relatives, gifts from Members, officers, and
employees of the House or Senate, and anything paid for by a federal, state, or local
governmental entity (
Id.
, clauses 5(a)(3)(C), (F) and (O)).
The gift rule also includes a general provision allowing the acceptance of any
gift (other than cash or cash equivalent) having a value of less than $50 provided
that the donor is not a registered lobbyist, an agent of a foreign principal, or an
entity that retains or employs such individuals (
Id
., clause 5(a)(1)(A)-(B)). Under
296 HOUSE ETHICS MANUAL
this provision, an individual may not accept, from any one source in a calendar
year, gifts having a cumulative value of $100 or more, but gifts having a value of
less than $10 do not count toward this annual limitation. Gifts that may be
motivated by one‘s position with the House may be accepted under this provision,
although in no event may any government official accept a gift that is linked to any
official action that the official has taken or is being asked to take.
Confidential Financial Disclosure
House rules do not require consultants to file public financial disclosure
statements. In the Committee‘s view, such a requirement would be inappropriate
for consultants, who serve the House on a relatively short-term basis and hence are
expected to maintain their outside business activities.
95
It is equally clear, however, that a contracting committee would not be in a
position to evaluate a prospective consultant‘s compliance with conflict-of-interest
rules without having certain basic information on his or her financial interests.
Similarly, when the Standards Committee is asked for an advisory opinion on a
committee‘s proposed arrangements with a contractor, it will be unable to render a
complete opinion without having access to such information. But such information
need not be as extensive as that required by the House of Representatives Financial
Disclosure Statement, and the purposes here can be served by submission of the
information on a confidential, rather than a public basis.
Accordingly, the Standards Committee strongly recommends that each
committee, prior to entering into a consulting contract, obtain, at a minimum, the
following information from the prospective consultant(s):
Each of the individual‘s current sources of earned income, the type of income
(
e.g.
, salary, partnership income, director‘s fee), and the rate at which he or
she is compensated;
The identity of each client for whom the individual is currently providing
services, and of each client for whom he or she anticipates providing services
during the term of the committee contract; and
The nature and value of any investment or liability held by the consultant
that could be affected by or is in any way related to the duties that the
individual would perform for the committee.
95
The Committee understands that in the Senate, consultants are technically subject to the
requirement to file a public financial disclosure statement, but that the Senate Select Ethics
Committee will routinely waive the requirement. However, the grant of the waiver is subject to the
condition that the consultant agrees to make confidential submissions to the Senate Ethics
Committee regarding, among other things, his or her clients and the clients of the firm with which
the consultant is affiliated.
Staff Rights and Duties
297
The contracting committee should also obtain the commitment of a
prospective consultant to inform the committee promptly regarding any such source
of earned income, client or investment that he or she obtains during the term of the
contract.
House committees are urged to contact the Standards Committee before
entering into any proposed arrangement with a consultant.
299
CASEWORK
Overview
An important aspect of a House Member‘s representative function is to act as
a ―go-between‖ or conduit between the Member‘s constituents and administrative
agencies of the federal government. Whether promoting projects that will benefit
constituents or assisting in the resolution of the problems that are an inevitable by-
product of government regulation, the Member is serving as a facilitator, or
ombudsman. Such activity, in the opinion expressed by the late Senator Paul H.
Douglas, plays a useful role in the governmental process by helping legislators and
administrators perform their respective jobs adequately through the interest of the
former in the work of the latter.
1
In a committee print entitled
Ethical Standards in Government
, a
subcommittee headed by Senator Douglas stated that legislators performing
casework functions can ―legitimately serve as an informal board of inspectors‖ over
administrators, and ―can prevent the administrators from flagging in their zeal and
can detect and check abuses in the conduct of public business.‖
2
Douglas concluded
in his own study of ethics in government that there is a ―sound ethical basis for
legislators to represent the interests of constituents and other citizens in their
dealings with administrative officials and bodies.‖
3
The Constitution guarantees all citizens the right to petition the government
for redress of grievances.
4
A logical point of contact is one‘s elected representative.
Furthermore, Members of Congress continually must monitor government programs
and the administration of public laws. As the Supreme Court has recognized,
―[s]erving constituents and supporting legislation that will benefit the district and
individuals and groups therein is the everyday business of a legislator.‖
5
This chapter includes a discussion on the rules in making contacts in aid of
constituents with governmental agencies, the courts, and nongovernmental parties.
Pursuant to long-standing guidance, it is generally permissible for Members (and
staff acting on their behalf) to:
1
Paul H. Douglas,
Ethics in Government
87 (1952).
2
Special Subcomm. on the Establishment of a Comm‘n on Ethics in Gov‘t, Senate Comm. on
Labor and Public Welfare,
Ethical Standards in Government
, 82d Cong., 1
st
Sess. 28 (Comm. Print
1951).
3
Douglas,
supra
note 1, at 87.
4
U.S. Const., amend. I.
5
McCormick v. United States
, 500 U.S. 257, 272 (1991).
300 HOUSE ETHICS MANUAL
Request information or status reports;
Urge prompt consideration of a matter based on the merits of the case;
Arrange appointments;
Express judgment on a matter – subject to the
ex parte
communication rules;
and
Ask for reconsideration, based on law and regulation, or administrative and
other decisions.
In taking any such action, a Member or staff person must observe certain
ethical principals. Of particular importance is the principle that a Member‘s
obligations are to all constituents equally, and considerations such as political
support, party affiliation, or one‘s status as a campaign contributor should not affect
either the decision of a Member to provide assistance or the quality of help that is
given to a constituent.
Also discussed in this chapter is the prohibition against the acceptance of
gifts offered in connection with or in return for taking official actions (a matter also
discussed at length in Chapter 2), and the guidelines for employment
recommendations.
Off-the-Record (
Ex parte
) Communications
Even though performing casework is an important congressional duty, it is
not totally unrestricted. Federal law specifically prohibits certain off-the-record
comments, known as
ex parte
communications, directed to executive or independent
agency officials on the merits of matters under their formal consideration.
6
Whenever parties to a dispute come before a formal tribunal, they are entitled to a
fair, impartial hearing and to equal access to the fact-finder. The
ex parte
rule is
designed to preserve the due process rights of all parties to administrative
proceedings.
An
ex parte
communication is an oral or written communication made
without proper notice to all parties and not on the public record, from an interested
person outside the agency to a member of the agency, an administrative law judge,
or an employee involved in the decision-making process.
7
Since 1976, the
6
5 U.S.C. § 557(d).
7
5 U.S.C. § 551(14).
Casework
301
―Government in the Sunshine Act‖ has prohibited anyone from making an
ex parte
communication to an administrative agency decision-maker concerning the merits
of an issue that is subject to formal agency proceedings.
8
This broad prohibition
encompasses the statements of Members and employees of Congress acting on
behalf of constituents.
Formal agency proceedings generally include those of a quasi-adjudicatory (or
trial-type) nature and those rulemaking proceedings that must include formal
hearings and a decision on the record. The legislative history of the Government in
the Sunshine Act shows that ―[t]he prohibition only applies to formal agency
adjudication. Informal rulemaking proceedings and other agency actions that are
not required to be on the record after an opportunity for a hearing will not be
affected by the provision.‖
9
Thus, a House Member or employee may undertake
communications to an agency on behalf of a constituent concerning those matters
not subject to formal agency proceedings. Development of agency policy and
establishment of budgetary priorities are examples of areas in which Members of
Congress are generally free to voice their own views or to forward those of their
constituents. Agencies often ask for public comment on proposed regulations.
Representatives, like other members of the public, may clearly contribute their
opinions.
10
It should be noted that some communications, even if related to a matter
not then in a formal agency proceeding, may become part of the public record
concerning that matter if the communication forms the basis of subsequent formal
action, particularly one involving competing claims to a valuable privilege.
11
The proscription against
ex parte
communications does not extend to ―general
background discussions about an entire industry which do not directly relate to
specific agency adjudication involving a member of that industry, or to formal
rulemaking involving the industry as a whole.‖
12
The statute specifically exempts
8
See
5 U.S.C. § 557(a), (d).
9
Senate Comm. on Gov‘t Operations,
Government in the Sunshine Act, Report to Accompany
S. 5
, S. Rep. 94-354, 94
th
Cong., 1
st
Sess. 35 (1975);
see also
Government in the Sunshine Act, S.
Conf. Rep. 94-1178, 94
th
Cong., 2d Sess. 29 (1976).
10
In addition, the ―Congressional Review Act‖ requires formal congressional review of agency
rules. Under the Act, agencies are required to submit proposed rules to the House and Senate for
review by each Committee with appropriate oversight jurisdiction. Agency rules may be disapproved
by joint resolution. 5 U.S.C. § 801
et seq.
11
See
Home Box Office, Inc. v. FCC
, 567 F.2d 9, 57 (D.C. Cir.) (―information gathered
ex parte
from the public which becomes relevant to a rulemaking will have to be disclosed at some time‖),
cert.
denied,
434 U.S. 829 (1977);
see also
Action for Children‘s Television v. FCC
, 564 F.2d 458, 474-77
(D.C. Cir. 1977).
12
House Comm. on Gov‘t Operations,
Government in the Sunshine Act
, H. Rep. 94-880, 94
th
Cong., 2d Sess., pt. I, at 20 (1976).
302 HOUSE ETHICS MANUAL
congressional status requests.
13
As stated in a House report on the Government in
the Sunshine Act: ―While the prohibitions on
ex parte
communications relative to
the merits apply to communications from Members of Congress, they are not
intended to prohibit routine inquiries or referrals of constituent correspondence.‖
14
Both the House and Senate reports recognized the possibility that a request
for background information or a status report ―may in effect be an indirect or subtle
effort to influence the substantive outcome of the proceedings.‖ Thus in doubtful
cases, agency personnel may treat these requests as
ex parte
communications ―to
protect the integrity of the decision-making process.‖
15
One way to avoid violating
the statutory prohibition is to put all communications with agencies in writing and
to request that they be made a part of the record, available to all interested parties.
Example 1.
After taking testimony in a formal, contested proceeding
under Federal Acquisition Regulations, an agency official is about to
decide which of two competing bidders will be awarded a contract. It
would be an improper,
ex parte
communication for Member A to call up
the official and suggest that one of the two competitors receive the
award.
Example 2.
In the same circumstances as Example 1, it would be
proper for Member A to put his views in writing, as part of the formal
record, under established agency procedures.
Example 3.
A constituent company in Member B‘s district has been
awaiting a decision for some time in a formal agency proceeding.
Member B may contact the agency seeking information regarding the
status of the proceeding and urging prompt consideration of the
company‘s claim.
Example 4.
A constituent company in Member C‘s district has been
awaiting a decision for some time in a formal agency proceeding.
Member C has received information on the status of the proceeding
from the agency‘s congressional liaison officer. A call later that day
from Member C to the head of the agency, asking for the same
information, could be viewed as an attempt to influence the outcome.
C should refrain.
13
5 U.S.C. § 551(14);
see
S. Conf. Rep. 94-1178,
supra
note 9, at 29.
14
H. Rep. 94-880,
supra
note 12, pt. I, at 21-22.
15
Id
. at 21;
see also
S. Rep. 94-354,
supra
note 9, at 37.
Casework
303
Judicially Imposed Limits
No other statute or rule restrains Members of Congress from communicating
with agency decision-makers. However, certain federal court opinions discourage
inordinate pressure on officials charged by law with responsibility for making
administrative decisions. While such pressure may not violate any standard of
conduct overseen by this Committee, Members should be aware that a
court‘s
perception that a Member has overstepped may lead it to invalidate the very
determination that the Member was seeking. Judicial reaction varies, depending on
the degree of formality of the administrative proceeding, the goal of the
congressional intervention, and the impact that the intervention had on the
agency‘s determination.
Senator Douglas pointed out with respect to proceedings conducted by
administrative personnel that a legislator ―should make it clear that the final
decision is in their hands.‖
16
Federal courts have nullified administrative decisions
on grounds of due process and fairness towards all of the parties when
congressional interference with ongoing administrative proceedings may have
unduly influenced the outcome. In a seminal case, the court set aside a decision of
the Federal Trade Commission because of aggressive questioning of agency officials
by a Senate committee regarding their rationale for deciding an issue still pending
before the officials in a formal setting.
17
The court‘s concern had nothing to do with
undisclosed communications; the questioning occurred during public hearings.
Nonetheless, the court held that ―common justice to a litigant requires that we
invalidate the order entered by a quasi-judicial tribunal that was importuned by
members of the U.S. Senate, however innocent they intended their conduct to be, to
arrive at the ultimate conclusion which they did reach.‖
18
When congressional action is directed at less formal, non-adjudicatory
administrative proceedings, courts are loathe to interject themselves between the
legislative and the executive branches. As one court explained:
Americans rightly expect their elected representatives to voice their
grievances and preferances concerning the administration of our laws.
16
Douglas,
supra
note 1, at 90.
17
Pillsbury Co. v. FTC
, 354 F.2d 952 (5th Cir. 1966);
see also
Koniag, Inc. v. Andrus
, 580
F.2d 601, 610 (D.C. Cir.) (letter from Congressman to Secretary of Interior suggesting regulatory
interpretation arrived at by the Secretary two days later ―compromised the appearance of the
Secretary's impartiality‖ and warranted setting aside of Secretary‘s determination),
cert. denied
, 439
U.S. 1052 (1978).
Cf. ATX Inc. v. Department of Transportation
, 41 F.3d 1522 (D.C. Cir. 1994)
(agency decision upheld despite 60 letters to agency head from various Congressmen, and
―particularly troubling‖ testimony of one congressman at quasi-judicial hearing).
18
Id.
at 963.
304 HOUSE ETHICS MANUAL
We believe it entirely proper for Congressional representatives
vigorously to represent the interests of their constituents before
administrative agencies engaged in informal, general policy
rulemaking, so long as individual Congressmen do not frustrate the
intent of Congress as a whole as expressed in statute, nor undermine
applicable rules of procedure
.
Where Congressmen keep their
comments focused on the substance of the proposed rule . . .
administrative agencies are expected to balance Congressional
pressure with the pressures emanating from all other sources. To hold
otherwise would deprive the agencies of legitimate sources of
information and call into question the validity of nearly every
controversial rulemaking.
19
The court focused here on ―the intent of Congress . . . as expressed in statute.‖
In another case, a court set aside an administrative determination that appeared to
have been influenced, at least in part, by ―irrelevant or extraneous‖ political
considerations.
20
There, a subcommittee chairman had stated that funding for
unrelated aspects of the agency‘s budget would be withheld until the department‘s
Secretary approved a particular project. The court emphasized that it was not
finding that the Member had acted improperly, but it nonetheless remanded the
case, directing the Secretary to ―make new determinations based strictly on the
merits and completely without regard to any considerations not made relevant by
Congress in the applicable statutes.‖
21
Agency investigations occupy a middle ground between formal adjudications
and informal rulemaking. An administrative decision in this context need not be
19
Sierra Club v. Costle
, 657 F.2d 298, 409-10 (D.C. Cir. 1981) (emphasis added);
see also
DCP
Farms v. Yeutter
, 957 F.2d 1183 (5th Cir.) (Department of Agriculture action upheld when, prior to
the time the matter had reached adjudicative stage, congressman advocated to the agency a certain
interpretation of regulations),
reh‘g denied,
962 F.2d 9 (5th Cir.),
cert. denied,
506 U.S. 953 (1992);
U.S. ex rel. Sequoia Orange Co. v. Sunland Packing House Co.
, 912 F. Supp. 1325 (E.D. Cal. 1995)
(congressional contact with the Department of Agriculture did not constitute undue influence when
contacts concerned proper subject matter and did not contain threats of adverse action against the
Department),
aff‘d,
151 F.3d 1139 (9th Cir. 1998),
cert. denied,
525 U.S. 1067 (1999);
Sokaogon
Chippewa Community v. Babbitt
, 929 F. Supp. 1165 (W.D. Wis. 1996) (congressional contacts not
improper in administrative decision-making by Department of the Interior under Indian Gaming
Regulatory Act when there was no indication that Department was asked to consider factors other
than those enumerated under that Act),
reconsidered in part,
961 F. Supp. 1276 (W.D. Wis. 1997);
Environmental Defense Fund, Inc. v. Blum
, 458 F. Supp. 650, 662-63 (D.D.C. 1978) (in informal
rulemaking, congressmen ―properly brought to the agency‘s attention the concerns of their respective
constituencies‖ which were ―directly relevant to the agency's proceeding‖).
20
D.C. Fed‘n of Civic Ass‘ns v. Volpe
, 459 F.2d 1231, 1248 (D.C. Cir. 1971),
cert. denied
, 405
U.S. 1030 (1972).
21
Id.
at 1246, 1249.
Casework
305
completely immune from congressional pressure, provided that the agency has an
independent basis for its conclusion. Thus, for example, one corporation tried to
resist a Securities and Exchange Commission subpoena on the ground that it had
resulted from political pressure instigated by a corporate competitor. The court
ruled: ―That the SEC commenced these proceedings as a result of the importunings
of [a Senator and his constituent, the competitor], even with malice on their part, is
not a sufficient basis to deny enforcement of the subpoena. . . . [But t]he SEC order
must be supported by an independent agency determination, not one dictated or
pressured by external forces.‖
22
Courts have historically refused to intervene when Members attempted to
expedite an administrative process rather than urging a particular outcome. In the
words of one court, ―where the Congressional involvement is directed not at the
agency‘s decision on the merits but at accelerating the disposition and enforcement
of the pertinent regulations, it has been held that such legislative conduct does not
affect the fairness of the agency‘s proceedings and does not warrant setting aside its
order.‖
23
Congressional Standards
Congress has adopted standards that recognize the legitimate role of
Members in assisting constituents, while protecting both the due process rights of
parties potentially affected by government actions and the ability of agency officials
to exercise their responsibilities. The Committee on Standards of Official Conduct
has observed:
It is clear that under our constitutional form of government there is a
constant tension between the legislative and executive branches
regarding the desires of legislators on the one hand and the actions of
agencies on the other in carrying out their respective responsibilities.
The assertion that the exercise of undue influence can arise based
upon a legislator‘s expressions of interest jeopardizes the ability of
Members effectively to represent persons and organizations having
concern with the activities of executive agencies.
. . . In sum, . . . a finding [of undue influence] cannot rest on pure
inference or circumstance or, for that matter, on the technique and
22
SEC v. Wheeling-Pittsburgh Steel Corp
., 648 F.2d 118, 130 (3d Cir. 1981);
see also
U.S. v.
American Target Advertising
, 257 F.3d 348 (4th Cir. 2001) (Postal Service subpoena, allegedly
issued as the result of pressure by a U.S. Senator, upheld in the absence of a showing of bad faith on
the part of the Postal Service).
23
United States v. Armada Petroleum Corp.
, 562 F. Supp. 43, 51 (S.D. Tex. 1982) (citing
Gulf
Oil Corp. v. Fed. Power Comm‘n
, 563 F.2d 588, 611 (3d Cir. 1977)).
306 HOUSE ETHICS MANUAL
personality of the legislator, but, instead, must be based on probative
evidence that a reprisal or threat to agency officials was made.
24
This Committee‘s longstanding guidance on communicating with executive
and independent agencies of the federal government is expressed in
Advisory
Opinion No. 1
.
25
This opinion states that it is appropriate for a Member to introduce
an individual to an agency, to arrange interviews and meetings for the individual,
to provide a character reference, and to urge prompt and fair consideration of a
matter on the merits of the case. Inquiries as to the status of a proceeding or ruling
may be directed to any agency or department. A Member may urge reconsideration
of a decision on the ground that it is unsupported by federal law, regulation, or
legislative intent. If a Member has strong feelings about a particular case,
judgment on the merits of the case may be expressed, subject, of course, to the
prohibition on
ex parte
communications in formal agency proceedings. A Member
should not directly or indirectly threaten reprisal or promise favoritism or benefit to
any administrative official. Written communications are preferred to ensure
compliance with these principles.
The Committee set forth the following standards in
Advisory Opinion No. 1
:
REPRESENTATIONS
This Committee is of the opinion that a Member of the House of
Representatives, either on his own initiative or at the request of a
petitioner, may properly communicate with an Executive or
Independent Agency on any matter to:
request information or a status report;
urge prompt consideration;
arrange for interviews or appointments;
express judgment;
call for reconsideration of an administrative response which he
believes is not supported by established law, federal regulation
or legislative intent;
24
House Comm. on Standards of Official Conduct,
Statement in the Matter of James C.
Wright, Jr.
, 101
st
Cong., 1
st
Sess. 84 (1989).
25
House Comm. on Standards of Official Conduct
, Advisory Opinion No. 1
, reprinted in the
appendices to this Manual.
Casework
307
perform any other service of a similar nature in this area
compatible with the criteria hereinafter expressed in this
Advisory Opinion.
PRINCIPLES TO BE OBSERVED
The overall public interest, naturally, is primary to any
individual matter and should be so considered. There are also self-
evident standards of official conduct which Members should uphold
with regard to these communications. The Committee believes the
following to be basic:
1. A Member‘s responsibility in this area is to all his
constituents equally and should be pursued with diligence
irrespective of political or other considerations.
2. Direct or implied suggestion of either favoritism or
reprisal in advance of, or subsequent to, action taken by
the agency contacted is unwarranted abuse of the
representative role.
3. A Member should make every effort to assure that
representations made in his name by any staff employee
conform to his instruction.
When communicating with an agency, Members and staff should only assert
as fact that which they know to be true. In seeking relief, a constituent will
naturally state his or her case in the most favorable terms. Moreover, the
constituent may not be familiar with the intricacies of the controlling
administrative regulations. Thus, a Member should exercise care before adopting a
constituent‘s factual assertions. A prudent approach in any communication would
be to attribute factual assertions to the constituent.
In order to avoid any inference on the part of agency personnel that a
Member is asking for action in a particular matter that is inappropriate under
agency guidelines, the Member should consider expressly assuring administrators
that no effort is being made to exert improper influence. For example, a letter could
ask for ―full and fair consideration consistent with applicable law, rules, and
regulations.‖
The staff of the Committee‘s Office of Advice and Education is available to
review, on an informal basis, drafts of letters to administrative agencies. Formal
written advisory opinions may also be requested from the Committee regarding the
propriety of particular communications.
308 HOUSE ETHICS MANUAL
Example 5.
Company Z in Member A‘s district faces bankruptcy
during the pendency of an unrelated administrative appeal. A may
inform the agency of Z‘s financial difficulties and ask that Z‘s claim be
expedited if agency procedures allow it.
Example 6.
Member B sits on the Veterans‘ Affairs Committee. B, like
any other Member, may inquire as to the status of constituents‘
pending appeals to the Department of Veterans‘ Affairs. Obviously, in
making these inquiries, B should not suggest that the agency‘s budget
will be cut if B‘s constituents do not receive favorable determinations.
Example 7.
A constituent asks Member C for help with a pending
administrative claim. If the Member cannot substantiate that the
facts presented by the constituent are correct and complete, the
Member should state in any communications to the agency that the
information is ―according to my constituent.‖
Example 8.
A constituent business asks Member D for help getting
relief from agency regulations. Member D served on the committee
that drafted the legislation under which the regulations were
promulgated. Member D may tell agency officials of her view that the
way in which the legislation is being implemented is inconsistent with
the legislative language or intent.
Assisting Supporters
Because a Member‘s obligations are to all constituents equally,
considerations such as political support, party affiliation, or campaign contributions
should not affect either the decision of a Member to provide assistance or the
quality of help that is given. While a Member should not discriminate in favor of
political supporters, neither need he or she discriminate against them. As this
Committee has stated:
The fact that a constituent is a campaign donor does not mean
that a Member is precluded from providing any official assistance. As
long as there is no
quid pro quo
, a Member is free to assist all persons
equally.
26
26
House Comm. on Standards of Official Conduct,
Statement Regarding Complaints Against
Representative Newt Gingrich
, 101
st
Cong., 2d Sess. 66 (1990).
Casework
309
An individual‘s status as a donor may, however, raise an appearance of
impropriety. The Senate Select Committee on Ethics has expressed the issue as
follows:
The cardinal principle governing Senators‘ conduct in this area
is that a Senator and a Senator‘s office should make decisions about
whether to intervene with the executive branch or independent
agencies on behalf of an individual without regard to whether the
individual has contributed, or promised to contribute, to the Senator‘s
campaigns or other causes in which he or she has a financial, political
or personal interest. . . .
Because Senators occupy a position of public trust, every
Senator always must endeavor to avoid the appearance that the
Senator, the Senate, or the governmental process may be influenced by
campaign contributions or other benefits provided by those with
significant legislative or governmental interests. Nonetheless, if an
individual or organization has contributed to a Senator‘s campaigns or
causes, but has a case which the Senator reasonably believes he or she
is obliged to press because it is in the public interest or the cause of
justice or equity to do so, then the Senator‘s obligation is to pursue
that case. In such instances, the Senator must be mindful of the
appearance that may be created and take special care to try to prevent
harm to the public‘s trust in the Senator and the Senate. This does not
mean, however, that a Member or employee is required to determine if
one is a contributor before providing assistance.
27
The Senate Committee concluded that ―established norms of Senate behavior
do not permit linkage between . . . official actions and . . . fund raising activities.‖
28
House Members, too, should be aware of the appearance of impropriety that could
arise from championing the causes of contributors and take care not to show
favoritism to them over other constituents.
Assisting Non-Constituents
On occasion a Member‘s publicized involvement in legislation or an issue of
national concern will generate correspondence from individuals outside the district.
A private citizen may communicate with any Member he or she desires. However,
the Member‘s ability to provide assistance to such individuals is limited.
27
Senate Select Comm. on Ethics,
Investigation of Senator Alan Cranston
, S. Rep. 102-223,
102d Cong., 1
st
Sess. 11-12 (1991).
28
Id.
at 29.
310 HOUSE ETHICS MANUAL
The statute that establishes the Members‘ Representational Allowance
provides that the purpose of the allowance is ―to support the conduct of the official
and representational duties of a Member of the House of Representatives with
respect to the district from which the Member is elected.‖
29
This statute does not
prohibit a Member from ever responding to a non-constituent. In some instances,
working for non-constituents on matters that are similar to those facing
constituents may enable the Member better to serve his or her district. Other
times, the Member may serve on a House committee that has the expertise and
ability to provide the requested help. Of course, if a Member has personal
knowledge regarding a matter or an individual, he or she may always communicate
that knowledge to agency officials. As a general matter, however, a Member should
not devote official resources to casework for individuals who live outside the district.
When a Member is unable to assist such a person, the Member may refer the person
to his or her own Representative or Senator.
Government Procurement and Grants
Constituents frequently request congressional assistance with government
contracts or grants. These matters are subject to the same guidelines as other
casework. Thus, Members may generally forward introductory information to an
agency from a constituent firm or request information for a constituent on available
opportunities. On the other hand, an attempt to influence the outcome of a quasi-
judicial proceeding such as a formal contract dispute or a bid protest pending before
a board of contract appeals could trigger complaints from third parties that the
fairness and impartiality of the tribunal has been compromised.
30
Moreover,
experience has shown that contacts like these may be resented by the decision-
makers. Consequently, such efforts may do more harm than good to the
constituent‘s cause.
In assisting a private enterprise, a Member should be mindful that
congressional allowances, including those for staff, are available only for conducting
official business.
31
Assistance should not extend so far that the congressional office
is actually doing the work of the private business, rather than of the Congress.
Again, Members and employees should take care not to discriminate unfairly among
constituents,
e.g.
, on political grounds.
29
2 U.S.C. § 57b (emphasis added);
see also
Comm. on House Admin., U.S. House of
Representatives,
Members‘ Congressional Handbook
, Regulations Governing the Members‘
Representational Allowance (2001) (hereinafter ―
Members‘ Handbook
‖).
30
See
Peter Kiewit Sons‘ Co. v. U.S. Army Corps of Engineers
, 714 F.2d 163 (D.C. Cir. 1983).
31
31 U.S.C. § 1301(a);
see also
Members‘ Handbook
,
supra
note 29.
Casework
311
Example 9.
Member A may contact agency officials and request that
they meet with a constituent seeking a grant. Employee B on Member
A‘s congressional staff may accompany the constituent, but B should
make clear that he is not there as the constituent‘s agent. Care should
also be taken to avoid any inference of a threat to agency officials.
Example 10.
Constituent Z requests Member B‘s assistance with a
grant. Z is unfamiliar with the governing regulations and asks B if her
staff, being experienced in such matters, would prepare the application
on Z‘s behalf. It would not be appropriate for congressional staff to be
doing the work of a private party in this fashion.
Example 11.
Member C is approached by a constituent business for
help in getting a government agency to purchase its product. The
Member may provide assistance, but C should either (a) be personally
familiar with the company, product, and government requirements, or
(b) be willing to provide the same type of assistance to other, similarly
situated constituent businesses.
Communicating With Courts
Just as they are asked to intervene with agency officials responsible for
making on-the-record decisions, Members may also be asked to communicate with
judges in pending court cases. Most courts are subject to limits on
ex parte
communications which are at least as restrictive as those applicable to executive
agencies. Judges, whether serving at the federal, state, or municipal level, are
charged with performing their duties in an impartial manner. They are guided in
their actions by standards such as the following:
A judge shall accord to every person who has a legal interest in a
proceeding, or that person‘s lawyer, the right to be heard according to
law. A judge shall not initiate, permit, or consider
ex parte
communications, or consider other communications made to the judge
outside the presence of the parties concerning a pending or impending
proceeding . . . .
32
When a Member believes it necessary to attempt to affect the outcome in a
pending case, the Member has a variety of options. A Member who has relevant
information could provide it to a party‘s counsel, who could then file it with the
court and notify all parties. Alternatively, the Member could seek to file an
amicus
curiae
, or friend of the court, brief. Yet another option, in an appropriate case,
might be to seek to intervene as a formal party to the proceeding. A Member could
32
ABA Model Code of Judicial Conduct Canon 3B(7) (2000).
312 HOUSE ETHICS MANUAL
also make a speech on the House floor or place a statement in the
Congressional
Record
as to the legislative intent behind the law. A Member should refrain,
however, from making an off-the-record communication to the presiding judge, as it
could cause the judge to recuse from further consideration of the case.
When a Member does have personal knowledge about a matter or a party to a
proceeding, the Member may convey that information to the court through regular
channels in the proceeding (
e.g.
, by submitting answers to interrogatories, being
deposed, or testifying in court). Members and employees should also be aware that
special procedures are to be followed whenever they receive a subpoena seeking
information relating to official congressional business.
33
The House Office of
General Counsel should be consulted for further guidance.
Contacting Other Governments
Besides intervening with federal agencies and personnel, Members may also
be asked to assist constituents in their dealings with state, local, and foreign
governments. Members may do so. Their communications should adhere to the
same general principles described above that guide their contacts with federal
agencies.
34
Example 12.
Constituent Z has a claim pending before the state
Workers‘ Compensation Board. If Member A would do the same for
any similarly situated constituent, A may write to the state board
inquiring as to the status of Z‘s claim and asking for expedited review
if such would be consistent with the board‘s governing law and
regulations. A may not imply that the state will receive increased
federal aid in return for a disposition favorable to Z.
Example 13.
General Widget, Inc., an old and respected manufacturer
in Member B‘s district, would like to take advantage of the opening of
potential Eastern European markets for its products. GW asks B for a
letter of introduction to a certain foreign Minister of Finance. B
writes:
33
See
House Rule 8.
34
An eighteenth century law, the Logan Act (18 U.S.C. § 953), restricts private
correspondence with foreign governments. This statute, which appears to have been a reaction to
the attempts of one citizen to engage in private diplomacy, has never been the basis of a prosecution,
and this Committee has publicly questioned its constitutionality. House Comm. on Standards of
Official Conduct,
Manual of Offenses and Procedures, Korean Influence Investigation
, 95
th
Cong., 1
st
Sess. 18-19 (Comm. Print 1977). Members should be aware, however, that the law remains on the
books.
Casework
313
Dear Minister:
General Widget, Inc. has been doing business in my
congressional district for 70 years. Now it seeks the
opportunity to do business in your country as well. GW‘s
executives would be happy to describe to you its wide
range of products. I would appreciate any consideration
you could show to GW and its representatives.
Sincerely,
B
Member of Congress
B‘s letter is appropriate. If B writes this letter on GW‘s behalf, B
should be willing to write such a letter for any similarly situated
constituent company.
Intervening With Nongovernmental Parties
Members are often asked to assist constituents in their dealings with
government agencies. In some circumstances, however, the Member may be asked
to assist one private party in dealings with another private individual or
organization. For example, a constituent company seeking subcontracts may ask a
Member for a letter of introduction to another company which has been awarded
federal funds. As another example, two businesses may ask a Member to act as a
mediator in a private dispute.
Although a Member may take actions that the Member believes will assist
the congressional district, intervening in private matters requires the exercise of
particular caution. Unlike agency personnel, many private businesses are not used
to dealing with Members of Congress on a regular basis. Thus, a communication
from a Member‘s office may be viewed as an official endorsement of a private
enterprise, or as pressure to take action in order to please the Member, rather than
based on the merits. In this context, again, Members and employees should bear in
mind that official resources should not be devoted to doing the work of private
businesses.
35
Confidentiality of Records
The ―Privacy Act‖ protects the records maintained by government agencies
from disclosure, except for specified purposes or with the permission of the person to
whom the record pertains.
36
Although the statute does permit disclosure ―to either
35
See
31 U.S.C. § 1301(a);
see generally
Members‘ Handbook
,
supra
note 29.
36
5 U.S.C. § 552a(b).
314 HOUSE ETHICS MANUAL
House of Congress,‖
37
some agencies require Members to show written consent from
their constituents before they will release the constituents‘ records to the Members.
The Privacy Act does not apply to congressional documents. Historically, however,
communications between Members and constituents have been considered
confidential and should generally not be made public without the constituent‘s
consent.
Personal Financial Interests
Just as Representatives may vote on legislation that affects them as
members of a class rather than as individuals, Members and employees may
generally contact federal agencies on issues in which they, along with their
constituents, have interests.
38
A constituent need not be denied congressional
intercession merely because a Member or the staff assistant assigned to a particular
issue may stand to derive some incidental benefit along with others in the same
class. Thus, Members who happen to be farmers may nonetheless represent their
constituents in communicating views on farm policy to the Department of
Agriculture. Only when Members‘ actions would serve their own narrow, financial
interests as distinct from those of their constituents should the Members refrain.
See Chapter 5 on ―Member Voting and Other Official Activities on Matters of
Personal Interest.‖
As always, Members and employees must guide their actions in this regard
by the Code of Official Conduct, House Rule 23. The Code prohibits Members and
staff from allowing compensation to accrue to their benefit ―by virtue of influence
improperly exerted‖ from a position in Congress.
39
Moreover, an employee who files
a Financial Disclosure Statement may not contact a court or executive branch
agency with respect to non-legislative matters affecting any entity in which the
individual has a significant financial interest, unless the employing Member grants
a written waiver and files it with the Committee on Standards of Official Conduct.
40
Gifts and Compensation for Casework
When assisting constituents, Members and staff should be aware that the
federal criminal code prohibits the receipt of anything of value in return for or
37
Id.
§ 552a(b)(9).
38
Conflict of interest issues that arise in connection with a Member‘s financial interests and
official activities are discussed in Chapter 5 of this Manual.
39
House Rule 23, cl. 3;
see also
Code of Ethics for Government Service ¶ 5, H. Con. Res. 175,
85
th
Cong., 2d Sess., 72 Stat., pt. 2, B12 (1958), reprinted in the appendices.
40
House Rule 23, cl. 12. See Chapter 5 for further details on staff conflicts of interest.
Casework
315
because of official actions.
41
Gifts offered as a thank you for casework assistance
should generally be declined.
Members and employees also may not ask for or receive compensation for
―services rendered‖ in relation to matters or proceedings in which the United States
is a party or has an interest.
42
No funds or things of value, other than one‘s official
salary, may be accepted for dealing with an administrative agency on behalf of a
constituent.
Caution should always be exercised to avoid the appearance that solicitations
of campaign contributions from constituents are connected in any way with a
legislator‘s official advocacy. A discussion of this problem was offered by Senator
Douglas:
It is probably not wrong for the campaign managers of a
legislator to request contributions from those for whom the legislator
has done appreciable favors, but this should never be presented as a
payment for the services rendered. Moreover, the possibility of such a
contribution should never be suggested by the legislator or his staff at
the time the favor is done. Furthermore, a decent interval of time
should be allowed to lapse so that neither party will feel that there is a
close connection between the two acts. Finally, not the slightest
pressure should be put upon the recipients of the favors in regard to
the campaign. It should be clearly understood that any gift they make
is voluntary and there will be no question of reprisals or lack of future
help by the legislator if the gift is withheld. In other words, any
contribution should be not a
quid pro quo
but rather a wholly
voluntary offering based upon personal friendship and a belief in the
effectiveness of the legislator sharpened perhaps by individual
experience.
43
If a Member were to ask for political support as a
quid pro quo
for official
action, the Member could be subject to extortion charges. In overturning the
conviction of a state legislator, the Supreme Court observed that soliciting
campaign contributions from constituents with legislative business could be
extortion, ―but only if the payments are made in return for an explicit promise or
undertaking by the official to perform or not to perform an official act.‖
44
The Court
held in that case that, given the realities of financing campaigns, ―[w]hatever
41
18 U.S.C. § 201. See Chapter 2 for a discussion of the bribery and illegal gratuities laws.
42
18 U.S.C. § 203;
see also
House Rule 25, cl. 6.
43
Douglas,
supra
note 1, at 89-90.
44
McCormick v. United States
,
supra
note 5, 500 U.S. at 273.
316 HOUSE ETHICS MANUAL
ethical considerations and appearances may indicate,‖ it is generally not a federal
crime for legislators to ―act for the benefit of constituents or support legislation
furthering the interests of some of their constituents, shortly before or after
campaign contributions are solicited and received from those beneficiaries.‖
45
Other limitations may affect assistance to private individuals, even when no
compensation is involved. Under House Rules and federal law, employees usually
may not represent individuals or organizations before the government other than in
the performance of official duties.
46
Although Members are not subject to the same
statutory limitations, representing a private entity before the government outside of
official duties may be inconsistent with a representative‘s obligations to serve the
public interest.
47
Recommendations for Government Employment
Members of the House are frequently asked to provide letters of
recommendation on behalf of persons seeking employment or appointment to
positions in the federal government, state or local governments, or in the private
sector.
48
Writing letters of recommendation for constituents is consistent with the
representational duties of Members of Congress. However, when writing letters of
recommendation, Members should adhere to the Code of Ethics for Government
Service, which requires Members to ―never discriminate unfairly by the dispensing
of special favors or privileges to anyone, whether for remuneration or not.‖
49
Requests from similarly situated constituents should therefore be handled in
comparable fashion, without regard to party affiliation, campaign support, or other
such factors.
This section summarizes the laws and rules governing the ability of Members
to provide employment recommendations for positions with federal, state, or local
governments and the private sector, and also addresses the use of official letterhead
and other miscellaneous issues related to preparing letters of recommendation.
45
Id.
46
18 U.S.C. § 205; House Rule 25, cl. 6. See Chapter 5 of this Manual for a discussion of
these provisions.
47
See, e.g.,
Code of Ethics for Government Service ¶¶ 5 and 7,
supra
note 39.
48
The provisions governing written recommendations apply equally to oral
recommendations; therefore, when a ―letter of recommendation‖ is used, the guidance provided above
also applies to oral recommendations.
49
Code of Ethics for Government Service ¶ 5,
supra
note 39.
Casework
317
―Competitive Service‖ Positions With the Federal Government
Under amendments to the Hatch Act that were enacted in 1996,
50
Members
may make recommendations, either orally or in writing, on behalf of applicants for
competitive service
51
positions in the executive branch of the federal government.
52
However, as detailed below, there are significant limitations on the content of such
recommendations. The statutes governing recommendations for the competitive
service apply equally to administrative law judge positions, career positions in the
Senior Executive Service, and any position in the ―excepted service‖
53
that is not
confidential or policy-related in nature.
54
Federal hiring officials may consider a recommendation for a competitive
service position only if the content of the recommendation complies with established
guidelines. Federal hiring officials may never consider a recommendation for a
competitive service position that contains direct or indirect references to the job
applicant‘s political affiliation or membership.
55
The permissible contents of
recommendations for a competitive service position depend on whether the Member
has personal knowledge of the applicant‘s work ability or performance.
If the Member does not have personal knowledge of the applicant‘s work
ability or performance, the letter of recommendation may address only the
applicant‘s character or residence.
56
In that circumstance, the hiring official may
not consider any portion of a recommendation that discusses the specific
qualifications of an applicant or that assesses the applicant‘s suitability for
employment with a particular agency or for a particular job.
57
50
Pub. L. 104-197, § 315, 110 Stat. 2416 (1996).
51
The competitive service is defined at 5 U.S.C. § 2102. Essentially, the competitive service
includes all civil services positions other than statutorily excepted positions, non-career Senior
Executive Service positions, and political positions. Certain positions, such as agency fellowships, do
not fall within the definition of the competitive service, but agencies sometimes require compliance
with the competitive service provisions when considering recommendations for such positions. The
Committee recommends consulting with individual agencies if there is any question whether a
position falls within the competitive service or is governed by the same guidelines.
52
Prior to the 1996 amendments, Members could provide only a statement related to the
character and residence of the applicant unless the agency requested an evaluation of the applicant's
qualifications.
See
Pub. L. 103-94, 107 Stat. 1001, 1006 (1993) (codified at 5 U.S.C. § 3303).
53
The excepted service is defined at 5 U.S.C. § 2103.
54
Memorandum from James B. King, Director, Office of Personnel Management, to Heads of
Executive Departments and Agencies, at 3 (Apr. 7, 1997) (hereafter ―
OPM Memorandum
‖).
55
5 U.S.C. § 3303 and 5 U.S.C. § 2302(b)(2).
56
5 U.S.C. § 3303. A recommendation under this statute based on the character and
residence of the applicant may be offered only by a Representative or a Senator.
57
OPM Memorandum
,
supra
note 54, at 2.
318 HOUSE ETHICS MANUAL
Example 14.
Constituent Z asks Member A to provide a letter of
recommendation to Federal Agency in connection with Z‘s application
for a competitive service position. A may provide a letter of
recommendation concerning Z‘s character and residence. Hiring
Official at Federal Agency may consider a recommendation similar to
the following: ―I have known Z, a resident of my state, for many years.
Z is a fine person and has always been reliable, has shown good
judgment and integrity, and is highly regarded in the community.‖
Hiring Official could not consider any portion of the letter if it also
referred to Z‘s political affiliation or suitability for employment in a
particular agency or a particular job (
e.g.
, ―I would like you to consider
Z for the currently vacant position of policy analyst in your office.‖).
If the Member has personal knowledge of the applicant‘s work ability or
performance, the federal hiring official may consider a recommendation based on
the Member‘s personal knowledge or records that contains an evaluation of the job
applicant‘s work performance, ability, aptitude, general qualifications, character,
loyalty, or suitability.
58
Such personal knowledge of applicant‘s work can be the
result of any working association of the Member and the applicant, whether or not
related to the Member‘s official responsibilities.
Example 15.
A former staff member asks his former employing
Member, B, to provide a letter of recommendation to Federal Agency in
support of his application for a competitive service position. Member B
may prepare a letter of recommendation based on the former
employee‘s prior work performance, ability, aptitude, and character. A
hiring official at Federal Agency may consider the letter of
recommendation.
―Political‖ Positions With the Federal Government
With respect to applications for ―political‖ positions, such as Schedule C or
non-career Senior Executive Service positions, federal hiring officials may consider
any information a Member includes in a recommendation, even if the
recommendation is not based on the Member‘s personal knowledge or records. The
information permitted to be considered includes, but is not limited to, statements
about character and residence, evaluations of work qualifications, statements about
political affiliation, and statements about the suitability for employment with a
particular agency or a particular job. (The matter of whether such a letter may be
sent on official letterhead is discussed below.)
58
5 U.S.C. § 2302(b)(2). A recommendation under this statute based on personal knowledge
or records may be offered by anyone and is not limited to Representatives and Senators.
Casework
319
Example 16.
Employee asks Member C to provide a letter of
recommendation to Federal Agency in connection with employee‘s
interest in a Schedule C (
i.e.
, political) position. Member C may
prepare a letter to Federal Agency that endorses employee for the
position based on various factors, including prior work performance,
ability, aptitude, character, and political considerations. A hiring
official at Federal Agency may consider the letter of recommendation
in its totality.
Postal Service
Under federal law, Members of Congress are prohibited from making or
transmitting to the Postal Service ―any recommendation or statement, oral or
written‖ on behalf of a person under consideration for a position with the Postal
Service except for a ―statement‖ relating solely to the character and residence of
such person; however, if the Postal Service so requests, a Member may provide a
statement regarding the applicant‘s qualifications.
59
Military Services and Academies
Under federal law, military services or academies may consider any relevant
information a Member chooses to provide in a letter of recommendation. With
respect to letters to military promotion boards, congressional offices should consult
with the particular promotion board or the constituent service member to ensure
compliance with applicable regulations. For example, although officer promotion
boards may consider letters of recommendation authored by third parties, such
letters should be submitted directly by the officer concerned, and they cannot be
accepted from the third party.
60
State Governments and the Private Sector
Unless otherwise prohibited by state law or by corporate policy, a hiring
official may consider any information the Member chooses to provide in a letter of
recommendation for appointments or positions in state and local governments or
the private sector. Members may provide statements about character and
residence, evaluations of work qualifications, statements about political affiliation,
and statements about the suitability for employment with a particular agency or a
particular job.
59
39 U.S.C. § 1002(b), (e)(2).
60
Under 10 U.S.C. §§ 615 and 14107, active and reserve officer promotion boards may
consider ―information communicated to the board by the officer.‖ (Emphasis added).
See also
Department of Defense Instruction 1320.14, Commissioned Officer Promotion Program Procedures,
September 24, 1996.
320 HOUSE ETHICS MANUAL
Example 17.
Constituent Z, who is a personal friend of Member D,
asks D for a letter of recommendation concerning Z‘s interest in a
position with a corporation in Member D‘s district. Many private
parties are not used to dealing with Members of Congress on a regular
basis. Accordingly, Members should exercise caution when submitting
a letter of recommendation to a private company or individual to avoid
even the appearance of improper or undue influence on the private
party. In this case, D may be able to provide the requested
recommendation, but she should proceed cautiously and should consult
with the Standards Committee.
Letterhead
When writing letters of recommendation, Members must carefully assess
whether the letter may be sent on official congressional stationery. Official
stationery, like other official resources, may be used only for official purposes.
61
Whether a particular letter of recommendation may be considered official business,
and may therefore be written on official letterhead, depends on whether the
proposed letter may be mailed using the frank under the regulations of the
Franking Commission.
62
According to Franking Commission regulations, Members may use the frank
to mail letters of recommendation for the following:
An applicant seeking admission to a military academy;
An applicant seeking a political appointment to a federal or state government
position; or
An applicant who is a current employee, was a former employee, or has
worked with the Member in an official capacity and the letter relates to the
duties performed by the applicant.
63
The Franking Commission broadly interprets the authority to write letters of
recommendation on behalf of a person ―who has worked with the Member in an
61
31 U.S.C. § 1301(a);
Members‘ Handbook
,
supra
note 29.
62
Any question regarding whether a particular letter may be mailed under the frank should
be addressed to the Franking Commission, formally known as the Commission on Congressional
Mailing Standards of the House of Representatives.
63
Commission on Congressional Mailing Standards, U.S. House of Representatives,
Regulations on the Use of the Frank by Members of the House of Representatives
, at 13 (June 1998).
Members may also send under the frank general letters of introduction that are not endorsements or
recommendations.
Id
.
Casework
321
official capacity.‖ Such persons may include, among others, persons employed (or
formerly employed) by a federal, state, or local government agency who worked with
the Member or the Member‘s staff on matters relating to the Member‘s official
duties, as well as persons working in the private sector (such as attorneys,
university professors, or persons affiliated with ―think tanks‖) who have assisted
the Member‘s office on legislative matters.
If the criteria specified above are met, letters of recommendation may be
prepared on official stationery for persons seeking jobs in the private sector as well
as federal, state, or local governments; otherwise, the letter of recommendation
must be prepared on the Member‘s personal stationery.
Example 18.
A social acquaintance of Member E, who has not
previously worked with E in any official capacity, asks E to write a
letter of recommendation to Federal Agency in support of his
application for a competitive service position. E may prepare a letter
of recommendation but must do so on personal stationery.
Example 19.
An Executive Director of a nonprofit organization, who
assisted Member F with a legislative initiative, asks F to provide a
letter of recommendation to a corporation in Member F‘s district in
support of Executive Director‘s application for a position with the
corporation. F may provide a letter of recommendation on official
letterhead and mail it by means of the congressional frank.
Miscellaneous Considerations
In addition to the standards and requirements discussed above, Members
should be mindful of the following restrictions set forth in federal criminal statutes:
A candidate, including a Member of Congress, may not promise to appoint, or
to use influence or support in appointing, any person to any public or private
position for the purpose of procuring support for his or her candidacy.
64
No one may promise any employment, position, compensation, contract,
appointment, or other benefit provided for or made possible by any Act of
Congress, to any person in return for political activity or support in
connection with any general or special election to any political office, or in
connection with any primary election or political convention or caucus held to
select candidates for any political office.
65
64
18 U.S.C. § 599.
65
18 U.S.C. § 600.
323
OFFICIAL ALLOWANCES
Overview
Members of Congress receive a Members‘ Representational Allowance
(―MRA‖), which is available to support the conduct of official and representational
duties to the district from which they are elected. Statutory authorizations often
note that such allowances are for expenses of an ―official purposes‖ or a ―strictly
official‖ nature.
1
Legal and ethical problems arise when these allowances are used for
other than official expenses, such as when they are converted to personal or campaign
use. This chapter discusses the official expense allowance and the franking privilege.
Members and staff seeking guidance on matters relating to the MRA or the franking
privilege should first review the
Members‘ Handbook
or the
Franking Manual
before
consulting this chapter.
Members‘ Representational Allowance
During each session of Congress, each Member has a single MRA available to
support the conduct of official and representational duties to the district from which
elected. Committee on House Administration regulations state that the MRA is to
be used to pay ―ordinary and necessary expenses incurred by the Member or the
Member‘s employees within the United States, its territories, and possessions in
support of the conduct of the Member‘s official and representational duties to the
district from which elected.‖
2
The MRA may only be used for official and
representational expenses. The MRA may not be used to pay for any expenses
related to activities or events that are primarily social in nature, personal expenses,
campaign or political expenses, or House committee expenses.
3
Members may be
personally liable for misspent funds or expenditures exceeding the MRA.
4
The rules governing the MRA include the following restrictions:
The MRA may be used only for official expenses;
The MRA may not be converted to personal or campaign use or applied
toward any unofficial activity;
As a general matter, only the MRA and Members‘ personal funds may be
used to defray official expenses;
1
See, e.g.
, 2 U.S.C §§ 42c, 43b, 46g, 46g-1, 56, 122a.
2
Comm. on House Admin.,
Members‘ Congressional Handbook
(hereinafter ―
Members‘
Handbook
‖).
3
Id.
: Members‘ Representational Account, General.
4
Id.
324 HOUSE ETHICS MANUAL
House Rule 24, which sets forth the prohibition on unofficial office accounts,
bars the use of private funds or in-kind support from outside sources for
official activities;
In addition to possibly violating House rules, the misuse of the MRA may also
subject a Member or employee to criminal prosecution and actions to recover
the misspent funds; and
The Committee on House Administration governs certifications,
documentation, and other standards for reimbursement from the MRA; that
Committee‘s regulations are set forth in the
Members‘ Handbook
.
Example 1
. Member A‘s wife is a travel agent. A may not make
official travel arrangements through his wife‘s agency because she, and
thus A, would then be benefiting monetarily from the expenditure of
official funds.
Example 2.
Member B‘s district manager is part owner of a building in
the district. B may not rent space in the employee‘s building for the
congressional district office.
Example 3.
Member C is very interested in the matter of childhood
literacy and would like to have her congressional staff, during official
hours, work with a local literacy group in enlisting volunteer tutors,
locating children who need help, and making arrangements for the
volunteers to work with these children. It is not permissible for the
office to undertake such a project because congressional staff may not
engage in such a charitable undertaking while on official congressional
time and using any official House resources.
In the 100
th
Congress, the Committee on Standards of Official Conduct
investigated charges that a Member had allowed his former law firm to use official
resources.
5
The Standards Committee found that over a nine-year period, the firm
had been permitted access to government photocopy services, furniture, supplies,
long distance telephone lines, and a receptionist‘s services. For this and other
violations, the House reprimanded the Member.
A Member is responsible for assuring that resources provided for support of
official duties are applied to the proper purposes.
6
In the 101
st
Congress, the
Standards Committee determined that a Member was ―remiss in his oversight and
5
House Comm. on Standards of Official Conduct,
In the Matter of Representative Austin J.
Murphy
, H. Rep. 100-485, 100
th
Cong., 1
st
Sess. 4 (1987).
6
Id
.
Official Allowances
325
administration of his congressional office‖ regarding a mailing sent out by staff over
his signature on his official letterhead.
7
The mailing did not comport with House
Rule 23, clause 11, in that it promoted a cruise sponsored by a private organization
and requested that follow-up contacts go to the Member‘s congressional office.
The
Members‘ Handbook
provides examples of items for which
reimbursement with the official allowances may be permitted, as well as a list of
prohibited expenditures. Included among the permissible uses are expenditures for
certain travel, office equipment leases, district office leases, stationery,
telecommunications, printing and product services, costs of audio and video
recordings produced in the House Recording studio, postage, computer services, and
other expenses related to a Member‘s official business. Included among
impermissible uses are expenditures for greeting cards, social events or activities,
consultants, vendor security deposits, dues and membership fees, educational
expenses to obtain any level of educational degree, expenses associated with
acquiring or maintaining professional certification or licensing, and employment
relocation expenses.
Anything supported with official funds is an official resource, including
congressional offices. The House Office Building Commission, comprised of the
Speaker, the Majority Leader, and the Minority Leader, has issued regulations
governing the use of House facilities.
8
These regulations generally ban solicitation
and commercial activity, limit photography, restrict use of meeting rooms to
congressionally related purposes, and impose various health and safety restraints.
In addition, as is true of all official resources, congressional offices may not be used
for the conduct of campaign or political activities.
Example 4.
Member D is planning to film a campaign commercial. D
may not film in her congressional office because that would be using an
official resource for a campaign purpose. She may film her commercial
outside the Capitol in the areas designated by the Sergeant-at-Arms as
part of the public space.
Other entities may have jurisdiction over the use of particular official
resources. The Joint Committee on Printing, for example, publishes
Government
Printing and Binding Regulations
pertaining to government documents. These
regulations caution:
7
House Comm. on Standards of Official Conduct,
Statement Regarding Complaints Against
Representative Newt Gingrich
, 101
st
Cong., 2d Sess. 60 (1990).
8
House Office Building Comm‘n,
Rules and Regulations Governing the House Office
Buildings, House Garages and the Capitol Power Plant
(February 1999) (available from the
Speaker‘s Office).
326 HOUSE ETHICS MANUAL
No Government publication . . . shall contain . . . material which
implies in any manner that the Government endorses or favors any
specific commercial product, commodity, or service.
The Joint Committee on Printing has advised that commercial advertising is
not a proper or authorized function of the government. Such advertisements are
unfair to those who do not so advertise in that, whether intentionally or not, they
are frequently made to appear to have the sanction of the government.
Furthermore, the publication of such advertisements is unjust to the public in that
the advertisers profit thereby at the expense of the government, particularly as a
considerable number of the publications are circulated free, at least in part, under
government frank.
Members should also bear these regulations in mind in the context of the
common practice of inserting an Extension of Remarks in the
Congressional Record,
noting the accomplishments of a district business. While it is usually appropriate
publicly to congratulate a local business for achieving an award or celebrating a
significant anniversary, Members should refrain from overtly commercial
promotions. See Chapter 10 on official and outside organizations for further
information.
Unofficial Office Accounts
House Rule 24 prohibits ―unofficial office accounts.‖ Accordingly, outside
private donations, funds, or in-kind goods or services may not be used to support the
activities of, or pay the expenses of, a congressional office. Only appropriated funds
or Members‘ personal funds may be used for this purpose.
9
House Rule 24 has been
in effect since 1977. Congress codified this rule into law governing both Chambers
as part of the Legislative Branch Appropriations Act, 1991.
10
Under federal law and
House rules, however, funds from a Member‘s principal campaign committee may
be used to pay for certain congressional office expenses. See Chapter 4 on campaign
activity for further information.
The House Commission on Administrative Review (95
th
Congress) proposed
House Rule 24 as a ―wall‖ between private funds and official allowances. The House
adopted most of the Commission‘s recommendations on March 2, 1977, as revisions
to the House Rules of Conduct.
11
The Commission explained the requirement that
official expenses of a Member be paid exclusively from official, appropriated funds
as follows:
9
See also
31 U.S.C. § 1342 (prohibiting acceptance of voluntary services without specific
authorization (augmentation of appropriations)).
10
See
2 U.S.C. § 59e(d).
11
H. Res. 287, 95
th
Cong., 1
st
Sess. (1977).
Official Allowances
327
The Commission strongly believes that private funds should be
used only for politically related purposes. Official allowances should
reflect the necessary cost of official expenses. Increasing official
allowances . . . to eliminate reliance on private sources represents a
small cost to the public for the benefits to be derived. To suggest
otherwise would be to accept or condone the continuation of the
present system which, at the very least, allows for the appearance of
impropriety, and, at worst, creates a climate for potential ―influence
peddling‖ through private financing of the official expenses of Members
of Congress.
12
Several rules in addition to House Rule 24 implement the Commission‘s
recommendation that private financing of official expenses be eliminated. House
Rule 23, clause 7, requires that a Member treat all all proceeds from testimonial
dinners or other fund-raising events as campaign contributions.
13
House Rule 23,
clause 6(c), provides that campaign funds may be used only for ―bona fide campaign
or political purposes.‖ As a general matter, these provisions mandate that private
funds be used only to support private or political, and not official, activities.
No specific definition of bona fide campaign or political purposes exists in the
rules or legislative history of the provision. What would be an official, as opposed to
a campaign, expense depends on the particular facts of the situation.
14
During floor
debate on adoption of the rule, it was noted, for example, that travel to a Member‘s
home district might be considered a political expense for which private campaign
funds could be used if the purpose of the trip was political.
15
Similarly, the expense
of taking certain individuals to dinner, if it is determined to be a political meeting
rather than one relating to official duties, could be paid from campaign accounts.
16
Members often have discretion in determining whether an event will be
―political‖ or ―official,‖ with the following caveat: ―[The] committee is of the opinion
that once the Member makes his determination, he is bound by it. A single event
12
House Comm. on Admin. Review,
Financial Ethics
, H. Doc. 95-73, 95
th
Cong., 1
st
Sess. 18
(1977).
13
Members often assist charities in their fundraising efforts. This rule does not, of course,
mean that funds that a Member helps to raise for charity are deemed campaign contributions.
Solicitations for charity are discussed in Chapter 10 on official and outside organizations.
14
See
123
Cong. Rec
. 5900 (Mar. 2, 1977) (Statement of Rep. Frenzel).
15
Id
.
16
Id.
at 5908 (colloquy between Reps. Evans and Bauman).
328 HOUSE ETHICS MANUAL
cannot, for the purpose of the House rules, be treated as
both
political and official.‖
17
Therefore, in
Advisory Opinion No. 6
the Standards Committee permitted a
Member to designate a town meeting in areas newly added to his district as either a
political (campaign) event or official (representational) one. But, by sending
announcements of the meeting under the frank (which can be used only in the
conduct of official business), the Member defined the event as official and, thus,
could not use campaign or other private funds to conduct, promote, or advertise it
without violating House Rule 24 or House Rule 23, clause 6(c).
18
See Chapter 10 on
official and outside organizations for the rules on hosting conferences and town hall
meetings.
The legislative history of the unofficial office account rule indicates that the
prohibition applies to accounts maintained by third parties for a Member‘s benefit,
even if they are not maintained for the Member‘s direct use. The prohibition
extends to any ―process whereby funds are received or expended‖ regardless of
whether an actual account or repository is maintained.
19
In an interpretation of the
unofficial office account prohibition, the House Select Committee on Ethics of the
95
th
Congress found the private, in-kind contribution of goods or services for official
purposes to be banned under House Rule 24.
20
The Select Committee found,
however, that the following would not violate House Rule 24:
Services provided by units of federal, state, or local government;
The occasional use of privately owned space to meet with constituents, when
no public accommodations are reasonably available; and
Intern or volunteer programs in a Member‘s office that are primarily of
educational benefit to the intern, as opposed to primarily benefiting the
Member or office, and that do not give undue advantage to special interest
groups. However, Members and their staffs may not personally raise,
receive, or disburse any private contributions for intern programs associated
with their office.
21
Note that while Members may accept the services of other units of
government for official events without violating House Rule 24, they may not
17
House Comm. on Standards of Official Conduct,
Advisory Opinion No. 6
(Sept. 14, 1982)
(emphasis in original),
reprinted in
128
Cong. Rec
. H7294 (Sept. 21, 1982) and in the appendices to
this Manual.
18
Id
.
19
123
Cong. Rec
. 5941 (colloquy between Reps. Panetta and Obey).
20
House Select Comm. on Ethics,
Advisory Opinion No. 6
(May 9, 1977),
reprinted in
Final
Report of the Select Committee on Ethics
, H. Rep. 95-1837, 95
th
Cong., 2d Sess. app. at 64-66 (1979)
(hereinafter ―
Final Report
‖), and in the appendices to this Manual.
21
Intern programs are discussed in Chapter 7 on staff rights and duties.
Official Allowances
329
conversely use official congressional resources to do the work of other entities, even
other public entities.
Members and staffers are sometimes offered scholarships to participate in
study programs that will assist them in the performance of their official duties. The
Standards Committee has determined that accepting tuition, room, and board
expenses to attend such a program does not violate House Rule 24, provided that
the following criteria are met:
The scholarship payments must be made from a sponsoring accredited
educational institution of higher learning;
The program must be primarily of educational benefit to the
participants;
Scholarship assistance may not be limited to congressional
participants, but must be available to other, similarly situated
individuals;
The House employee‘s participation may not in any way give undue
advantage to special interest groups or others with a direct interest in
legislation; and
Members and employees may not personally raise, receive, or disburse
contributions to support the program.
The
Final Report
of the Select Committee also notes that House Rule 24 ―is
not intended in any way to restrict the Member‘s use of his personal funds.‖
22
This
principle was reiterated in the statutory codification of House Rule 24.
23
Thus, for
example, Members may establish petty cash funds out of their personal funds to pay
for miscellaneous office expenses.
24
Example 5.
Member E would like to decorate his House office in a
modern style of furniture not available from Office Furnishings. E
may not accept the offer of a furniture store to supply his office with
free furniture. E may purchase the furniture of his choice with his own
money.
22
Final Report
,
supra
note 20, at 25.
23
See
2 U.S.C. § 59e(i).
24
Final Report
,
supra
note 20, at 25.
330 HOUSE ETHICS MANUAL
Example 6.
The local cable television company in Member F‘s district
offers her free cable service in her office so that her district staff may
monitor events on the House floor. F may not accept the offer.
Official Travel
Official travel is not subject to the time limits imposed by the House gift rule
(House Rule 25, clause 5).
25
To receive reimbursement, however, a House traveler
must follow the usually traveled routes. A traveler who chooses an indirect route or
stops along the way for nonofficial purposes will be personally responsible for any
added expense.
26
The Committee on House Administration‘s regulations encourage the official
use of travel awards acquired while on official business. The
Members‘ Handbook
states:
Free travel, mileage, discounts, upgrades, coupons, etc., awarded at
the sole discretion of a company as a promotional award may be used
at the discretion of the Member or the Member‘s employee. The
[Committee on House Administration] encourages the official use of
these travel promotional awards wherever practicable.
The Ethics Reform Act of 1989 clarified one point regarding the use of official
and campaign vehicles.
27
The Bipartisan Task Force wished to approve the
incidental use of these vehicles for nonofficial or nonpolitical purposes, respectively,
to reflect the reality that a Member may attend numerous events in the course of a
single day, some of which may be official in nature while others are political.
28
It
would be impractical under such circumstances to require the Member to keep
switching cars as the Member travels from one function to the next. Members
should, however, maintain records of the mileage attributable to official, political,
and personal trips to ensure that no account is subsidizing another and that any
crossover use of a vehicle is indeed incidental. Thus, with respect to nonofficial use
of official vehicles, the Task Force recommended ―that such incidental use should be
during the course of and along the route of a day‘s official itinerary, incidental to the
day‘s official business,
de minimis
in nature, frequency and time consumed, and
25
The matter of privately-sponsored, officially-connected travel is discussed in Chapter 3.
26
Members‘ Handbook
, Travel: Combined Travel.
27
Pub. L. 101-194, § 503, 802(d)-(e), 103 Stat. 1716, 1773 (1989) (codified at 31 U.S.C. § 1344
note and 2 U.S.C. § 29d note).
28
House Bipartisan Task Force on Ethics,
Report on H.R. 3660
, 101
st
Cong., 1
st
Sess. 34-36,
60 (Comm. Print, Comm. on Rules 1989),
reprinted in
135
Cong. Rec.
H9253, H9263, H9270 (daily
ed. Nov. 21, 1989) (hereinafter ―
Bipartisan Task Force Report
‖).
Official Allowances
331
otherwise not constitute a significant activity or event.‖
29
During the 109
th
Congress, the House Rules were amended to permit a Member to lease or purchase
a motor vehicle with campaign funds and to use that vehicle on an unlimited basis
for travel for both campaign and official House purposes. See Chapter 4 on
campaign activity for further guidance.
Example 7.
Member G has four official events to attend in his district
one day. He will be traveling between events in the car leased for the
use of his congressional district office and paid for out of official
expenses allowance. As he drives from the second to the third event,
he will pass by the dry cleaner. He may stop to pick up his dry
cleaning, as it would be a permissible incidental nonofficial use of the
car.
The Committee on House Administration should be consulted before seeking
reimbursement from official allowances for official mileage. The Federal Election
Commission should be consulted for guidance on reimbursement to the campaign
for any personal mileage.
False Claims and Fraud
Federal law provides that official funds may be used only for the purposes for
which they are appropriated.
30
When funds are used other than for their intended
purposes, the misused funds may be recovered by the government for repayment to
the United States Treasury.
The use of the MRA for other than official purposes, including double billing
and claims for nonexistent expenses, could subject a Member, officer, or employee to
civil penalties under the False Claims Act.
31
Any citizen may initiate such a suit, in
the name of the United States, by alleging that false, fraudulent, or fictitious claims
have been made. The Department of Justice may then take over the suit.
32
The
government has also initiated civil suits against Members subsequent to their
criminal prosecution for the same or related conduct. In one such suit, for example,
the government contended that a former Member had used, and permitted his
family and friends to use, his official telephone credit card to charge personal calls.
33
29
Id.
at 35, 135
Cong. Rec
. H9263.
30
31 U.S.C. § 1301(a).
31
31 U.S.C. § 3729. A civil penalty of $5,000 to $10,000, plus 3 times the amount of damages
that the government sustains, may be imposed for knowing violations.
32
31 U.S.C. § 3730.
33
United States v. Eilberg
, 507 F. Supp. 267, 272-73 (E.D. Pa. 1980);
see also
United States
v. Eilberg
, 536 F. Supp. 514 (E.D. Pa. 1982).
332 HOUSE ETHICS MANUAL
Committee on House Administration regulations require Members to certify
and document all expenses before funds may be disbursed from the MRA.
34
The use
of money received by submitting such a voucher for other than official expenses may
involve a fraud against the government, in violation of 18 U.S.C. § 1001 (prohibiting
making any false, fictitious, or fraudulent statements or using false writings,
documents, or entries, concerning any matter within the jurisdiction of any agency
or department of the United States). The Supreme Court has ruled that 18 U.S.C.
§ 1001 applies to false statements, writings, or other representations made to a
disbursing officer of the U.S. House of Representatives in furtherance of a
fraudulent scheme.
35
In another case, the U.S. Court of Appeals for the District of
Columbia Circuit affirmed a Member‘s conviction of fraud for having used an official
allowance ―for purposes other than those intended by the appropriation and duly
certified by the congressman.‖
36
Other criminal provisions of the United States Code prohibit:
Making false or fictitious claims upon the United States;
37
Conspiring to defraud the government by obtaining or aiding in obtaining the
payment of false claims;
38
Knowingly stealing or ―convert[ing] to [one‘s] use or the use of another . . .
any money or thing of value of the United States.‖
39
The Frank
The term ―frank‖ refers to the autograph or facsimile signature of a person
authorized to transmit matter through the domestic mails without prepayment of
postage.
40
Members of Congress and certain officers of the House are authorized to
send, as franked mail, material relating to the official business, duties, and
activities of their offices.
41
Use of the franking privilege is governed by federal law
at 39 U.S.C. § 3210
et seq.
34
Members‘ Handbook
: Seeking Reimbursement: Vouchers.
35
United States v. Bramblett
, 348 U.S. 503 (1955).
36
United States v. Diggs
, 613 F.2d 988, 997 (D.C. Cir. 1979),
cert. denied
, 446 U.S. 982
(1980).
37
2 U.S.C. § 287.
38
2 U.S.C. § 286;
see also
18 U.S.C. § 371.
39
18 U.S.C. § 641.
40
39 U.S.C. § 3201.
41
39 U.S.C. § 3210(b)(1).
Official Allowances
333
Commission on Congressional Mailing Standards (The Franking Commission)
The bipartisan Commission on Congressional Mailing Standards, or the
―Franking Commission,‖ was established under Public Law 93-191 with a three-fold
mandate: (1) To issue regulations governing the proper use of the franking
privilege; (2) to provide guidance in connection with mailings; and (3) to act as a
quasi-judicial body for the disposition of formal complaints against Members of
Congress who have allegedly violated franking laws or regulations. The Franking
Commission is under the jurisdiction of the Committee on House Administration.
Regulations issued by the Commission, set forth in the
Franking Manual
(or ―
Red
Book
‖), should be consulted for authoritative guidance.
The Franking Commission
42
provides guidance and gives advisory opinions on
the frankability of mail matter.
43
The Franking Commission is authorized to hear
complaints of abuses of the frank, subject to judicial review.
44
The Commission‘s regulations are provided in the
Franking Manual
, which is
available from the Committee on House Administration. The
Franking Manual
should be consulted by congressional employees involved in mailing material under
the franking privilege. In addition to providing guidelines and requirements for
franked mail, the
Franking Manual
includes examples of permissible and
impermissible items or mailings.
―Dear Colleague‖ Letters
House-wide ―Dear Colleague‖ letters may be transmitted by inside mail
without frank or stamp. These ―Dear Colleague‖ letters must be prepared on official
letterhead, signed by the Member, and related to official business. They may
include as attachments material prepared by other individuals or organizations,
provided that each such item to be distributed is accompanied by a Member-signed
cover letter, on official letterhead, endorsing the material.
45
42
See
2 U.S.C. § 501(a).
43
2 U.S.C. § 501(d).
44
2 U.S.C. § 501(e).
45
Members‘ Handbook
: Inside Mail.
335
OFFICIAL AND OUTSIDE ORGANIZATIONS
Overview
Members and employees of the House of Representatives are frequently
presented with opportunities to interact with various groups and organizations. In
addition, Members are often asked to lend their names to outside undertakings or
otherwise to assist in advancing private endeavors.
This chapter discusses the standards Members and employees must observe
regarding the activities of organizations they establish to support their official
functions. The chapter also addresses restrictions on working cooperatively with
private, or ―outside,‖ entities. A primary consideration in any contemplated
arrangement with a private entity is the need to distinguish clearly between official
congressional actions and outside activities in which the Member engages.
House Rule 24 prohibits the use of outside funds or in-kind support to
supplement congressional allowances. And the reverse is also true: Members and
employees of the House are prohibited from using official resources for any private
purpose.
1
The decision whether to define an event as official (or not) generally lies
within the discretion of the Member. This decision controls who can pay and how
both Members and outside organizations can participate. If a Member determines
that an activity is official, no private funds or in-kind support except a limited use
of campaign funds, as described below, may be used to support the activity under
House Rule 24. Conversely, if an event is deemed to be other than an official
function, official resources may not be used. An activity may not be treated as both
official and unofficial.
2
Thus, joint endeavors, which would be supported with a
combination of private resources and official funds, are generally prohibited. This
restriction precludes joint activities even with charitable or educational
organizations, although not with governmental entities. These considerations do
not prevent the personal involvement of Members in various functions, including by
lending their names to support specific causes, provided no appearance of official
sponsorship is created.
1
See
31 U.S.C. § 1301(a).
2
See
House Comm. on Standards of Official Conduct,
Advisory Opinion No. 6
(Sept. 14, 1982),
reprinted in the appendices.
336 HOUSE ETHICS MANUAL
Official Support Organizations
Official support organizations generally take one of two forms, either as a
registered Congressional Member Organization (―CMO‖) or a Congressional Staff
Organization (―CSO‖).
Congressional Member Organizations
The term ―CMO‖ refers to a particular category of working group
3
of Members
organized to pursue common legislative objectives. Such entities must register with
the Committee on House Administration. In addition to the House rules applicable
to all Members, officers, and employees, CMOs are subject to specific Committee on
House Administration regulations.
4
Restrictions on CMOs flow from the principle that Members should not be
allowed to do collectively – through a working group – what the Rules of the House
prohibit Members from doing individually. Thus, like any other congressional
organization, a CMO must comply with House Rule 24, which prohibits unofficial
office accounts. As a general rule, no private resources (except the personal funds of
Members), whether monetary or in-kind, may be used for the operation of a CMO.
5
Conversely, any group that is supported by private resources may not receive
support from official allowances and may not provide legislative services to
Members. Thus, a CMO may not use official resources to support the operations of
a private organization. Like other congressional offices, however, a CMO may
distribute to Members reports, analyses, or research material prepared by private
parties, as long as the real source of the material is disclosed.
6
Because CMOs are considered extensions of the individual offices of
participating Members, a member of a CMO may use employees and official
resources under the control of the Member to assist the CMO in carrying out its
3
A CMO often may be referred to as a ―caucus,‖ ―task force,‖ ―delegation,‖ ―coalition,‖ or
similar term. For purposes of this chapter, the term ―CMO‖ refers to all Member organizations that
are supported by official resources.
4
See
Comm. on House Admin.,
Members‘ Congressional Handbook
(hereinafter ―
Members‘
Handbook
‖). The Committee on House Administration has also issued regulations concerning
expenditures from committee funds.
See
Comm. on House Admin.,
Committees‘ Congressional
Handbook
(hereinafter ―
Committees‘ Handbook
‖). Both handbooks are available on the Committee
on House Administration‘s website.
5
Members‘ Handbook
,
supra
note 4.
6
See id
.
Official and Outside Organizations
337
legislative objectives, but no employees may be appointed in the name of a CMO. A
CMO may not be assigned separate office space.
7
Congressional Staff Organizations
CSOs exist for the purpose of facilitating interaction among congressional
staff. A CSO may only make incidental use of official resources in connection with
its activities. Furthermore, the members of a CSO should contact the Committee on
Standards of Official Conduct before accepting anything of monetary value from a
private source. A CSO must register with the Committee on House Administration
in each Congress in order to use official resources.
Informal Member and Staff Organizations
Members and employees may also associate with caucuses and other informal
groups not registered as CMOs or CSOs. Informal Member caucuses are
distinguishable from CMOs in that the former are dependent on the support of
individual Members for their existence, while CMOs are recognized by the
Committee on House Administration and may be supported directly by
disbursements from official allowances (and by the House itself in the form of office
space and facilities). House Rule 24 applies to both registered and informal
organizations, however, because each plays a direct role in assisting individual
Members in the conduct of their official responsibilities. Thus, an informal caucus
organized by a group of Members to assist them in official matters may not invite
an individual not in Congress to be a member of the caucus, nor may any private
individual or organization contribute funds or other resources to support the caucus.
Staff may also associate with informal groups not registered with the
Committee on House Administration. While an informal staff group may receive
some
limited
private assistance notwithstanding House Rule 24, other
considerations limit the amount of such assistance that may be accepted. As
discussed in Chapter 2 concerning gifts, the House gift rule prohibits Members,
officers, and employees from accepting gifts except as permitted by the rule. The
receipt of anything of value by a group of employees primarily for their
own
benefit
(as opposed to the benefit of the group as a whole) would be a gift subject to the
rule, although its value would be apportioned among all the recipients.
Additionally, the Code of Ethics for Government Service prohibits federal officials,
including House Members and staff, from accepting ―benefits which might be
construed by reasonable persons as influencing the performance of official duties.‖
8
House staff involved with an informal group should exercise caution in accepting
7
See id
.
8
Code of Ethics for Government Service ¶ 5, H. Con. Res. 175, 85
th
Cong., 2d Sess., 72 Stat.,
Part 2, B12 (1958) (reprinted in the appendices).
338 HOUSE ETHICS MANUAL
anything of value from a private source, including by contacting the Committee as
necessary.
Private Entities With Shared Goals
The House organizations described above often share goals with outside
entities. Sometimes Members who have formed a CMO are affiliated with a private
foundation or institute with similar objectives. Members may cooperate with these
private entities, subject to all the generally applicable restrictions on involvement
with outside entities, as described in this chapter.
No outside entity may imply official House sponsorship. The letterheads of a
CMO and any outside organization with related goals should be sufficiently distinct
as to avoid any confusion of identities. No outside organization may use any official
funds or resources, including House office space, the frank, and staff time. Public
and private funds must be kept absolutely separate. While outside entities may
raise private funds, these funds may not be used to support any official functions.
Official and unofficial organizations may not co-sponsor events or jointly undertake
any activities. As to any event or activity that is sponsored by a CMO or outside
organization, the identity of the sponsoring entity should be made clear. No House
resources, including staff time, may be used to support any event or activity of the
outside organization, and the Members of the CMO may not accept any resources of
the outside organization (or any other private individual or entity) in furtherance of
the CMO‘s events or activities.
Example 1.
Several Members organize an informal caucus to assist
them in foreign trade matters. An academic who has written
extensively on foreign trade issues offers his assistance. While he may
address the group and provide them with a copy of a report he had
previously prepared, he may
not
be a regular member of the informal
caucus.
Example 2.
A group of private individuals has formed a coalition to
promote environmental legislation. Member A may join the coalition,
but she may not permit the coalition to suggest that it has any official
standing within the House, nor may she permit the coalition to use any
congressional resources, including staff time, in connection with the
coalition‘s work.
Example 3.
A trade association is interested in issues being considered
by a CMO. The association offers to ―sponsor‖ the CMO by providing
staff support and hosting weekly breakfast meetings on the CMO‘s
behalf. The Members may not accept the offer. However, the
association may host its own reception for the CMO, provided that the
Official and Outside Organizations
339
event is not characterized as a CMO function and the invitations for
the event are issued by the association, not the CMO.
Example 4.
An informal staff group is planning an open house to
encourage new employees to join. The reception may be held in House
facilities. A supermarket chain that does not retain or employ a
federal registered lobbyist offers to provide sodas for the event. The
offer may be accepted, provided that the acceptance would not give rise
to an appearance of improper influence.
Member Advisory Groups
Members may also form advisory groups to receive advice and counsel from
private individuals and organizations, subject to the following limitations. House
Rule 24 applies to both CMOs and Member advisory groups because each plays a
direct role in assisting individual Members in the conduct of their official
responsibilities. Nevertheless, the giving of advice by informal advisory groups to a
Member does not constitute the type of private contribution of funds, goods, or in-
kind services to the support of congressional operations that is prohibited by House
Rule 24, clauses 1 and 3.
9
While the rule prohibits private activities in support of
the operations of a House office that could be deemed an improper subsidy of official
allowances, the rule was not intended to interfere with a Member‘s ability to
communicate with and gain input from constituents, to consult with knowledgeable
persons, or generally to gather any information that the Member deems relevant to
the representational or legislative role. Thus, it is entirely appropriate for a
Member (or group of Members) to constitute a group to advise them on any topic.
Such groups do not register with the Committee on House Administration.
In forming an advisory group, however, a Member should exercise care to
ensure that the ―wall‖ between public and private activities and resources is not
breached. Like volunteers, members of advisory groups, and any individuals
associated with those members, should not be assigned work that supplants the
regular duties of paid congressional staff. It would be a violation of House Rule 24
for Members or staff to assign members of the advisory panel to draft legislation,
congressional statements, or other legislative materials. In addition, consistent
with the House gift rule (House Rule 25, clause 5), Members and staff should not
solicit the preparation of any such materials from the members of the advisory
panel. Members and staff, however, are free to accept from advisory panel members
any such materials that they prepare of their own volition, without any prompting.
9
See
House Select Comm. on Ethics,
Advisory Opinion No. 6
(May 9, 1977), reprinted in the
appendices
.
340 HOUSE ETHICS MANUAL
Also relevant are the regulations of the Committee on House Administration
applicable to CMOs. The main provision states that ―[n]either CMOs nor individual
Members may accept goods, funds, or services from private organizations or
individuals to support the CMO. Members may use personal funds to support the
CMO.‖
10
Because an advisory group is not itself an official House entity, and since the
individual members of the group are not House employees, neither the advisory
group itself nor any of its members individually are entitled to the use of the frank,
official letterhead, congressional office equipment (including computers, telephones,
and facsimile machines), office supplies (including official stationery and envelopes),
work stations in congressional office space, congressional staff time, the services of
the Congressional Research Service, or any other official resources. Members of the
advisory group may not use the congressional office address or telephone number as
a point of contact. Underlying the requirement for separation is 31 U.S.C.
§ 1301(a), which provides that official House resources may be used only for the
purposes appropriated. Other statutory provisions and regulations of the
Committee on House Administration further emphasize that official House
allowances may be used only for official House business.
In addition, a Member should not authorize the members of the advisory
group to represent themselves as having any official status or as acting on the
Member‘s behalf. They should not be issued congressional business cards or other
forms of official identification. Furthermore, members of the advisory group may
not contact federal agencies or any other entity on a Member‘s behalf, even if they
are seeking information that they believe will be helpful to the member. These
individuals may contact agencies or persons on their own behalf, however, to gather
such information.
Conferences and Town Hall Meetings
Members may participate in conferences and town hall meetings in a variety
of ways. They may plan official conferences or town hall meetings that are
arranged, promoted, and put on entirely or almost entirely using official
allowances.
11
Alternatively, they may hold town hall meetings as political events,
organized and funded by their campaigns. No official resources, including the frank
and official staff time, may be used in support of such political gatherings.
Generally, it is up to the Member arranging the event to determine whether a
particular meeting is official or political in nature.
12
With regard to Member-
10
Members‘ Handbook
,
supra
note 4.
11
The use of funds from a Member‘s principal campaign in support of an official event is
discussed in Chapter 4.
12
See
Advisory Opinion No. 6
,
supra
note 2.
Official and Outside Organizations
341
sponsored events, as a general rule no outside assistance may be accepted.
Underlying this guidance is House Rule 24, which as previously discussed prohibits
the acceptance of a private subsidy for official House business. This provision
applies to all official House business, including events sponsored – that is,
organized and conducted – by any House office. Further elaboration on House Rule
24 is provided below and in Chapter 9 on official allowances.
While Members may not ―co-sponsor‖ or hold joint events with private
entities, they may cooperate in private events by, for example, speaking, serving as
honorary chairs, and even signing letters of invitation on behalf of private groups,
provided the identity of the actual host is made clear. The rules concerning Member
involvement in events sponsored by outside organizations are discussed in the next
section.
Applicability of House Rule 24 to Events Sponsored by a House Office
With regard to events sponsored by a House office, the effect of House Rule
24 is generally to prohibit House Members and staff from accepting, in connection
with any such event, any financial support, goods, or in-kind services having
monetary value from any private individual or organization. Accordingly, an event
sponsored by a House office:
May not include a meal or any other refreshments that are paid for by a
private organization or individual;
May not be planned or organized, in whole or in part, by a private
organization or individual; and
May not take place on private property unless the sponsoring office pays fair
value for its use, or unless one of the limited exceptions described below
applies.
The rule applies to House office-sponsored events that take place in
Washington, D.C., as well as those that take place in a Member‘s congressional
district or elsewhere. The intent of the rule is that events sponsored by a House
office will be scheduled, organized, and conducted by House Members and staff,
using House funds and resources (with limited exceptions that are described in this
section). Of course, the funds and resources of Member offices and of committees
must be used consistent with the rules set forth in, respectively, the
Members‘
Handbook
and the
Committees‘ Handbook
issued by the Committee on House
Administration. When any question arises as to whether a proposed use of Member
or committee allowances would be permissible, the Committee on House
Administration should be contacted for guidance. There are several additional
points Members and staff should bear in mind regarding House Rule 24 as they
consider holding conferences, meetings, briefings, or other events, as follows.
342 HOUSE ETHICS MANUAL
In-Kind Support From Federal, State, or Local Governmental Entities. The
rule prohibits only the private subsidy of official House business. Accordingly, as a
general matter, Members and staff may accept any kind of in-kind support for
office-sponsored events that a federal, state, or local governmental entity offers to
provide.
13
This includes support from public colleges and universities.
For example, if a community college in a Member‘s district offers to provide
use of its auditorium for the Member‘s town hall meeting without charge, the offer
may be accepted. In addition, when a House office is sponsoring an event on a
particular subject – such as paying for college costs, retirement planning, or public
health issues – government agencies with responsibilities in that area may offer to
provide various kinds of assistance. Such assistance may also be accepted.
Appearance of Private Organizations and Individuals as Guests at an Official
Event. House offices sometimes plan to have a representative of a private
organization or other individual appear and make a presentation at an official
event. For example, at a town hall meeting on home buying, the sponsoring House
office may wish to have presentations from government officials whose agencies
provide assistance for home purchasing and representatives of private businesses in
that field. Such presentations at an event sponsored by a House office, as well as
the distribution of appropriate informational materials by such private
organizations, do not violate House Rule 24. Indeed, events such as a government
procurement fair sponsored by a Member‘s office inherently involve private
businesses setting up booths and providing information to participants.
However, when a private organization will be making a presentation at an
official event, it should be clearly understood that the organization is merely a guest
of the sponsoring office, and the office retains full control over the program for the
event. It should also be clearly understood that the purpose of that organization‘s
presence is limited to providing information on a congressionally-related subject.
Thus, private businesses that appear at an official event are not authorized to enter
into any commercial transactions or sign up clients while there, and membership
organizations are not authorized to sign up new members or solicit funds. Any
printed materials that a private organization distributes at an official event must
comply with these same limitations. In addition, any reference to such an
organization that is made in materials that the congressional office prints to
promote the event (such as a mailing or a leaflet) must comply with the rules of the
Committee on House Administration and the Franking Commission.
A private organization or individual may incur travel expenses in attending
an event sponsored by a House office. Consistent with the above guidance, there is
13
See Advisory Opinion No. 6
,
supra
note 9.
Official and Outside Organizations
343
no violation of House Rule 24 if the invited organizations or individuals pay their
own travel expenses to the event, or arrange – without any involvement of House
Members or staff – for others to pay their travel expenses. In addition, a Member
may use campaign funds to pay such travel expenses.
See
Chapter 4 on campaign
activity.
Benefits That a Private Organization Routinely Offers Without Charge. A
Member does not violate House Rule 24 by accepting from a private organization,
for an official event, a benefit that the organization routinely offers without charge
to similarly situated persons. For example, if a private organization that owns a
meeting room routinely makes that room available without charge to any nonprofit
or governmental entity that wants to use it, a House office does not violate the rule
in using that room without charge.
14
Before accepting a benefit under this
exception, a House office should carefully verify (if possible, in writing) that the
policy of the particular private organization is indeed routinely to offer that benefit
without charge.
As another example, Members sometimes wish to sponsor a ―health fair‖ or
similar event in their congressional district where they offer, for example, blood
pressure, cholesterol, or diabetes screening tests. In some communities, hospitals or
other organizations may routinely offer such tests without charge at a range of
community events. A Member may, consistent with the rule, allow such an
organization to provide such free tests at a health fair sponsored by the Member‘s
congressional office. However, this is the only circumstance in which a private
organization may provide a health test or screening at such an event. If an
organization does not have a clearly established policy of routinely offering free
tests at community events – including events sponsored by persons other than a
Member – then a Member may not accept the organization‘s offer to provide free
testing at the Member‘s event.
Charging a Registration Fee to Event Participants. A House office may,
consistent with House Rule 24, charge a registration fee to attendees at an event it
is sponsoring for the purpose of defraying the costs of food, beverages, and printed
materials that are provided to the attendees.
15
These are the only expenses that
may be covered by the registration fee. The Committee‘s guidance should be sought
before charging a registration fee to cover other types of expenses.
14
The policy underlying this principle is that ―the occasional use of privately owned meeting
space where no other appropriate public accommodations are reasonably available for meeting
constituents does not fall within the proscriptions of [House Rule 24].‖
Advisory Opinion No. 6
,
supra
note 9. This policy applies primarily when a Member wishes to have an event for constituents
who live in a remote and lightly populated area of the congressional district.
15
House Select Comm. on Ethics,
Final Report
, H. Rep. 95-1837, 95
th
Cong., 2d Sess., at 25
(1979).
344 HOUSE ETHICS MANUAL
When an office wishes to defray those costs in this manner, the registration
fee must be calculated to cover those costs without generating a surplus, and the
Member should establish a temporary, non-interest-bearing account to hold the fees
collected. If a surplus is generated inadvertently, the excess funds must be either
refunded on a prorata basis to the participants, or donated to charity. Instead of
establishing an account, a Member may direct the participants to send the fee
directly to the entity that will be providing the food and beverages, but the fees
should not be collected by any private third party.
If a Member holds such an event on a regular basis, the Member may
maintain a bank account with just enough funds from any surplus to cover bank
charges and fees. Doing so would avoid the multiple costs that would be incurred in
closing and re-opening accounts. However, maintenance of such an account at more
than a minimum level would be impermissible. Thus, any surplus from an event
beyond that necessary to keep the account open should be promptly refunded or
donated to charity.
With the availability of these alternatives for the sponsorship of events, it is
very important that Members decide early in the planning process what the nature
of the event will be, and that they and their staff follow the rules applicable to the
chosen alternative. The Standards Committee‘s staff is available to consult with
Members and staff from the start of their planning process for the purpose of
advising on permissible activities under the rules.
Involvement With Outside Activities and Entities
In working with outside entities, the distinction between activities that may
be considered official and those that may not is not always readily apparent. Some
guidance may be found in regulations issued by the Committee on House
Administration. A House rule
16
and various federal statutes
17
give that committee
responsibility for determining how official funds will be applied. Pursuant to this
authority, regulations and accounting procedures for allowances and expenses of
Members, committees, and employees of the House have been promulgated.
18
These
regulations identify a wide range of activities and specific expenses that may be
supported from official allowances, and thus are reimbursable, as well as expenses
that may not be reimbursed. The regulations specifically preclude reimbursement
for some expenses that might otherwise appear to support official and
representational duties (
e.g.
, certain travel outside of the district, holiday greeting
cards,
etc
.).
16
House Rule 10, cl. 1(j)(1).
17
See, e.g.,
2 U.S.C. §§ 57, 57a, and 72b.
18
See Members‘ Handbook
and
Committees‘ Handbook
,
supra
note 4.
Official and Outside Organizations
345
In addition, when debating the prohibition of House Rule 23, clause 6,
against the use of campaign funds for other than bona fide campaign purposes, the
Members recognized that adopting a precise definition of what constitutes an
―official‖ expenditure is difficult, if not impossible, to do.
19
The conclusion reached
in that debate was that the individual Member must determine if an activity, and
the concomitant expense, is more properly characterized as official or campaign-
related. In its
Final Report
to the 95
th
Congress, the Select Committee on Ethics
concurred in this position.
20
Events With Outside Entities
Members may not co-sponsor or hold joint events with outside entities, but
they may participate or cooperate in such events. This prohibition derives from
rules discussed above that generally prohibit Members from accepting private
financial or in-kind support for official activities, and require that official House
resources be expended for official business of the House, and not for the business of
any other entity, public or private.
A private entity may wish to involve a Member or group of Members in an
event that it is hosting. A Member could be publicly identified as ―cooperating‖ in
the undertaking, and could appear at the event. Members may cooperate by, for
example, speaking, serving as honorary chairs, or signing letters of invitation on
behalf of (and on the stationery of) private groups, provided that the identity of the
actual host is made clear. In such an instance, private resources would not be
expended to subsidize legislative services or the Members‘ performance of official
duties. Moreover, the Member may not use any congressional resources for the
event, including assigning employees to assist in organizing the event, using official
letterhead or other expressions or symbols of official sponsorship, or using the frank
or inside mail for sending invitations. The separate identity of the sponsor should
be made clear to all participants, and no Member should take personal credit for an
activity actually sponsored or hosted by another organization or individual.
Instead, invitations and other literature should make clear that the private source
is conducting the activity ―in cooperation with‖ or ―in conjunction with‖ the Member.
Example 5.
Advocacy group Z was active in lobbying for Pub. L. 007,
which was sponsored by Member C. After its enactment, Z plans to
host a conference for its members and other interested parties
explaining the impact of the new law. Because of C‘s prominent role in
the law‘s passage, Z invites C to be the keynote speaker at the
conference and wishes to list C‘s name on the invitations. Z may, with
19
123
Cong. Rec.
5900 (Mar. 2, 1977).
20
H. Rep. 95-1837,
supra
note 15, at 16.
346 HOUSE ETHICS MANUAL
C‘s permission, send out the following invitations (on Z‘s letterhead
and at Z‘s expense):
Advocacy Group Z
in cooperation with
Representative C
invites you to a conference
on Public Law 007
No official resources may be used for the conference.
While Members are not permitted to send an official ―Dear Colleague‖ letter
to invite guests to an event being sponsored by an outside entity, as a general
matter a Member may send a ―Dear Colleague‖ letter to follow up on an invitation
to an event that was previously sent to House offices by the sponsoring
organization, or to alert Members that they will be receiving such an invitation,
provided the event is taking place in a congressional room or office.
Congressional Art Competition
One instance when cooperation with private groups has been explicitly
recognized is the annual competition among high school students in each
congressional district to select a work of art to hang in the Capitol, referred to as
the Congressional Art Competition.
21
Members may announce their support for the
competition in official letters and news releases, staff may provide administrative
assistance, a local arts organization or
ad hoc
committee may select the winner, and
a corporation may underwrite costs such as prizes and flying the winner to
Washington, D.C. Private involvement with the Congressional Art Competition in
this manner is not viewed as a subsidy of normal operations of the congressional
office. Members may not solicit on behalf of the arts competition in their district
without Standards Committee permission unless the organization to which the
donation will be directed is qualified under § 170(c) of the Internal Revenue Code.
The guidelines concerning Member solicitations are discussed below.
Expressions or Symbols of Official Sponsorship
Members of Congress communicate with the public in various capacities.
However, communications of a private (or political) nature, whether sent by a
Member or by organizations outside the House, may not be prepared or mailed at
official expense. In addition, such communications should not carry expressions or
symbols that might improperly indicate official sponsorship or endorsement.
21
See
H. Res. 201, 102d Cong., 1
st
Sess. (1991).
Official and Outside Organizations
347
These restrictions are based on a provision of the Code of Official Conduct
(House Rule 23, clause 11), which provides:
A Member, Delegate, or Resident Commissioner may not authorize or
otherwise allow an individual, group, or organization not under the
direction or control of the House to use the words ―Congress of the
United States,‖ ―House of Representatives,‖ or ―Official Business,‖ or
any combination of words thereof, on any letterhead or envelope.
The rule is designed to prevent private organizations from using facsimiles of
congressional stationery to solicit support or contributions, thereby implying that
the message is endorsed by the Congress or is related to the official business of a
Member. In providing a general interpretation of the rule, this Committee found
that ―the use of congressional letterhead facsimiles by private organizations is a
deliberate misrepresentation which reflects discredit upon the House of
Representatives.‖
22
The rule encompasses reproduction of an official communication in another
publication, as well as direct use of official-appearing documents. Even if the
specific words mentioned in the rule are not used, authorizing a non-House
individual or group to use letterhead, expressions, or symbols conveying the
impression of an official communication from the Congress would violate the spirit
of House rules,
23
as well as other statutory provisions, as discussed below.
Clause 11 of House Rule 23 is not intended to restrict a Member‘s official
communications or the ability to lend one‘s name in support of a private group.
Thus, a Member‘s name and title may appear in the letterhead of an organization
with which the Member holds an actual or honorary position, provided the
letterhead does not indicate an official communication from the Congress.
Solicitation of Funds From or on Behalf of Outside Organizations
The Ethics Reform Act of 1989
24
enacted a government-wide restriction with
respect to the solicitation of funds or other items of value by Members, officers, and
employees. This provision, codified at 5 U.S.C. § 7353, bars Members, officers, and
employees from asking for or accepting anything of value from anyone who seeks
official action from the House, does business with the House, or has interests that
22
House Comm. on Standards of Official Conduct,
Advisory Opinion No. 5
, reprinted in the
appendices.
23
See
House Rule 23, cl. 2.
24
Pub. L. 101-194, 101
st
Cong., 1
st
Sess. § 303, 103 Stat. 1716, 1746-47 (Nov. 30, 1989), as
amended by Pub. L. 101-280, 101
st
Cong., 2d Sess., 104 Stat. 149 (May 4, 1990).
348 HOUSE ETHICS MANUAL
may be substantially affected by the performance of official duties. The only
exceptions are those expressly permitted by the Standards Committee, as discussed
below, as the supervising ethics office for the House. These statutory restrictions
cover the solicitation of ―anything of value,‖ regardless of whether the official
personally benefits from it.
As a general matter, the Committee permits (without the need to seek prior
Committee approval) Members and staff to solicit on behalf of organizations
qualified under § 170(c) of the Internal Revenue Code – including, for example,
§ 501(c)(3) charitable organizations – subject to certain restrictions. Solicitations on
behalf of non-qualified entities or individuals are decided on a case-by-case basis
through the submission to the Standards Committee of a written request for
permission to make such solicitations.
25
The general permission granted by the
Committee does not
extend to activities on behalf of an organization, regardless of tax
status, that was established or is controlled by Members (or staff). In such
circumstances the Member must seek and be granted written permission by the
Standards Committee before making any solicitations on the organization‘s behalf.
Such permission will only be granted for organizations that exist for the primary
purpose of conducting activities that are unrelated to the individual‘s official duties.
The Committee has determined that the only exceptions under the statute are for
solicitations on behalf of the campaign and other political entities.
26
All permissible
solicitations are subject to the following restrictions:
No official resources may be used. Such official resources include House staff
while working on official time, telephones, office equipment and supplies, and
official mailing lists.
No official endorsement by the House of Representatives may be implied.
Thus, no letterhead or envelope used in a solicitation may bear the words
―Congress of the United States,‖ ―House of Representatives,‖ or ―Official
Business,‖ nor may the letterhead or envelope bear the Seal of the United
States, the Congress, or the House.
27
It is permissible for Members to
identify themselves as a Member of Congress, Congressman,
Congresswoman, Representative, or by using their leadership title.
No direct personal benefits may result to the soliciting official.
25
For example, solicitations on behalf of persons who are in need of assistance because of a
catastrophic injury or natural disaster, most tax-exempt organizations that are not § 501(c)(3)
charitable organizations, and the Congressional Art Competition require prior, written approval of
the Standards Committee.
26
See
Chapter 4 on campaign activity for a discussion of the laws and rules applicable to
solicitations on behalf of a Member‘s own campaign.
27
See
House Rule 23, clause 11; 18 U.S.C. § 713.
Official and Outside Organizations
349
Regulations of the House Office Building Commission generally prohibit
soliciting and other nongovernmental activities in facilities of the House of
Representatives.
28
No suggestion may be made either that donors will be assisting the
individual in the performance of official duties or that they will receive
favorable consideration from the individual in official matters.
Under a provision of the House gift rule, registered lobbyists or agents of
foreign principals may not be targeted in any solicitation. Thus,
no
employee
of a lobbying firm should be targeted in a solicitation. However, it is
permissible to solicit a company, association, or other entity that employs
registered lobbyists to lobby only for itself or its members, provided that the
solicitation is directed to an officer or employee who is not a lobbyist.
29
Another provision of the gift rule sets out certain kinds of gifts that are
expressly prohibited by the rule, including ―[a]nything provided by a registered
lobbyist or an agent of a foreign principal to an entity that is maintained or
controlled by a Member . . . .‖
30
Example 6.
Member A is an honorary, unpaid board member of a
§ 501(c)(3) charitable organization. Member A may sign a fundraising
letter for the charity, as a Member of Congress, on the organization‘s
own letterhead, in a mailing paid for at private expense, provided that
registered lobbyists or foreign agents are not targeted in the mailing.
Support for Commercial Enterprises
Members and employees of the House are frequently approached by
individuals or organizations seeking assistance for business undertakings.
Obtaining information for constituents regarding government contracts and
services, as well as helping them deal with government regulations, is an important
28
House Office Building Comm‘n,
Rules and Regulations Governing the House Office
Buildings, House Garages and the Capitol Power Plant
¶ 4 (February 1999) (hereinafter ―
House
Building Comm‘n Regs.‖
) (available from the Speaker‘s Office).
29
The provision of the gift rule noted above, clause 5(e)(2) of House Rule 25, states that
among the kinds of gifts that are prohibited by the gift rule is –
A charitable contribution (as defined in section 170(c) of the Internal Revenue
Code of 1986) made by a registered lobbyist or an agent of a foreign principal on the
basis of a designation, recommendation, or other specification of a Member . . . or
employee of the House (not including a mass mailing or other solicitation directed to
a broad category of persons or entities), other than a charitable contribution
permitted by paragraph (f) [
i.e.
, a charitable contribution in lieu of honoraria].
30
House Rule 25, cl. 5(e)(1).
350 HOUSE ETHICS MANUAL
aspect of a Member‘s representational duties. In providing such services, care
should be exercised never to ―discriminate unfairly by the dispensing of special
favors.‖
31
Thus, Members and employees should undertake for one individual or
business no more than they would be willing to do for others similarly situated.
Members and staff should also avoid becoming too closely affiliated with a
particular enterprise, to prevent any appearance that they are accruing benefits ―by
virtue of influence improperly exerted from [their] position in Congress.‖
32
These
and other related issues are addressed in Chapter 8 on casework. Several main
points are discussed below.
The prohibition against use of House resources to support unofficial
undertakings clearly applies to support of business endeavors. Thus, an outside
entity should never be permitted to use congressional stationery to promote a
commercial or other unofficial endeavor. When responding to requests for support,
Members and staff should draft communications so that they do not lend
themselves to misinterpretation as an official endorsement from the Congress,
consistent with clause 11 of House Rule 23. Various House regulations restrict the
mailing of commercial materials under the frank and limit the display or
distribution of commercial materials in House office buildings.
33
When a House office wishes to have a representative of a private organization
or other individual appear and make a presentation at an event the House office is
sponsoring, it should be clearly understood that the organization is merely a guest
of the sponsoring office, and the office retains full control over the program for the
event. It should also be clearly understood that the purpose of that organization‘s
presence is limited to providing information on a congressionally related subject.
Thus, private businesses that appear at an official event are not to enter into any
commercial transactions or sign up clients while there, and membership
organizations are not to sign up new members or solicit funds.
Conversely, a Member may be asked to participate personally in an event
that is sponsored by an outside organization, such as privately-sponsored Medicare
prescription card events. In participating in such an event, Members and staff
must avoid becoming too closely affiliated with any commercial entity, in order to
avoid any appearance that they are accruing benefits by virtue of improper
influence exerted from their position in Congress, or are dispensing special favors.
34
Thus, in participating in a privately-sponsored event a Member must take care to
avoid any action that may be perceived as an endorsement of the private sponsor.
31
Code of Ethics for Government Service, ¶ 5,
supra
note 8.
32
House Rule 23, cl. 3.
33
See
¶ 4
House Building Comm‘n Regs
.,
supra
note 28.
34
See
Code of Ethics for Government Service, ¶ 5
supra
note 8.
Official and Outside Organizations
351
Unofficial Representational Activities
Several provisions of the federal criminal code and House rules restrict the
ability of Members and staff to become involved with outside organizations in ways
that require interaction with the federal government. An in-depth discussion of
these provisions is found in Chapter 5 on outside employment. The following is an
overview of several main considerations.
Members, officers, and employees are prohibited by 18 U.S.C. § 203 from
asking for or receiving compensation for ―representational services‖ rendered in
relation to a matter or proceeding in which the United States is a party or has a
direct and substantial interest. Included are proceedings before any government
department or agency. Additionally, House Rule 23, clause 3, prohibits Members
and their staffs from receiving compensation by virtue of influence improperly
exerted from a position in Congress.
Even absent compensation, employees are restricted by law and rule from
private representation of others before the United States government or the pursuit
of others‘ federal claims when not in the proper discharge of official duties. Section
205 of title 18 prohibits employees from acting as agent or attorney for another
person or organization in prosecuting a claim against the United States or in
connection with ―any covered matter.‖ A covered matter includes ―any judicial or
other proceeding, application, request for a ruling or other determination, contract,
claim, controversy, investigation, charge, accusation, arrest, or other particular
matter.‖
35
These provisions have generally been enforced in instances when an official‘s
public duties have conflicted with private interests. Enforcement of the criminal
code is the responsibility of the Department of Justice.
Another provision that would apply to an employee seeking to represent
others in federal matters is House Rule 25, clause 6. That rule states:
A person may not be an officer or employee of the House, or continue in
its employment, if he acts as an agent for the prosecution of any claim
against the Government or if he is interested in such claim, except as
an original claimant or in the proper discharge of official duties.
As with 18 U.S.C. § 205, there is no requirement in the rule that the
representation involve any compensation.
35
18 U.S.C. § 205(h).
352 HOUSE ETHICS MANUAL
General ethical standards and rules restrict the ability of both Members and
employees to engage in undertakings inconsistent with congressional
responsibilities. Even the appearance of a conflict may adversely affect public
perceptions and confidence. No special advantage should be provided to an outside
organization with which a Member is affiliated. Thus, the Committee has
consistently advised Members not to take an active role in lobbying Congress on
behalf of a private organization since that would conflict with a Member‘s general
obligation to the public.
Example 7.
Employee A has developed expertise in a subject.
Whether or not that knowledge was gained through her congressional
employment, she may not represent others in the area of her expertise
before a federal government agency, with or without compensation.
Example 8.
Employee B may not help a private, not-for-profit
organization in his spare time by lobbying Congress or executive
agencies.
Example 9.
Member C may sit on the board of an organization which,
among other things, lobbies Congress, but the Member should not
personally supervise the organization‘s lobbying activities since such
action on behalf of a single private group would appear inconsistent
with her responsibilities to the public at large.
Mailing Lists and Outside Organizations
A Member‘s publicized involvement in legislation or an issue of national
concern may generate significant correspondence from outside the district. The
names gathered comprise a mailing list that would be potentially valuable to
organizations outside the Congress. However, either permitting a private
organization to respond to letters received by a Member in an official capacity or
providing outside groups access to an official mailing list would violate House rules
and Committee on House Administration regulations.
36
A Member may purchase a mailing list from an outside organization or
unofficial entity (including his or her own campaign committee), at fair market
value, provided the list is available on the same terms to any other organization
that wants to purchase it (including the campaign of the Member‘s opponent).
37
For
the purchase to be reimbursable from official allowances, it must meet the criteria
ordinarily attendant to such expenses. In addition, the contents of any list must be
purged of any campaign or politically related data before it may be used officially.
36
See
House Rule 24;
Members‘ Handbook
,
supra
note 4.
37
See Members‘ Handbook
,
supra
note 4.
Official and Outside Organizations
353
These rules should not be interpreted technically so as to infringe upon a
Member‘s ability to communicate with constituents. Members may receive
membership lists, sets of labels, or names from organizations operating in their
districts if the information either forms the basis for an official mailing or is added
to the Member‘s database with the organization‘s permission. In either instance, a
Member may not accept a mailing list unless the source makes it generally
available on similar terms to others.
Example 10.
Member A may not share with an outside organization
the names of individuals who have written to him on a particular
issue.
Example 11.
Member B may use official funds to purchase from her
campaign committee a list of constituents, as long as any other person
could also purchase the list for the same price, and political identifiers
are deleted from the list. However, before entering into such a
transaction, B‘s congressional staff should consult with the Committee
on House Administration for guidance.
Example 12.
The local chamber of commerce maintains a mailing list
of businesses in Member C‘s district. The chamber may provide
Member C with a set of labels for use on an official mailing on the
same terms as it would give the list to others. The office may not use
the mailing to help the chamber update or correct its list.
HOUSE ETHICS MANUAL
355
APPENDICES
Code of Ethics for Government Service
72 Stat., Part 2, B12 (1958), H. Con. Res. 175, 85
th
Cong.
Resolved by the House of Representatives (the Senate concurring),
That it is
the sense of the Congress that the following Code of Ethics should be adhered to by all
Government employees, including officeholders:
CODE OF ETHICS FOR GOVERNMENT SERVICE
Any person in Government service should:
1. Put loyalty to the highest moral principals and to country above loyalty to
Government persons, party, or department.
2. Uphold the Constitution, laws, and legal regulations of the United States and
of all governments therein and never be a party to their evasion.
3. Give a full day‟s labor for a full day‟s pay; giving to the performance of his
duties his earnest effort and best thought.
4. Seek to find and employ more efficient and economical ways of getting tasks
accomplished.
5. Never discriminate unfairly by the dispensing of special favors or privileges to
anyone, whether for remuneration or not; and never accept for himself or his
family, favors or benefits under circumstances which might be construed by
reasonable persons as influencing the performance of his governmental duties.
6. Make no private promises of any kind binding upon the duties of office, since a
Government employee has no private word which can be binding on public
duty.
7. Engage in no business with the Government, either directly or indirectly
which is inconsistent with the conscientious performance of his governmental
duties.
8. Never use any information coming to him confidentially in the performance of
governmental duties as a means for making private profit.
9. Expose corruption wherever discovered.
10. Uphold these principles, ever conscious that public office is a public trust.
(Passed July 11, 1958.)
356 HOUSE ETHICS MANUAL
Committee on Standards of Official Conduct
Advisory Opinion No. 1
1
SUBJECT
On the Rule of a Member of the House of Representatives in Communicating
With Executive and Independent Federal Agencies.
REASON FOR ISSUANCE
A number of requests have come to the Committee for its advice in connection
with actions a Member of Congress may properly take in discharging his
representative function with respect to communications on constituent matters. This
advisory opinion is written to provide some guidelines in this area in the hope they
will be of assistance to Members.
BACKGROUND
The first Article in our Bill of Rights provides that “Congress shall make no law
. . . abridging the . . . right of the people . . . to petition the government for a redress of
grievances.” The exercise of this Right involves not only petition by groups of citizens
with common objectives, but increasingly by individuals with problems or complaints
involving their personal relationships with the Federal Government. As the
population has grown and as the Government has enlarged in scope and complexity,
an increasing number of citizens find it more difficult to obtain redress by direct
communication with administrative agencies. As a result, the individual turns
increasingly to his most proximate connection with his Government, his
representative in the Congress, as evidenced by the fact that congressional offices
devote more time to constituent requests than to any other single duty.
The reasons individuals sometimes fail to find satisfaction from their petitions
are varied. At the extremes, some grievances are simply imaginary rather than real,
and some with merit are denied for lack of thorough administrative consideration.
Sheer numbers impose requirements to standardize responses. Even if
mechanical systems function properly and timely, the stereotyped responses they
produce suggest indifference. At best, responses to grievances in form letter or by
other automated means leave must to be desired.
Another factor which may lead to petitioner dissatisfaction is the occasional
failure of legislative language, or the administrative interpretation of it, to cover
adequately all the merits the legislation intended. Specific cases arising under these
conditions test the legislation and provide a valuable oversight disclosure to the
1
Issued January 26, 1970. The Opinion should be read in conjunction with subsequent
legislation, regulations, and rules, such as 5 U.S.C. § 557(d), relating to prohibited
ex parte
communications to administrative agencies.
Appendices
357
Congress.
Further, because of the complexity of our vast federal structure, often a citizen
simply does not know the appropriate office to petition.
For these or similar reasons, it is logical and proper that the petitioner seek the
assistance of his Congressman for an early and equitable resolution of the problem.
REPRESENTATIONS
This Committee is of the opinion that a Member of the House of
Representatives, either on his own initiative or at the request of a petitioner, may
properly communicate with an Executive or Independent Agency on any matter to:
request information or a status report;
urge prompt consideration;
arrange for interviews or appointments;
express judgments;
call for reconsideration of an administrative response which he
believes is not supported by established law, Federal Regulation, or
legislative intent;
perform any other service of a similar nature in this area compatible
with the criteria hereinafter expressed in this Advisory Opinion.
PRINCIPLES TO BE OBSERVED
The overall public interest, naturally, is primary to any individual matter and
should be so considered. There are also other self-evident standards of official conduct
which Members should uphold with regard to these communications. The Committee
believes the following to be basic:
1. A Member‟s responsibility in this area is to all his constituents
equally and should be pursued with diligence irrespective of political
or other considerations.
2. Direct or implied suggestion of either favoritism or reprisal in
advance of, or subsequent to, action taken by the agency contacted is
unwarranted abuse of the representative role.
3. A Member should make every effort to assure that representations
made in his name by any staff employee conform to his instruction.
CLEAR LIMITATIONS
Attention is invited to United States Code, Title, 18, Sec. 203(a) which provides
in part:
Whoever, otherwise than as provided by law for the proper
discharge of official duties, directly or indirectly, demands, seeks,
receives, accepts, or agrees to receive or accept any compensation
358 HOUSE ETHICS MANUAL
for any representational services, as agent or attorney or
otherwise, rendered or to be rendered either receives or agrees to
receive, either personally or by another
(A) at a time when such person is a Member of Congress .
. . ; or
(B) at a time when such person is an officer or employee of the
United States in the . . . legislative . . . branch of the Government
. . . in relation to any proceeding, application, request for a ruling
or other determination, contract, claim, controversy, charge,
accusation, arrest, or other particular matter in which the United
States is a party or has a direct and substantial interest, before
any department, agency, court, court-martial, officer, or any civil,
military, or naval commission . . .
shall be subject to the penalties set forth in section 216 of this
title.
2
Section 216 provides for imprisonment for up to one year for engaging in the conduct,
and for imprisonment for up to five years knowingly engaging in the conduct, plus
fines.
The Committee emphasizes that it is not herein interpreting this statute but
notes that the law does refer to any compensation, directly or directly, for services by
himself or another. In this connection, the Committee suggests the need for caution to
prevent the accrual to a Member of any compensation of any such services which may
be performed by a law firm in which the Member retains a residual interest.
It should be noted that the above statute applies to officers and employees of
the House of Representatives as well as to Members.
2
As amended by the Ethics Reform Act of 1989, P.L. 101-194.
Appendices
359
Committee on Standards of Official Conduct
Advisory Opinion No. 2
1
SUBJECT
On the subject of a Members‟ Representational Allowance.
2
REASON FOR ISSUANCE
A number of requests have come to the Committee for advice on specific
situations which to some degree, involve consideration of whether monies
appropriated for Members‟ Representational Allowance are being properly utilized.
A summary of the responses to these requests forms the basis for this Advisory
Opinion which, it is hoped, will provide some guidelines and assistance to all
Members.
BACKGROUND
The Committee requested the Congressional Research Service to examine in
depth the full scope of the laws and the legislative history surrounding Members‟ clerk
hire. The search produced little in the way of specific parameters in either case law or
congressional intent, concluding that “ . . . no definitive definition was found . . . .” It
is out of this absence of other guidance the Committee feels constrained to express its
views.
The clerk hire allowance [now included in the Members‟ Representational
Allowance (MRA)]
3
for Representatives was initiated in 1893 (27 Stat. 757). The law
providing it spoke of providing clerical assistance to a Representative “in the
discharge of his official and representative duties . . . .” The same phraseology is used
today in each Legislative Appropriations bill and by the Clerk of the House in his
testimony before the Subcommittee on Legislative Appropriations. An exact definition
of “official and representative duties” was not found in the extensive materials
researched. Remarks concerning various bills, however, usually refer to “clerical
service” or terms of similar import, thus implying a consistent perception of the term
as payment for personal services.
1
Issued July 11, 1973.
2
This memorandum has been updated to reflect current terminology. During each session of
Congress, each Member gets a single allowance, known as the Members‟ Representational Allowance
(MRA) to conduct official and representational duties. The Clerk Hire Allowance, the Official
Expenses Allowance, and Official Mail Allowance have all been merged into the MRA.
3
Id.
360 HOUSE ETHICS MANUAL
SUMMARY OPINION
This Committee is of the opinion that the funds appropriated for [Members to
hire staff] should result only in payment for personal services of individuals, in
accordance with the law relating to the employment of relatives, employed on a
regular basis, in places as provided by law, for the purpose of performing the duties a
Member requires in carrying out his representational functions.
The Committee emphasizes that this opinion in no way seeks to encourage the
establishment of uniform job descriptions or imposition of any rigid work standards on
a Member‟s staff. It does suggest, however, that it is improper to levy, as a condition
of employment, any responsibility on any clerk to incur personal expenditures for the
primary benefit of the Member or of the Member‟s congressional office operations,
such as subscriptions to publications, or purchase of services, goods or products
intended for other than the employee‟s own personal use.
The opinion clearly would prohibit any Member from retaining any person from
his [MRA] under either an express or tacit agreement that the salary to be paid him in
lieu of any present or future indebtedness of the Member, any portion of which may be
allocable to goods, products, printing costs, campaign obligations, or any other non-
representational service.
In a related regard, the Committee feels a statement it made earlier, in
responding to a complaint, may be of interest. It states: “As to the allegation
regarding campaign activity by an individual on the House [payroll], it should be
noted that, due to the irregular time frames in which the Congress operates, it is
unrealistic to impose conventional work hours and rules on congressional employees.
At some times, these employees may work more than double the usual work week - at
others, some less. Thus employees are expected to fulfill the clerical work the Member
requires during the hours he requires and generally are fee at other periods. If,
during the periods employees are free and they voluntarily engage in campaign
activity, there is no bar to this. There will, of course, be differing views as to whether
the spirit of this principle is violated, but this Committee expects Members of the
House to abide by the general proposition.”
Appendices
361
Select Committee on Ethics
Advisory Opinion No. 6
1
SUBJECT
Acceptance of in-kind services for official purposes.
REASON FOR ISSUANCE
House Rule 24 provides that no funds may be paid into any unofficial office
account subsequent to March 2, 1977, and that such accounts must be abolished by
January 3, 1978. The definition of an unofficial office account included in the new
Rule focuses on the most common form,
i.e.
, a privately subsidized account used to
supplement official allowances.
The legislative history of Rule 24 refers to an unofficial office account as a fund,
repository, or process whereby funds are received or expended. The reasons for
adopting new Rule 24, as presented in the Financial Ethics report of the Commission
on Administrative Review (H. Doc. 95-73, February 14, 1977), emphasize that
eliminating private support of the public‟s business should be the primary objective of
a new Rule.
The Commission strongly believes that private funds should be
used only for politically-related purposes. Official allowances should
reflect the necessary cost of official expenses. . . . To suggest otherwise
would be to accept or condone the continuation of the present system [of
unofficial office accounts] which, at the very least, allows for the
appearance of impropriety, and at worst, creates a climate for potential
“influence pedaling” through private financing of official expenses of
Members of Congress.
Although it is clear that acceptance of monetary contributions to sustain such
accounts was perceived as conduct to be prohibited by the new Rule, questions have
been raised concerning the application of Rule 24 to acceptance of certain in-kind
services (
e.g.
, office supplies and equipment, district office space, etc.) and whether
such items will be treated differently than monetary contributions for purposes of the
Rule 24 prohibition.
The Select Committee finds that no distinction can be made between in-kind
and monetary contributions. Whether the private support alluded to in the
Commission‟s report is in the form of a monetary contribution or in the form of an in-
1
Issued on May, 9, 1977. This opinion has been updated,
inter alia
, to reflect the renumbering
of the House Rules in the 106
th
and 107
th
Congresses.
362 HOUSE ETHICS MANUAL
kind service is not relevant in view of the intended prohibition against the private
financing of official business. Moreover, it can hardly be argued that donation of in-
kind services is any less an infusion of private support for official business than is the
donation of money.
At least two precedents for treating in-kind services as monetary contributions
are found in regulations promulgated by the Federal Election Commission (FEC) and
the Internal Revenue Service (IRS). Those regulations require the inclusion of in-kind
donations as contributions to unofficial office accounts, thus confirming the Select
Committee‟s understanding that money and in-kind contributions should be treated
the same.
The FEC defines an “office account” (unofficial office account) as “an account
established for the purposes of supporting the activities of a Federal or State
officeholder which contains campaign funds and funds donated. . . .” (11 CFR
113.1(b)). A contribution includes a thing of value, including in-kind services. (11
CFR 100.51(a), 100.52 (d)(1)). Therefore, according to the FEC definitions, unofficial
office accounts may encompass in-kind services or resources.
Similarly, the IRS considers the donation of in-kind resources as a
“contribution,” applying the criterion of “anything of value.” The IRS treats the
contribution of in-kind services or resources used for official purposes as personal
income to the Member, just as it treats contributions to unofficial office accounts.
In sum, the Select Committee finds that for the purposes of applying Rule 24,
no logical distinction can be drawn between the private contribution of in-kind
services and the private contribution of money, and that both perpetuate the very kind
of unofficial office accounts and practices that are prohibited by House Rule 24.
Equally clear, however, is that various in-kind services and functions provided
by federal, state and local government agencies do not fall in the same category as
private donations of money or in-kind services. Thus, the provision of office space or
rooms for constituent meetings, etc., by a state or local government would not be
prohibited by application of this Rule. Of course, the occasional use of privately
owned meeting space where no other appropriate public accommodations are
reasonably available for meeting constituents does not fall within the proscriptions of
the new Rule.
Additionally, application of the Rule would not prohibit a Member from
continued participation with various educational intern, fellowship, or volunteer
programs. Members have long recognized that there is an inherent educational and
professional benefit in interns, fellows, and volunteers viewing first hand the
Legislative Branch of government, and that there are compelling public policy
considerations for encouraging such programs. There is nothing in the legislative
history that suggests an intent to discontinue these programs, nor has there surfaced
Appendices
363
any evidence of abuses resulting from the infusion of private money into public
business causing conflict of interest or other situations intended to be prohibited by
the New Rule. The Select Committee believes these programs are of primary benefit
to the persons involved and notes that interns, fellows, and volunteers are not on the
payroll of the House, nor are they considered to be employees of the House of
Representatives. Therefore, this interpretation of Rule 24 does not apply to intern
programs, provided the internships are primarily for educational purposes and do not
give undue advantage to special interest groups or others with a direct interest in
legislation.
However, it is clear that a Member would be violating the intent and the spirit
of House Rule 24 if he attempted to supplement his official allowance by raising,
receiving, or disbursing contributions to hire or support interns in his office.
Therefore, it follows that a Member and his staff are prohibited from personally
raising, receiving, or disbursing contributions used to support an educational intern,
fellowship, or volunteer program. This holding represents the only effective method
for restricting the potential to collect and maintain, directly or indirectly, unofficial
funds for supplementing staff assistance and the officially provided clerk-hire
allowance.
SUMMARY OPINION
For purposes of House Rule 24, the private contribution of in-kind services for
official purposes is prohibited. However, Rule 24 does not apply to services provided
by federal, state and local government agencies, or to the occasional use of privately-
owned meeting space where not public accommodations are reasonably available for
meeting with constituents. Nor does Rule 24 apply to interns or volunteers in a
Member‟s office, based on the understanding that such intern programs are primarily
of educational benefit to the intern and do not give undue advantage to special
interest groups. However, Members and their staffs may not personally raise, receive
or disburse any private contributions for intern programs associated with their offices.
364 HOUSE ETHICS MANUAL
Select Committee on Ethics
Advisory Opinion No. 13
1
SUBJECT: GENERAL INTERPRETATION OF HOUSE RULE 25, DEALING
WITH LIMITATIONS ON MEMBERS‟ OUTSIDE EARNED INCOME
1. General
(a) Purpose of the rule.
House Rule 25, was adopted on March 2, 1977 [as Rule
47] as part of the financial ethics code. Originally limited to Members, it was
amended by the Ethics Reform Act of 1989 to include officers and senior employees.
2
Besides restricting the type of employment in which covered individuals can engage,
the Rule limits the amount of “outside earned income” a Member, officer, or senior
employee may have.
3
Two major considerations prompted adoption of the Rule. First,
substantial payments to a Member, officer, or senior employee for rendering “personal
services” to outside groups presents a significant and avoidable potential for conflict of
interest. Second, it is inconsistent with the concept that being a Member, officer, or
senior employee of Congress is a full-time job to permit substantial earnings from
other employment.
(b) Annual Limitation generally.
Clause 1 of the Rule prohibits a Member,
officer, or senior employee from having outside earned income attributable to a
calendar year which exceeds 15 percent of the annual rate of basic pay for level II of
the Executive Schedule as of January 1 of such calendar year.
4
In order for an item to
be counted against this limitation for a particular year: (i) it must be “outside earned
income” within the meaning of Rule 25; and (ii) it must be attributable to that year.
The Rule defines outside earned income to mean “wages, salaries, fees, and other
amounts received or to be received as compensation for personal services actually
rendered.”
Outside earned income is attributed to the year in which the Member‟s, officer‟s
or employee‟s right to receive it becomes certain (
i.e.
, under the accrual method) rather
than to the year of receipt. Therefore, receipt of income earned during a particular
year cannot be deferred to a future year in which the Member, officer, or employee has
less outside earned income or until after the individual retires from Congress. The
1
This Opinion was originally issued in October 1978. It has been updated to reflect changes to
applicable rules and laws made by the Ethics Reform Act of 1989, P.L. 101-194, the Federal Employees
Pay Comparability Act, P.L. 101-509, and the Legislative Branch Appropriations Act, 1992, P.L.
102-90.
2
Senior employees are those compensated at or above 120 percent of the GS-15 base salary.
3
In addition to being a Rule of the House of Representatives, the outside earned income
limitations of Rule 25 have been enacted into law.
See
5 U.S.C. Appendix 4, §§ 501-505. As a result,
besides action by the Committee on Standards of Official Conduct and House of Representatives, the
limitations may be enforced through civil action by the Attorney General.
4
The Executive Level II salary is normally the same as that paid to a Member of Congress.
Appendices
365
limitation is not applicable to compensation for personal services rendered prior to the
effective date of Rule 25, or prior to the effective date of the individual‟s becoming a
Member, officer, or employee, if later. Outside earned income is determined without
regard to any community property law. That is, even though under applicable
community property law one-half of any personal service income earned by an
individual is deemed to belong to the spouse, all of such income is considered earned
income of the Member, officer, or employee for purposes of the Rule.
(c) Real facts controlling.
The limitations imposed by Rule 25 may not be
avoided by the characterization or disposition of any payment for services rendered.
In all cases, the real facts will control. For example, if a spouse, child, other relative of
a Member, officer, or employee, or trust for the benefit of any of them, is paid an
amount, however denominated, and the true consideration for the payment is services
rendered by the Member, officer, or employee, the amount will be deemed outside
earned income by the Member, officer, or employee. Similarly, the label or
characterization placed on a transaction, arrangement or payment by the parties may
be disregarded for purposes of the Rule. Thus, if amounts received or to be received by
a Member, officer, or employee are in fact attributable to any significant extent to
services rendered by the Member, officer, or employee, the characterization of such
amounts as partnership distributive share, dividends, rent, interest, payment for a
capital asset, or the like, will not serve to prevent the application of Rule 25 to such
amounts. Moreover, the Rule applies to outside earned income realized in a medium
other than money, for example, in property or services or through a bargain purchase
or forbearance in consideration of personal services rendered.
In short, income may not be recharacterized in order to circumvent the Rule.
Indeed, characterization of income is essentially irrelevant. For purposes of this
Opinion, there are two types of income – earned and unearned. If the compensation
received is essentially a return on equity, then it would generally not be considered to
be earned income. If the income is not a return on equity, then such income would
generally be considered to be earned income and subject to the limitation.
When such amounts received or to be received by a Member, officer, or
employee are designated as salary, fees, or commissions, the overriding presumption
is that such amounts, almost by definition, constitute compensation for personal
services rendered. An honorarium from a speaking engagement, for example, is
obviously outside earned income.
5
With respect to income from business ventures, the
Committee is convinced that in the overwhelming majority of cases, there will be little
or no difficulty in determining whether certain income is subject to the Rule. Again,
the facts of each individual case will govern applicability of the Rule, but the
principles set forth in this Opinion should be followed in making that determination.
5
The Ethics Reform Act of 1989 banned receipt of all honoraria by Members, officers, and
senior employees, effective January 1, 1991. However, employees paid below the senior staff pay level
would are allowed to receive honoraria for speeches, appearances, and articles unrelated to their
official duties or status in Congress. See chapter 5 of this volume for more discussion on this point.
366 HOUSE ETHICS MANUAL
2. Outside earned income from business ventures
This Advisory Opinion differentiates between businesses in which both capital
and personal services are material income-producing factors and those in which
personal service is the only material income-producing factor.
(a) Personal service businesses.
Where a Member, officer, or employee owns or
participates in a personal service business, such as a professional practice, in which
capital is not a material income-producing factor, his entire share of the profits is
deemed to be outside earned income for purposes of the Rule, except to the extent he
can demonstrate that his income in fact represents a return on investment. In
general, capital is not a material income-producing factor where gross income of the
business consists principally of fees, commissions or other compensation for personal
services performed by an individual. Thus, the practice of one‟s profession by a
doctor,
6
lawyer, insurance broker, or real estate agent will not, as such, be treated as a
business in which capital is a material income-producing factor. Even where the
practitioner may have a substantial investment in professional equipment or in the
physical plant constituting the office from which he conducts his practice, the capital
investment would be regarding as only incidental to the professional practice.
7
Moreover, the fact that the Member, officer, or employee may not personally
participate to any substantial extent in the rendering of services to the customers or
clients of the business, all such services being performed by assistants or associates,
would not serve to justify classification of his or her share of the business income as
other than earned income. If a Member, officer, or employee shares in the profits of a
personal service organization without being required to perform any significant
productive services, absent a strong showing to the contrary, it will be presumed that
the Member, officer, or employee is being compensated for attracting or retaining
clients, and such income is considered outside earned income.
Law practices.
Since there are a number of attorneys serving in the House of
Representatives, for purposes of example, application of the Rule to the practice of law
is specifically addressed in this Opinion. Those Members, officers, and senior
employees who previously maintained an active affiliation with a law firm generally
find it necessary to enter into a buy-out agreement with their partners in order to
liquidate their equity in the firm. This is perfectly appropriate. Amounts received or
receivable by a Member, officer, or employee in payment for an interest in a law firm
or similar organization upon retirement from it would not constitute outside earned
income so long as the amounts payable do not, in effect, represent a continuing
6
The House amended Rule 25 during the 108
th
Congress in 2003 to exempt the practice of
medicine from this provision. However, as discussed above, this restriction is also codified as part of
the Ethics in Government Act of 1978 (5 U.S.C. app. 4 § 502(a)), and no corresponding change has
been made to the statute. Thus, while the House rule has removed the fiduciary restriction to allow
the practice of medicine for compensation, the statutory ban remains in effect.
7
Note, however, that Members, officers, and senior employees covered by the earned income
limit are also totally precluded from receiving compensation for practicing a profession which involves
a fiduciary relationship.
See
House Rule 25, clause 2; 5 U.S.C. app. 4 § 502.
Appendices
367
participation in the law firm and the total amount payable is not in excess of the fair
maker value of the interest of the Member, officer, or employee. Normally such
arrangements call for fixed payments at annual or more frequent intervals over a
period of years. In some cases, however, the retiring partner and those continuing the
business are unable to agree on a value for one or more assets of the business, such as
contingent fee cases or accounts receivable of dubious value, and the buy-out
agreement may accordingly provide that the retiring partner will be paid a share of
such items, if, as and when they are collected.
Payments to a Member, officer, or employee under a buy-out agreement will not
be deemed to be outside earned income where the arrangements are entered into in
good faith and agreed to by all the partners, and reflect the usual and customary value
of the equity generally accorded to partners in similar law practices in the same
geographic area. A buy-out agreement should also be reasonably calculated to avoid
the Member‟s, officer‟s, or employee‟s participation in post-withdrawal profits. In
general, the proceeds resulting from a buy-out agreement are taxed as capital gains.
If such an agreement is not limited to liquidation of the Member‟s, officer‟s or
employee‟s equity in the firm, and includes payments which might be taxable as
earned income, any such payments under the agreement might be such to the earned
income limitation. The Committee notes that Rule25, clause 2, prohibits a Member,
officer, or employee from receiving compensation for affiliating with or being employed
by a firm, partnership, association, corporation, or other entity which provides
professional services involving a fiduciary relationship. Even if no compensation is
received, the Member, officer, or employee may not permit his or her name to be used
by any such firm, partnership, association, corporation, or other entity. This
limitation parallels the American Bar Association Code of Ethics, which states in part:
“A layer who assumes . . . a legislative post . . . shall not permit his name to remain in
the name of a law firm or to be used in the professional notice of the firm during any
significant period in which he is not actively and regularly practicing law as a member
of the firm.” (ABA Disciplinary Rule 2-102B).
(b) Business where capital is a material income-producing factor.
Capital is a
material income producing factor if a substantial portion of the gross income of the
business is attributable to the employment of capital, as reflected, for example, by a
substantial investment in inventories, plant, machinery or other productive
equipment. This Opinion discusses the application of the Rule in such cases to income
from a fully taxable corporation and income from an unincorporated business or
Subchapter S corporation.
(1) Taxable corporations
If a Member, officer, or employee renders services to a fully taxable business
corporation, he or she will not be deemed to realize outside earned income from such
services beyond the amount of salary or other form of extra compensation designated
as consideration for the personal service rendered. In those cases where the sole
financial interest of the Member, officer, or employee is stock in the corporation, an
increase in the net assets of the corporation would not be considered to be subject to
the limitation. An increase in the value of stock or other property is not ordinarily
368 HOUSE ETHICS MANUAL
treated as earned income either for tax purposes or under generally accepted
accounting principles; and any increase in the corporation‟s net profits would be
subject first to corporate income tax and then to personal income tax before the
Member, officer, or employee receives any resulting increment to his or her wealth
through a dividend or sale of stock. The foregoing has not application, of course, to
income which a Member, officer, or employee earns through personal efforts in
dealings with third parties but causes to be paid to a corporation and distributed. For
example, if a Member, officer, or employee incorporates for the purpose of conducting
a personal service, and all fees are paid to the corporation from which “profits” are
then drawn, all such amounts would be considered outside earned income.
In sum, if a Member, officer, or employee renders services to a taxable
corporation, only the salary or other compensation received for those services would be
subject to the limitation, but not any increase in the corporation‟s assets or a share of
the profits. This ruling is consistent with the intent of the Commission on
Administrative Review which recommended the limitation on outside earned income.
In its report (House Document No. 95-73), the Commission stated that “. . . Members
should be able to render personal services to manage or protect their equity . . .
without having to allocate these personal services toward the 15 percent limitation.”
(2) Subchapter S corporations, partnerships, unincorporated businesses
In those cases where the Member, officer, or employee has an ownership
interest in a business for which he or she also performs services, as in a subchapter S
corporation or a partnership, some part of the individual‟s share of the profits of that
business may reflect the value of services, and thus would be considered outside
earned income. The determining factor is whether the Member‟s, officer‟s, or
employee‟s personal services generate significant income for the business. Of course,
if the Member, officer, or employee receives formal income from the business, for
example, payments designated as salary or fees, such amounts would be considered
earned income. Additionally, in those cases where other partners or associates are
providing capital and managerial experience, and the principal role of the Member,
officer, or employee is to refer clients to the business or to help retain existing
customers or clients, the Member, officer, or employee would be deemed to be
rendering income-producing services, even though the actual time involved might be
minimal. However, if the Member, officer, or employee is engaged primarily in the
general oversight and management or protection of his or her investment, such
services would not be deemed to generate significant income. Such non-income
generating services would include consultation with other management officials,
analysis of financial and other reports, participation in formal meetings, and making
decisions concerning the general operations and investment strategy of the business.
The application of the Rule to the various types of business organizations as discussed
in this Opinion applies equally to a business owned or controlled by the Member,
officer, or employee or the individual‟s family. Again, the determining factor is
whether or not the personal services of the Member, officer, or employee actually
generate any significant income for the business. In those situations where the
services rendered by the Members, officers, or employees are incidental and do not
Appendices
369
generate significant income, no part of a share of the profits or any increase in the
assets of the business would be deemed to be outside earned income.
The Committee emphasizes that the definition of earned income in Rule25,
which excludes amounts received by a Member, officer, or employee from a family
controlled business “so long as the personal services actually rendered by the
individual . . . do not generate a significant amount of income,” was simply intended to
assure Members, officers, and employees that they could continue to make decisions
and take actions necessary to manage or protect their equity in a family trade or
business, and would not be forced to divest themselves of their family business
interests. As with any business, a Member, officer, or employee would not be required
to allocate a share of the profits of the business as outside earned income when the
facts and circumstances show that the income is in reality a return on investment.
For example, if the Member, officer, or employee owns a hardware store and the
services rendered are incidental, such as occasionally serving customers, the income
received from the business is basically a return on equity, (i.e., profits from the sale of
hardware goods) and is not generated by the services of the Member, officer, or
employee. Similarly, if the Member, officer, or employee gives overall direction to the
management of the business for a family owned farm, the income received from the
farming operations is not generated by the personal services of the Member, officer, or
employee, but rather is basically a return on equity from the sale of crops or dairy
products. These types of businesses are distinguishable from a personal service
business where income is essentially produced by the services of the individual
affiliated with the organization.
8
(3) When income is attributable
(a) Income from pre-effective date services.
The Rule excludes from earned
income any compensation derived by a Member, officer, or employee for personal
services rendered prior to the effective date of the Rule or prior to the effective date
becoming a Member, officer, or employee, if later. This provision would serve to
exclude from the limitation, for example, most renewal commissions paid to a
Member, officer, or employee with respect to life insurance policies sold prior to the
effective date, or similar commissions received by a Member, officer, or employee with
respect to pre-employment leases in which the individual was the leasing agent. In
most such arrangements, payment of the commission is not contingent upon the
performance of any future services by the recipient; the only contingency is that the
insured or lessee continue to pay premiums or rent, as the case may be. The exclusion
would also apply to a fee received by a Member, officer, or employee who was a lawyer
where all the work had been done prior to the effective date. However, this exclusion
would not apply to income derived from the continuing or future business of clients
brought into the firm prior to the effective date of the Rule.
8
Note, however, that no compensation could be received for serving as an officer or director of
the family owned business.
See
Rule 25, clause 2; 5 U.S.C. app. 4 § 502.
370 HOUSE ETHICS MANUAL
(b) Application of the limitation to part years.
Where an individual becomes a
Member, officer, or employee during any calendar year, the Rule applies only to
outside earned income of the individual attributable to periods after the effective date
of becoming a Member, officer, or employee. For the balance of the calendar year, the
applicable limitation will be 15% of the Executive Level II salary for that part of the
year, and only outside earned income attributable to that part is counted against the
limitation.
(4) Other provisions
(a) Payments attributed to deferred compensation plans.
Amounts received by a
Member, officer, or employee from a tax-qualified pension, profit sharing or stock
bonus plan are not treated as outside earned income, as provided in the Rule, nor are
contributions to such a plan counted as outside earned income. Amounts received by a
Member, officer, or employee from a non-qualified deferred compensation plan which
were earned in a year prior to the effective date of the Rule or the individual coming to
Congress are not outside earned income for the year received under the principle
explained in section 3(a), provided no part of the consideration for such payments is
current services. Amounts set aside for a Member, officer, or employee under a non-
qualified deferred compensation plan for services rendered after the Rule‟s effective
date or coming to Congress will generally constitute outside earned income of the
Member, officer, or employee for that year, even though they will not be received until
a later year, unless receipt is subject to a substantial risk of forfeiture.
(b) Assignment of income to charities.
Notwithstanding the general holding of
this Opinion that a Member, officer, or employee cannot deflect the application of the
Rule by assigning to another income which in fact was earned through rendering
services, earned income assigned by a Member, officer, or employee to a tax-exempt
charity will not be counted as part of the outside earned income of the Member, officer,
or employee, provided the individual is not a “disqualified person” with respect to the
recipient organization within the meaning of section 4946(a) of the Internal Revenue
Code. For the purposes of this portion of the Rule, such income would not be deemed
to have been “received” by the Member, officer, or employee provided that he did not
personally benefit in any way from such income.
9
9
The Internal Revenue Service has interpreted the definition of “gross income” in section 61 of the
Internal Revenue Code as follows:
Where . . . pursuant to an agreement or understanding, services are rendered to a person
for the benefit of an organization described in section 170(c) and an amount for such
services is paid to such organization by the person to whom the services are rendered, the
amount so paid constitutes income to the person performing the services. (
See
the last
sentence of Reg. § 1.61-2(c).)
If an amount paid to charity is treated as constructive income, a Member, officer, or employee could possibly
receive an indirect tax benefit. For example, such amounts may be counted as adjusted gross income for the
purposes of computer entitlement to make contributions to a tax-favored “Keogh” retirement plan. The
Member, officer, or employee would also be allowed to take an itemized deduction for a charitable
contribution under section 67 of the Internal Revenue Code. Any tax or other financial benefit on account of
payments directed to charity in consideration of personal services may result in the Member, officer, or
employee being viewed as receiving income for the purposes of Rule 25 and 5 U.S.C. § 502.
Appendices
371
(c) Honoraria.
Clause 1(a)(1)(B) of Rule 25 provides that a Member, officer, or
employee of the House may not receive any honorarium. Clause 3(c) defines
“honorarium” to exclude any actual and necessary travel expenses incurred by the
Member, officer, or employee in connection with the event. Payment of actual and
necessary travel expenses of a relative accompanying the Member, officer, or employee
are also excluded from the limitation.
A payment in lieu of an honorarium may be made directly by the sponsor of an
event to a qualified charitable organization on behalf of a Member, officer, or
employee. No such payment may exceed $2,000, nor may it be made to a charitable
organization from which the Member, officer, or employee or a parent, sibling, spouse,
child, or dependent relative of the Member, officer, or employee derives any financial
benefit.
10
Section 7701(k) of the Internal Revenue Code provides that an amount so
paid to a charitable organization is not deemed income to the Member, officer, or
employee for tax purposes, nor is any charitable deduction allowed.
10
See
Rule 25, clause 1(a)(3); 5 U.S.C. app. 4 § 501(c).
372 HOUSE ETHICS MANUAL
Committee on Standards of Official Conduct
Advisory Opinion No. 5
1
SUBJECT
General interpretation of House Rule 23, Clause 11.
BACKGROUND AND DISCUSSION
House Rule 23, clause 11 [originally adopted on January 15, 1979] provides as
follows:
A Member . . . may not authorize or otherwise allow
an individual, group, or organization not under the
direction and control of the House to use the words
“Congress of the United States,” “House of
Representatives,” or “official business,” or any combination
of words thereof, on any letterhead or envelope.
This addition to the Code of Official Conduct took effect upon adoption. The
primary purpose of clause 11 is to prohibit Members from authorizing private
organizations to use a facsimile of their congressional stationery to solicit
contributions or political support in a direct mail appeal. Such use of congressional
letterhead by non-House groups is clearly intended to convey the impression that the
solicitation is endorsed by the Congress or is related to the official business of the
Member who signs the letter. In adopting clause 11, the House has determined that
the use of congressional letterhead facsimiles by private organizations is a deliberate
misrepresentation which reflects discredit upon the House of Representatives.
Rule 23, clause 11, generally would prohibit a Member from authorizing a non-
House individual or group to use that Member‟s congressional stationery, or any
letterhead that purports to be an official communication from the Congress, in any
mailing paid for with non-appropriated funds. This prohibition would apply to any
letterhead designed in such a manner as to convey the impression that the letter is an
official communication. The Committee emphasizes that Rule 23, clause 2, directs
Members to “adhere to the spirit and the letter of the Rules of the House . . . .”
Therefore, since clause 11 is intended to prohibit solicitations by private interest
groups on facsimiles of congressional stationery, it would appear to be a violation of
the spirit of that rule if a Member authorized a non-House group to use letterhead
that did not contain the words prohibited by clause 11, but which was designed to
convey the impression that it is an official communication from the Congress. For
1
Issued on April 4, 1979. This opinion has been updated to reflect the renumbering of the
House Rules in the 106
th
and 107
th
Congresses.
Appendices
373
example, letterhead which purports to be an official communication by containing a
Member‟s committee assignments, office address, and the “congressional seal” would
be contrary to the spirit of clause 11. The Committee notes in this regard that title 18
of the United States Code, section 713, specifically prohibits use of the United States
seal for the purpose of conveying a false impression of sponsorship by the United
States Government.
The clause 11 prohibition is not intended in any way to restrict a Member‟s
communication with the public or his right to lend his name to any organization or
interest group. The rule imposes no restriction on a Member‟s freedom to sign a fund-
raising appeal or other solicitation of political support on a non-House group‟s own
letterhead, and be identified as a Member of Congress. Similarly, a Member‟s name
and title may appear in the letterhead of a non-House organization (
e.g.
, if the
Member serves in an official capacity or honorary position with that organization),
provided that the letterhead does not purport to be an official communication from the
Congress.
The terms “non-House individual, group, or organization” as used in the rule
would not extend to a Member‟s principal campaign committee. The Committee
understands that the clause 11 prohibition on lending congressional letterhead to
private groups was not intended to prohibit a Member from using a facsimile of official
stationery in fund-raising activities for his own campaign.
2
This interpretation is
based on the debate in the Democratic Caucus which recommended adoption of
clause 11 on December 6, 1978, and on the legislative history of a similar amendment
that was offered to the Ethics in Government Act during the 95
th
Congress (
see
CONGRESSIONAL RECORD, September 20, 1978, page H10212). It should also be
noted that the Senate Select Committee on Ethics issued an advisory opinion
imposing comparable prohibitions on use of official stationery by non-Senate groups,
and did not apply those prohibitions to a Senator‟s campaign committee.
The Committee emphasizes again in this regard that the clear intent of
clause 11 is to prohibit special interest groups and other private organizations from
using congressional letterhead for political solicitations. Such use of congressional
stationery facsimiles conveys the false impression that the private group is sponsored
or endorsed by the House of Representatives. This is not the case when a Member,
strictly on his behalf rather than for a third party, uses a facsimile of his personalized
stationery for campaign fund raising appeals or other political mailings. With respect
to campaign solicitations, the Committee notes that such letters must include a notice
regarding the availability of campaign reports filed with the Federal Election
2
Other restrictions, however, including the Deceptive Mailings Prevention Act of 1990, P.L.
101-524, pose difficulties with regard to use of a facsimile of congressional letterhead in a campaign.
See
39 U.S.C. §§ 3001, 3005.
374 HOUSE ETHICS MANUAL
Commission, as required by title 2 of the United States Code, section 435.
3
Moreover,
with respect to other political mailings, the Committee does not believe that it is
improper for a Member to use his congressional letterhead to send, for example, thank
you notes to contributors or other politically-related letters which may not be mailed
under the frank. The Committee is confident that use of a Member‟s personalized
congressional letterhead for political mailings on his own behalf would not be
misinterpreted as an official communication from the House of Representatives or an
endorsement by the Congress. In sum, the abuse of congressional stationery that
clause 11 is designed to correct is not present in the case of a Member‟s campaign
committee, nor was the rule intended to prohibit a Member‟s use of his congressional
letterhead for political mailings.
The prohibitions of clause 11 also would not apply to the Democratic and
Republican Congressional Campaign Committees, nor would it apply to the various
informal Member organizations or caucuses composed solely of Members of Congress.
The ad hoc Member groups, which are quasi-official in nature, and the party
campaign committees would not be considered “non-House” organizations for purpose
of Rule 23, clause 11.
3
This provision was repealed by the Federal Election Campaign Act Amendments of 1979,
Pub. L. No. 96-187, title I, § 105(1), 93 Stat. 1354 (Jan. 8, 1980). Section 441d(a) of Title 2 of the
United States Code now requires that campaign fund solicitations and other candidate political
communications clearly state that it has been paid for by the candidate's campaign committee.
Appendices
375
Committee on Standards of Official Conduct
Advisory Opinion No. 6
1
SUBJECT
General Interpretation of House Rule 23, Clause 6, and House Rule 24.
REASON FOR ISSUANCE
The Committee has received an inquiry concerning the application of House
Rule 23, clause 6, and Rule 24, to the use by a Member of campaign funds to advertise
or promote a town meeting in his district and in areas newly added to the district by
reapportionment after notice of the meeting has been mailed under the frank.
BACKGROUND
House Rule 23, clause 6, prohibits a Member from expending funds from his
campaign account that are not attributable to “bona fide campaign or political
purposes.” Rule 24, clause 1, bars a Member from maintaining, or having maintained
for his use, “an unofficial office account.” These provisions were included in the
amendments to the House Rules made by H. Res. 287, 95
th
Congress, adopted
pursuant to the recommendations of the Commission on Administrative Review. The
Commission, in explaining the purpose of these rules, observed (
Financial Ethics
, H.R.
Doc. No. 95-73, 95
th
Congress, 1st Session 23 (1977)):
The Commission strongly believes that a wall should be built
between political expenses and public money, that private money should
not be relied upon to pay for the conduct of the House‟s official business.
It regards such a wall as critically important to the integrity of the
representative process . . . .
Although federal statutory law (2 U.S.C. § 439a) generally would allow a
Member to use excess campaign funds to defray ordinary and necessary expenses
incurred in connection with holding office, the amendment to House Rule 23, clause 6,
made by H. Res. 287, 95
th
Congress, specifically prohibits this practice. As the Select
Committee on Ethics observed in its
Final Report
(H.R. Report No. 95-1837, 95
th
Congress, 2
nd
Session (1979)): “The intent of this rule is to restrict the use of
1
Issued on September 14, 1982. This opinion has been updated to reflect changes to applicable
rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 101
st
Cong., 1
st
Sess., 103 Stat. 1716
(Nov. 30, 1989), as amended by Pub. L. No. 101-280, 101
st
Cong., 2d Sess., 104 Stat. 149 (May 4, 1990).
It also reflects the re-numbering of the House Rules in the 106
th
and 107
th
Congresses. The opinion
should also be read in light of the amendment to House Rule 24 in the 109
th
Congress to permit the
limited use of funds from a Member‟s principal campaign committee to pay for certain official expenses.
See
Chapter 4 concerning Campaign Activity for further guidance.
376 HOUSE ETHICS MANUAL
campaign funds to politically related activities and to thus prohibit their conversion to
personal use or to supplement official allowances.” Rule 24 has a similar purpose. It
was intended to eliminate the “potential for „influence peddling‟ through private
financing of the official expenses of Members of Congress.”
See
Financial Ethics
,
supra
, at 18.
In adopting these rules, the House was aware that “there are gray area
expenditures which could be classified (as) either political or official . . . .”
See
Final
Report of the Select C23ommittee on Ethics
,
supra
. The rules do not include any
definition of “political” or “official” expenses. As Representative Frenzel observed
during the debate on H. Res. 287, 95
th
Congress (123 Cong. Rec. 5900 (March 2, 1977):
What is political is a matter of fact rather than of definition . . .
(W)hat we have tried to do is to confine expenses from political accounts
or volunteer committee accounts to expenses that are political.
By and
large, that definition will be left up to the Member and to his volunteer
committee,
and as it is broadly defined under the election law.
(Emphasis added.)
The Select Committee on Ethics, in its
Final Report
,
supra
, also expressed the view
that Members should make the determination as to whether gray area expenditures
are to be classified as political or official.
SUMMARY OPINION
This Committee agrees that the determination as to whether a particular
expense is for political or official purposes should be made by the individual Member.
A gathering of a Member‟s constituents at a “town meeting” could be either a political
(campaign) event, or an official (representative) one. In such a case, the Member is
free to use his judgment in defining it as political or official. However, this Committee
is of the view that once the Member makes his determination, he is bound by it. A
single event cannot, for purposes of the House rules, be treated as
both
political and
official.
When a Member sends announcements of a town meeting under the frank, he
has thereby made the decision that the event is an official one. Under Federal law,
the franking privilege may only be used in the conduct of official business. 39 U.S.C.
§ 3210(a)(1). Having thus defined the event as an official one, he may not then use
campaign funds (Rule 23, clause 6) or any other private funds (Rule 24) to conduct,
promote, or advertise the event. (It is noted that Rule 24 was intended to prohibit the
expenditure of private monies for official purposes even if no particular account or
repository as such is maintained. See the colloquy between Representatives Panetta
and Obey during the debate on H. Res. 287, 95
th
Congress, 124 Congressional Record
5941 (March 2, 1977).
Appendices
377
Because the town meetings that are the subject of this opinion were promoted
in the first instance by means of the frank, they thereby become official and
representational functions and it is an improper mixture of public and campaign
funding to promote such official town meetings as political events. In a case such as
this, the wall between public and private funding is easily placed.
FURTHER CONSIDERATIONS
Having stated the general rule that certain events or activities may be deemed
“official” or “political” but not both, and that the Member must exercise his judgment
in making such determinations, there are long established practices not offensive to
the principle of separation that are not affected by this Advisory Opinion.
One such practice is a campaign committee making use of materials originally
generated and used solely in the course of the Member‟s official and representational
duties once the official use of the material is exhausted. For example, a Member may,
at official expense and by means of the franking privilege, reproduce and distribute
otherwise frankable reprints from the Congressional Record, radio and television
programs, correspondence from public officials, etc. The Committee believes that Rule
24, which prohibits outside contributions for official purposes, does not ban a Member
from later distributing such items at campaign committee expense provided
all
the
expenses associated with reproducing and distributing the material are paid from
campaign funds and the material itself or the context in which it is presented clearly
establishes its campaign or political purposes and thus its non-official use, so that
there would be no appearance that private funds are supplementing official
allowances.
Another such practice occurs if an individual or organization
without the
Member‟s consent
, expends funds or donates services to advertise or promote some
official or representational activity of the Member. For example, no violation would
occur if a radio to television station in a Member‟s district promoted a Member‟s
previously announced town meeting in public service announcements.
378 HOUSE ETHICS MANUAL
Policy Regarding Amendments to
Financial Disclosure Statements
MEMORANDUM OF APRIL 23, 1986
TO: All Members, Officers, and Employees of the U.S. House of
Representatives
FROM: Committee on Standards of Official Conduct
Julian C. Dixon, Chairman
John T. Myers, Ranking Minority Member
The purpose of this letter is to inform all Members, officers, and employees
who are required to file Financial Disclosure (FD) Statements pursuant to the
Ethics in Government Act (EIGA) of 1978, 5 U.S.C. app. 4, § 101
et seq.
,
1
whose
filings are under the jurisdiction of this Committee, of a revision to the Committee‟s
policy regarding the submission of amendments to earlier filed disclosure
statements. The new policy, discussed below, will be implemented immediately and
all future statements as well as the amendments thereto will be handled in
accordance therewith.
To date, it has been the general policy of this Committee to accept amended
FD Statements from all filers and consider such amendments to have been timely
filed without regard to the duration of time between the date of the original filing
and the amendment submitted thereto. Over time, this practice has resulted in the
Committee having received a significant number of amendments to disclosure
statements under circumstances not necessarily reflecting adequate justification or
explanation that the amendment was necessary to clarify previously disclosed
information or that a disclosure was omitted due either to unavailability of
information or inadvertence. Moreover, and particularly in the case of an individual
whose conduct (having EIGA implications) is under review, the Committee has been
faced with the somewhat inconsistent tasks of identifying the deficiencies in earlier
FD Statements while simultaneously accepting amendments to such statements
that may well have been intended to have a mitigating or even exculpating effect.
Quite clearly, both time and experience have established the need to make some
adjustments to the financial disclosure process in order to alleviate such perceived
problems and create a more logical and predictable environment for filers to meet
their statutory obligation under EIGA and the parallel responsibility of this
Committee to implement that law. It is in this context that a new policy for
accepting and considering amended disclosure statements is being implemented.
1
Title I of EIGA was recodified following enactment of the Ethics Reform Act of 1989, P.L.
101-194, 103 Stat. 1716. Legislative branch disclosure requirements were previously found at 2
U.S.C. § 701
et seq.
The 1989 statute combined separate provisions applicable to all three branches
into the one title now found at Appendix 4 of title 5, United States Code.
Appendices
379
To begin, effective immediately, an amendment to an earlier FD Statement
will be considered timely filed if it is submitted by no later that the close of the year
in which the original filing so affected was proffered. There will be, however, a
further caveat to this “close-of-year” approach. Specifically, an amendment will not
be considered to be timely if the submission thereof is clearly intended to “paper
over” an earlier mis/non filing or there is no showing that such amendment was
occasioned by either the prior unavailability of information or the inadvertent
omission thereof. Thus, for example, so long as a filer wishes to amend within the
appropriate period of prescribed “timeliness” and such amendments are not
submitted as a result of, or in connection with, action by this Committee that may
have the effect of discrediting the quality of the initial filing(s), then such
amendments will be deemed to be presumptively good faith revisions to the filings.
In essence, the amendment, per se, should be submitted only as a result of the need
to clarify an earlier filing or to disclose information not known (or inadvertently
omitted) at the time the original FD was submitted. In sum, the Committee will
adopt a two-pronged test for determining whether an amendment is considered to
be filed with a presumption of good faith: First, whether it is submitted within the
appropriate amendment period (close-of-year); and second, a “circumstance” text
addressing why the amendment is justified. In this latter regard, filers will be
expected to submit with the amendment a brief statement on why the earlier FD is
being revised. Thus, amendments meeting the two-pronged test will be accorded a
rebuttable presumption of good faith and this Committee will have the burden to
overcome such a presumption. Conversely, any amendment not satisfying both of
the above-stated criteria will not be accorded the rebuttable presumption of good
faith. In such a case, the burden will be on the filer to establish such a
presumption.
The Committee is well aware that disclosure statements filed in years past
may be in need of revision. To this end, the Committee has determined that a grace
period ending at the close of calendar year 1986 will be granted during which time
all filers may amend any previously submitted FD Statements. Again, while an
amendment may be timely from the standpoint of when it is submitted –
i.e.
, within
the current year – information regarding the need for and, hence, appropriateness
of the amendment will also be considered
vis-à-vis
the rebuttable presumption of
good faith.
In sum, the effect of the new policy is to establish a practice of receiving and
anticipating that FD Statements and amendment thereto will be submitted within
the same calendar year and that departures based on either timeliness or
circumstances can be readily identified for scrutiny and possible Committee action.
As noted, implementation of the new policy will affect not only statements filed this
year but also all statements filed in prior years in light of the grace period being
adopted.
380 HOUSE ETHICS MANUAL
Should you have a question regarding this matter, please feel free to contact
the Committee staff at 225-7103.
Appendices
381
Gift Rule Provisions Applicable to Loans to
Members, Officers, and Employees
1
May 23, 1997
MEMORANDUM FOR ALL MEMBERS, OFFICERS, AND EMPLOYEES
FROM: Committee on Standards of Official Conduct
James V. Hansen, Chairman
Howard L. Berman, Ranking Democratic Member
Questions have arisen as to whether – under the gift rule that took effect on
January 1, 1996 [currently clause 5 of House Rule 25] – Members and staff may
accept loans from persons other than financial institutions, and if so, on what
terms. The purpose of this memorandum is to advise that the Committee interprets
the gift rule to allow the acceptance of a loan from a person other than a financial
institution, provided that the loan is made in a commercially reasonable manner,
including requirements that the loan be repaid, and that a reasonable rate of
interest be paid.
Background. The reason that loans are a concern under the gift rule is quite
obvious: depending on the terms, a transaction labeled as a
loan
may in fact
constitute an impermissible
gift
to a Member, officer or employee, in whole or in
part.
2
However, at least from the late 1970‟s through 1995, the standard in effect in
the House regarding loans to Members and staff was quite clear: a loan was
not
deemed a gift to the official provided that it was made in a commercially reasonable
manner, including requirements for repayment and a reasonable interest rate. This
standard, which included no restriction on the source of loans, was stated in an
advisory opinion of the House Select Committee on Ethics issued on May 9, 1977,
and it is stated as well in the most recent edition of the
House Ethics Manual
(102d
Cong., 2d Sess. (April 1992)), on p. 32.
However, the gift rule that took effect on January 1, 1996 has created some
uncertainty on this matter, because it does not explicitly incorporate the standard
on loans set forth above. Instead, the rule defines the term “gift” to include any
1
This memorandum has been updated in several respects, including to reflect the
renumbering of the House Rules that occurred at the beginning of the 106
th
Congress and in the
107
th
Congress.
2
One or more loans or claimed loans were at issue in several Committee proceedings,
including
In the Matter of Representative James C. Wright, Jr.
(Committee Statement of April 13,
1989, pp. 82-83), and
In the Matter of Representative Charles H. Wilson of California
(H.R. Rep. No.
930, 96
th
Cong., 2d Sess., p. 4 (1980)).
382 HOUSE ETHICS MANUAL
loan (clause 5(a)(2)(A)), and it provides that Members, officers and employees may
accept
[o]pportunities and benefits that are . . . in the form of loans from banks and
other financial institutions on terms generally available to the public [clause
5(a)(3)(R)(v)].
The rule also includes a provision which allows the acceptance of “[a]nything
for which the Member, . . . officer, or employee of the House pays the market value
. . . .” (clause 5(a)(3)(A)). The rule further provides (in clause 5(f)) that this
Committee has sole authority to interpret the rule.
The Committee‟s Ruling, and the Reasons for It. As stated above, the
Committee is now announcing that it interprets the current gift rule – and
specifically the rule‟s “market value” provision quoted above – to allow the
acceptance of loans from persons other than financial institutions, provided that
they are on terms which satisfy the requirements which the Committee had
previously utilized in evaluating loans: that is, the terms are commercially
reasonable, including requirements for repayment and a reasonable rate of interest.
Put another way, while the current gift rule clearly allows the acceptance of loans
from financial institutions (on terms generally available to the public), the rule does
not
prohibit Members and staff from accepting loans from anyone other than a
financial institution. The reasons that the Committee has decided to interpret the
rule in this manner are as follows.
The plain meaning of the gift rule provision on loans – clause 5(a)(3)(R)(v),
quoted above – is
not
that a loan is acceptable
only if
it is from a financial
institution, but rather that a loan from such an institution
is
acceptable if on terms
generally available to the public. The provision does
not
define the universe of
acceptable loans.
Indeed, there are a number of
other
gift rule provisions under which
Members and staff may conceivably accept a loan or other extension of credit,
including the provisions allowing acceptance of things of value from relatives and
personal friends (clause 5(a)(3)(C), (D)), and the provisions allowing acceptance of
benefits offered to the public, or to a group or class in which membership is
unrelated to congressional employment, or to members of an organization such as a
credit union (clause 5(a)(3)(R)(i)-(iii)). Because the rule does not limit Members and
staff to accepting loans from financial institutions, they may likewise accept a loan
where they satisfy the requirement of clause 5(a)(3)(A) of the gift rule: that is, they
pay “market value” for the funds borrowed.
The Committee also reviewed the legislative history of the current gift rule,
and consistent with the above review of the rule‟s terms, the Committee found
Appendices
383
nothing indicating an intent to restrict the source of loans to financial institutions.
Furthermore, as noted above, as of the time the current gift rule was approved, the
standard allowing acceptance of loans from persons other than financial
institutions, on proper terms, had been a longstanding one in the House
3
. Thus to
prohibit Members and staff from accepting loans from anyone other than a financial
institution would be a major change in the governing standard, and the Committee
is reluctant to effect such a significant change absent an indication that the change
was intended.
In this regard, the Committee also notes that the provision of the current gift
rule on loans from financial institutions – like a number of other provisions of the
current rule – was drawn almost verbatim from the Executive Branch gift
regulations. Thus it appears that this provision was included in the gift rule as a
drafting convenience, and was not the result of a conscious effort to change the prior
House practice regarding loans. It is also noteworthy that for the Committee to
interpret the gift rule differently, so as to limit the source of loans to financial
institutions, could have absurd results, such as that Members and staff could not
accept loans from relatives (although, pursuant to the rule, they clearly may accept
gifts from relatives), or could not utilize a credit card issued by a department store
or gas station.
Finally, in the Committee‟s view, where a loan to a Member, officer, or
employee is made on commercially reasonable terms, and those terms are adhered
to, he or she pays “market value” for the funds borrowed, and hence the loan is
permissible under clause 5(a)(3)(A) of the gift rule. As the Office of Government
Ethics observed recently with regard to the Executive Branch gift standards, “While
the term „gift‟ is broadly defined in the Standards . . . the term ought not to be
understood as encompassing items or services for which the employee „pays the fair
value.‟”
The Need for Caution in Accepting Loans from Persons Other Than Financial
Institutions. Whether a loan proposed to be made to a Member, officer, or employee
is on terms that are “commercially reasonable” – and hence acceptable under the
interpretation announced here – will depend on a number of facts and
circumstances. Thus
before
entering into any loan arrangement with a person other
than a financial institution, Members and staff should contact the Committee for a
review of the proposed terms, and a determination by the Committee on whether
the loan is acceptable under the gift rule. Those who accept such a loan without
prior Committee consideration run a risk of being found in violation of the gift rule,
and possibly other provisions of law as well.
3
The established nature of this standard is also indicated by the fact that according to
financial disclosures, a number of Members and staff have loans from individuals or entities that are
not financial institutions.
384 HOUSE ETHICS MANUAL
It also bears noting that merely because a proposed loan would be from a
financial institution does not necessarily mean that it is acceptable under the gift
rule. A loan from a financial institution must be on terms generally available to the
public in order to be acceptable under clause 5(a)(3)(R)(v) of the rule. However,
loans from relatives (as defined in the Ethics in Government Act), as well as
extensions of credit from credit card issuers on terms generally available to the
public, are clearly permissible under other provisions of the gift rule and require no
Committee review.
Any questions on this matter, as well as questions regarding any other
provision of the gift rule, should be directed to the Committee‟s Office of Advice and
Education at 5-7103.
Appendices
385
February 23, 1998
MEMORANDUM FOR ALL MEMBERS, OFFICERS AND EMPLOYEES *
FROM: Committee on Standards of Official Conduct
James V. Hansen, Chairman
Howard L. Berman, Ranking Democratic Member
SUBJECT: Outside Earned Income Restrictions on Members and Senior Staff
______________________________________________________________________________
Introduction. The Ethics Reform Act of 1989 imposed a number of
restrictions on the outside earned income of Members and senior staff
1
of the House
and Senate, as well as senior officials in the other branches of government. One of
these restrictions is a prohibition on their receiving “compensation for practicing a
profession which involves a fiduciary relationship.” 5 U.S.C. app. 4 § 502(a)(3);
House Rule 47, cl. 2(3) [now House Rule 25, cl. 2(a)].
2
This Committee is responsible for implementing these provisions in the
House, and under them, the Committee has generally held that Members and
senior staff may
not
receive pay for services rendered in the fields of law, real estate
or insurance. Otherwise, however, up to now the Committee has implemented
these provisions in a way that
has
allowed compensation for certain professional
services, even though they are generally viewed as involving a fiduciary
relationship.
After receiving inquiries on whether Members who are doctors may collect
fees for providing medical services, the Committee decided to review its policy in
this area. With this memorandum, the Committee announces that it will no longer
approve the receipt of compensation for
any
professional services that involve a
“fiduciary relationship” as that term is generally defined in law. The prohibition, as
now implemented by the Committee, extends to the practice of medicine for
compensation. In the Committee‟s view, the approach previously used – to the
extent it allowed receipt of compensation for such professional services – was not
consistent with the terms or the legislative history of the Ethics Reform Act.
* This memorandum was originally written in 1998. It has been updated solely to reflect
current House rule numbers and salary information.
1
“Senior staff” refers to employees who are paid at or above a particular threshold annual
rate for more than 90 days in a calendar year. In 1998, the threshold rate is $87,030 [In 2008,
threshold rate is $114,468.]
2
As generally used, the term “fiduciary” refers to an obligation to act in another person‟s best
interests, or a relationship of trust in which one relies on the integrity, fidelity and judgment of
another.
House Ethics Manual
, 102d Cong., 2d Sess. (April 1992), p. 102.
386 HOUSE ETHICS MANUAL
Furthermore, that approach was not consistent with that used in the Senate or the
Executive Branch.
Elaboration on the background and the terms of the Committee‟s action
follows.
Background. As a result of the Ethics Reform Act of 1989, both statutory law
and the House rules include provisions that prohibit Members and senior staff from
doing, as here relevant, three things:
“receiv[ing] compensation for practicing a profession which involves a
fiduciary relationship,”
“receiv[ing] compensation for affiliating with or being employed by a
firm, partnership . . . or other entity which provides professional
services involving a fiduciary relationship,” and
permitting one‟s name to be used by such an entity. 5 U.S.C. app. 4
§502(a); House Rule 47, cl. 2 [now House rule 25, cl. 2].
3
When the Committee began to implement these provisions in 1990-91, it
elected, with regard to the key provision on professional practice,
not
to use a
conventional legal definition of the term “fiduciary relationship.” Instead, as
reflected on page 103 of the
House Ethics Manual
, 102d Cong., 2d Sess. (April
1992), the Committee elected to “evaluate the nature and circumstances of each
individual‟s particular employment on a case-by-case basis in light of the objectives
of the Act.” In this regard, the Committee adopted a three-part test for determining
whether any particular employment involved a prohibited fiduciary relationship,
i.e.
, (1) Could the employment result in a conflict of interest between private and
public responsibilities? (2) Does the employment create an appearance that an
official position is being used for private gain? and (3) Does the compensation
appear to be an effort to circumvent the ban on honoraria?
Using this three-part test, the Committee has issued advisory opinions
stating that a Member or senior staffer could not earn income from providing legal
advice, selling insurance, or acting as a real estate broker (see page 145 of the
Manual
). However, using this test, the Committee has also occasionally allowed
compensation for certain professional services, even though the services involved a
“fiduciary relationship” as that term is conventionally defined.
3
These same provisions also prohibit Members and senior staff from serving for
compensation as an officer or member of the board of any corporation or other entity, and from
receiving compensation for teaching without the prior approval of this Committee. With regard to
outside earned income from permissible activities, Members and senior staff are also subject to an
annual limitation. In calendar year 1998, the outside earned income limit is $20,505. [For 2008, the
limit is $25,830.]
Appendices
387
The Committee Action. As noted above, last year the Committee was
formally asked, for the first time since the 1989 Act took effect, whether Members
who are doctors may receive compensation for practicing medicine. Recently the
Committee decided, on the basis of essentially three factors, that those Members
may
not
receive compensation for practicing medicine.
First
, the statute and rule
are straightforward in banning receipt of compensation for practicing a profession
involving a fiduciary relationship, and it is undisputed that state laws generally
establish a fiduciary relationship between a doctor and his or her patient.
Second, while it has been argued that these provisions were not intended to
ban the compensated practice of medicine, the report of the 1989 House Bipartisan
Task Force on Ethics, which authored these provisions, states the following with
regard to their intended scope:
The task force intends the ban to reach, for example, services such as legal,
real estate, consulting and advising, insurance, medicine, architecture, or
financial.
Report of the Bipartisan Task Force on Ethics on H.R.3660
, 101st Cong.,1st Sess. 16
(Nov. 15, 1989).
Finally, both in the Senate and in the Executive Branch, these provisions are
interpreted to prohibit the receipt of compensation for practicing medicine. (The
regulations issued by the U.S. Office of Government Ethics, which are applicable to
Executive Branch officials, are set out at 5 C.F.R. § 2636.305.)
In so deciding the question of compensated medical practice, the Committee
also decided that the three-part test set out on p. 103 of the
Manual
will no longer
be used to determine whether
any
professional services involve a prohibited
fiduciary relationship. Instead, in making that determination, the Committee will
henceforth rely on the above-quoted list of professions set forth in the 1989 Task
Force report, as well as the admonition in the report (on page 16) that, “[T]he task
force intends that the term fiduciary not be applied in a narrow, technical sense and
wants to ensure that honoraria not reemerge in various kinds of professional fees
from outside interests.” With regard to any particular profession, the Committee
will also look to whether any fiduciary relationship is established by the applicable
state law, and to the regulations issued by the U.S. Office of Government Ethics.
In responding to the inquiries on medical practice, the Committee also issued
advice on how Members who are doctors may, consistent with the “fiduciary
relationship” provisions, continue to practice medicine on a limited basis.
Specifically, the Committee advised that a Member who is a doctor does
not
violate
those provisions when he or she receives, in any calendar year, fees or other
payments for medical services that do not exceed the “actual and necessary
expenses” incurred by the Member during the year in connection with the practice.
388 HOUSE ETHICS MANUAL
In other words, receipt of fees and other income in that amount is
not
deemed to
constitute the practice of medicine for compensation.
The Committee adopted this position on medical practice in response to two
points made by Members who are doctors: they need to continue to practice in order
to maintain their skills, and perhaps even their license to practice medicine, and
medical practice necessarily entails a number of extraordinary expenses, including
in particular the cost of malpractice insurance. It is also noteworthy that defining
compensation in this manner accords with the definition of that term used by the
Office of Government Ethics. 5 C.F.R. § 2636.303(b)(6). This limitation on the
receipt of fees and payments for medical services, which is keyed to the
actual
and
necessary
expenses incurred in one‟s practice, precludes the receipt of compensation
from medical practice in any form.
Members and senior staff who receive outside income through the rendering
of professional services should consult with the Committee‟s Office of Advice and
Education (extension 5-7103) regarding the possible applicability of the “fiduciary
relationship” provisions in their circumstances. Any questions about this
memorandum should likewise be directed to the Office of Advice and Education.
Appendices
389
Regulations for the Acceptance of Decorations and Gifts
Including Travel or Expenses for Travel, by Members, Officers,
and Employees of the House of Representatives
From Foreign Governments
PROMULGATED BY THE COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT
1. AUTHORITY
The Committee on Standards of Official Conduct is authorized to issue
regulations on this subject by 5 U.S.C. § 7342(a)(6)(A), (g)(1), commonly known as
the Foreign Gifts and Decorations Act.
2. PURPOSE
The purpose of these regulations is to establish standards for the acceptance
and disclosure of decorations, gifts of more than minimal value, and gifts of travel
or expenses for travel taking place entirely outside the United States tendered by
foreign governments to Members, officers, and employees of the House of
Representatives.
3. GENERAL STANDARDS
(a) The United States Constitution (Article I, Section 9, clause 8) prohibits a
Federal official from accepting gifts of any kind whatever from a foreign government
without the consent of the Congress.
(b) The Foreign Gifts and Decorations Act (5 U.S.C. § 7342) prohibits an
officer or employee of the Government from requesting or otherwise encouraging the
tender of a gift or decoration from a foreign government, and prohibits the
acceptance of such gifts other than in accordance with the provisions of that Act as
implemented for Members, officers, and employees of the House by these
regulations.
(c) The House gift rule, clause 5 of House Rule 26, prohibits a Member, officer
or employee of the House from accepting any gift except as specifically provided in
that rule. Under clause 5(a)(3)(N) of the rule, among the gifts that may be accepted
is “[a]n item, the receipt of which is authorized by the Foreign Gifts and Decorations
Act.”
390 HOUSE ETHICS MANUAL
4. DEFINITIONS
As used in these regulations:
(a) “Member, officer, or employee of the House of Representatives” includes
the Resident Commissioner of Puerto Rico and the Delegates to the House, and
except for section 7 of these regulations, includes the spouse of any such individual
(unless such individual and spouse are separated) or a dependent of such individual
(as defined in section 152 of the Internal Revenue Code of 1986);
(b) “foreign government” means
(i) any unit of foreign governmental authority, including any foreign
national, State, municipal or local government;
(ii) any international or multinational organization whose membership is
composed of any unit of foreign government described in
subparagraph (i); and
(iii) any agent or representative of any such unit or such organization,
while acting as such;
(c) “decoration” means any order, device, medal, badge, insignia, emblem or
award tendered by, or received from, a foreign government;
(d) “gift” means a tangible or intangible present (other than a decoration)
tendered by, or received from, a foreign government; and
(e) “Committee” means the Committee on Standards of Official Conduct.
5. CONSENT OF CONGRESS FOR THE ACCEPTANCE OF DECORATIONS
The Congress has consented (5 U.S.C. § 7342(d)) to the accepting, retaining,
and wearing by a Member, officer, or employee of the House of Representatives of a
decoration tendered in recognition of active field service in time of combat
operations or awarded for other outstanding or unusually meritorious performance,
subject to the approval of the Committee.
(a)
Decorations of minimal intrinsic value
. Decorations presented to
Members, officers, or employees of the House tendered by or received from a foreign
government may be accepted by such Member, officer, or employee where the
intrinsic value of the decoration is of minimal value, without prior approval of the
Committee. Pursuant to 5 U.S.C. § 7342(a)(5), “minimal value” is redefined every
three years by the General Services Administration to reflect changes in the
consumer price index. The current figure, set in 1999, is $260, and thus a
decoration of minimal value is one having a retail value in the United States of
$260 or less. [Minimal value for calendar years 2008 through 2010 is $335.]
Appendices
391
(b)
Decorations of more than minimal intrinsic value
. Unless acceptance is
specifically approved by the Committee, decorations of more than minimal value, if
not promptly returned, are deemed to have been accepted on behalf of the United
States and shall become the property of the United States. Within 60 days after
acceptance of such a decoration, the decoration must be turned over to the Clerk of
the House of Representatives for disposal; or, with the approval of the Committee,
retained for official use. At the time such decoration is turned over to the Clerk or
retained for official use by a Member, officer, or employee, such individual must file
a disclosure statement concerning such decoration with the Committee as provided
in section 7(a) of these regulations.
6. CONSENT OF CONGRESS FOR THE ACCEPTANCE OF GIFTS
Congress has consented to the acceptance of certain gifts, or gifts under
particular circumstances, from foreign governments by officers or employees of the
Government, including Members, officers, and employees of the House.
(a)
Gifts of minimal value
. Members, officers, or employees of the House may
accept gifts of minimal value from foreign governments tendered and received as a
souvenir or mark of courtesy, including a meal, entertainment or local travel in the
United States when such a gift is related to official dates. Pursuant to 5 U.S.C.
§ 7342(a)(5), “minimal value” is redefined every three years by the General Services
Administration to reflect changes in the consumer price index. The current figure,
set in 1999, is $260, and thus a gift of minimal value is one having a retail value in
the United States of $260 or less. [Minimal value for calendar years 2008 through
2010 is $335.]
(b)
Gifts of more than minimal intrinsic value where refusal may cause
offense and embarrassment
. A Member, officer, or employee may accept tangible
gifts of more than minimal value when refusal would be deemed likely to cause
offense or embarrassment or otherwise adversely affect United States foreign
relations. However, any such tangible gift received and not promptly returned is
deemed to have been accepted on behalf of the United States, and upon acceptance
becomes the property of the United States. Within 60 days after accepting of such a
gift, the gift must be turned over to the Clerk of the House of Representatives for
disposal, or, with the approval of the Committee, retained for official use. At the
time such gift is turned over to the Clerk or retained for official use by a Member,
officer, or employee, such individual must file a disclosure statement concerning
such gift with the Committee as provided in section 7(a) of these regulations.
Intangible gifts of more than minimal value may be accepted only in accordance
with section 6(c) and (e) of these regulations.
392 HOUSE ETHICS MANUAL
(c)
Educational scholarship or medical treatment
. Members, officers, or
employees of the House may accept a gift of more than minimal value from a foreign
government when the gift is in the nature of an educational scholarship or medical
treatment.
(d)
Foreign educational or cultural exchange
. Acceptance of assistance from a
foreign government for participation in foreign exchange or visitors programs by
Federal officers or employees is consented to by Congress in certain instances
outlined in 22 U.S.C. § 2458a, the Mutual Educational and Cultural Exchange Act.
Assistance or grants received under that Act are not considered “gifts” under these
regulations.
(e)
Travel or expenses for travel outside of the United States
. A Member,
officer, or employee of the House may accept gifts of travel or expenses for travel
taking place entirely outside of the United States offered by a foreign government
when such travel or expenses for travel relate directly to the official duties of the
Member, officer, or employee. Gifts of travel or expenses for travel include food,
lodging, transportation and entertainment relating to the official duties of the
Member, officer, or employee. This provision allows a Member, officer, or employee
to take advantage of opportunities such as for on-site inspection or fact finding
while in a foreign country.
A spouse or dependent of a Member, officer, or employee of the House may
accept such travel or expenses for travel when accompanying the Member, officer, or
employee of the House. Such travel or expenses for travel may not be accepted
merely for the personal benefit, pleasure, enjoyment or financial enrichment of the
individual or individuals involved. The acceptance of any such travel or expenses
for travel shall be reported within 30 days after acceptance to the Committee on
Standards of Official Conduct, providing information required in section 7(b) of
these regulations. For the purposes of these regulations, travel or expenses for
travel are deemed accepted upon departure from the donor country.
7. REPORTS AND DISCLOSURE
Any gift provided to a spouse or dependent should be considered to be a gift
provided to the Member, officer, or employee and therefore must be disclosed by
such Member, officer, or employee.
For the purposes of these regulations, any decoration presented by a foreign
government to the spouse or a dependent of a Member, officer, or employee of the
House is considered to be presented to the Member, officer, or employee when it is
apparent the decoration would not have been offered but for the recipient‟s relation
to the Member, officer, or employee, and therefore must be disclosed by such
Member, officer, or employee.
Appendices
393
An appraisal of tangible gifts or decorations, if necessary, may be obtained
through the Clerk of the House of Representatives.
(a)
Tangible gifts and decorations
. Within 60 days after acceptance of a
tangible gift or decoration of more than minimal value pursuant to section 5(b) or
6(b) of these regulations, a Member, officer, or employee shall file a disclosure
statement with the Committee containing the following information:
(i) the name and position of the reporting individual and the recipient;
(ii) a brief description of the gift or decoration and the circumstances
justifying acceptance;
(iii) the estimated value in the United States at the time of acceptance;
(iv) the date of acceptance of the gift or decoration;
(v) the identity, if known, of the foreign government and the name and
position of the individual who presented the gift or decoration;
(vi) disposition or current location of the gift or decoration.
(b)
Other gifts
. Within 30 days after acceptance of a gift of travel pursuant to
section 6(e) of these regulations, a Member, officer, or employee shall file a
disclosure statement with the Committee containing the following information:
(i) the name and position of the reporting individual;
(ii) a brief description of the gift and the circumstances justifying
acceptance; and
(iii) the identity, if known, of the foreign government and the name and
position of the individual who presented the gift.
8. PUBLIC INSPECTION
Reports filed under these regulations shall be maintained by the Committee
on Standards of Official Conduct and made available for public inspection at
reasonable hours. Not later than January 31 of each year, the Committee on
Standards of Official Conduct will compile a listing of all statements filed during
the preceding year and will transmit such listing to the Secretary of State for
publication in the Federal Register.
Reports filed with the Committee under these regulations will be maintained
for public inspection for a period of 7 years following transmittal to the Secretary of
State.
394 HOUSE ETHICS MANUAL
Legal Expense Fund Regulations
MEMORANDUM TO ALL MEMBERS, OFFICERS, AND EMPLOYEES
1
From: Committee on Standards of Official Conduct
Nancy L. Johnson, Chairman
Jim McDermott, Ranking Democratic Member
Date: June 10, 1996
The new gift rule exempts “a contribution or other payment to a legal
expense fund established for the benefit of a Member, officer, or employee that is
otherwise lawfully made in accordance with the restrictions and disclosure
requirements of the Committee on Standards of Official Conduct,” as long as the
contribution is not from a registered lobbyist or an agent of a foreign principal
(House Rule 25, clause 5(a)(3)(E)). In light of this new rule, and pursuant to its
authority there under, the Committee hereby issues regulations explaining its
“restrictions and disclosure requirements” for legal expense funds. The regulations
set forth below supersede the Committee‟s prior policies under the old gift rule
2
and
take effect as of July 1, 1996. The prior policies remain in effect until that date.
Legal Expense Fund Regulations
1. A Member, officer, or employee who wishes to solicit and/or receive donations,
in cash or in kind, to pay legal expenses shall obtain the prior written
permission of the Committee on Standards of Official Conduct.
3
2. The Committee shall grant permission to establish a Legal Expense Fund
only where the legal expenses arise in connection with: the individual‟s
candidacy for or election to federal office; the individual‟s official duties or
position in Congress (including legal expenses incurred in connection with an
amicus brief filed in a Member‟s official capacity, a civil action by a Member
challenging the validity of a law or federal regulation, or a matter before the
Committee on Standards of Official Conduct); a criminal prosecution; or a
civil matter bearing on the individual‟s reputation or fitness for office.
1
These regulations have been updated in several respects, including to reflect certain
Committee policies established after the regulations were originally issued, and the renumbering of
the House Rules that occurred at the beginning of the 106
th
and 107
th
Congresses.
2
See House Ethics Manual
, 102d Cong., 2d Sess. 49-50 (1992).
3
Permission is not required to solicit and/or receive a donation in any amount from a relative
or a donation of up to $250 from a personal friend.
Appendices
395
3. The Committee shall not grant permission to establish a Legal Expense Fund
where the legal expenses arise in connection with a matter that is primarily
personal in nature (
e.g.
, a matrimonial action).
4. A Member, officer, or employee may accept pro bono legal assistance without
limit to file an amicus brief in his or her capacity as a Member of Congress; to
bring a civil action challenging the validity of any federal law or regulation;
or to bring a civil action challenging the lawfulness of an action of a federal
agency, or an action of a federal official taken in an official capacity, provided
that the action concerns a matter of public interest, rather than a matter that
is personal in nature. Pro bono legal assistance for other purposes shall be
deemed a contribution subject to the restrictions of these regulations.
5. A Legal Expense Fund shall be set up as a trust, administered by an
independent trustee, who shall oversee fund raising.
6. The trustee shall not have any family, business, or employment relationship
with the trust‟s beneficiary.
7. Trust funds shall be used only for legal expenses (and expenses incurred in
soliciting for and administering the trust), except that any excess funds shall
be returned to contributors. Under no circumstances may the beneficiary of a
Legal Expense Fund convert the funds to any other purpose.
8. A Legal Expense Fund shall not accept more than $5,000 in a calendar year
from any individual or organization.
9. A Legal Expense Fund shall not accept any contribution from a registered
lobbyist or an agent of a foreign principal.
10. Other than as specifically barred by law or regulation, a Legal Expense Fund
may accept contributions from any individual or organization, including a
corporation, labor union, or political action committee (PAC).
11. No contribution shall be solicited for or accepted by a Legal Expense Fund
prior to the Committee‟s written approval of the completed trust document
(including the name of the trustee). No amendment of the trust document is
effective, and no successor or substitute trustee may be appointed, without
the Committee‟s written approval.
12. Within one week of the Committee‟s approval of the trust document, the
beneficiary shall file a copy of the trust document with the Legislative
Resource Center (B-106 Cannon House Office Building) for public disclosure.
396 HOUSE ETHICS MANUAL
13. The beneficiary of a Legal Expense Fund shall report to the Committee on a
quarterly basis, with a copy filed for public disclosure at the Legislative
Resource Center:
a) any donation to the Fund from a corporation or labor union;
b) any contribution (or group of contributions) exceeding $250 in a
calendar year from any other single source; and
c) any expenditure from the Fund exceeding $250 in a calendar year.
The reports shall state the full name and street address of each donor,
contributor or recipient required to be disclosed. Beginning October 30, 1996,
these reports shall be due as follows:
Reporting Period Due Date
January 1 – March 31 April 30
April 1 – June 30 July 30
July 1 – September 30 October 30
October 1 – December 31 January 30
14. Any Member or employee who established a Legal Expense Fund prior to
July 1, 1996 shall make any necessary modifications to the trust document to
bring it into compliance with these regulations and shall disclose the trust
document with his or her first quarterly report of the 105th Congress on
January 30, 1997. Reports of receipts and expenditures shall be due
beginning October 30, 1996, as stated in paragraph 13, above.
Use of Campaign Funds for Legal Expenses
This Committee has stated (in Chapter 4 on campaign activity) that Members
may use campaign funds to defend legal actions arising out of their campaign,
election, or the performance of their official duties. More recently, however, the
Federal Election Commission (FEC) issued regulations defining impermissible
personal uses of campaign funds, including using campaign funds for certain legal
expenses. Any Member contemplating the use of campaign funds for the direct
payment of legal expenses or for contribution to a legal expense fund should first
contact the FEC.
Appendices
397
Travel Guidelines and Regulations
MEMORANDUM TO ALL MEMBERS, OFFICERS, AND EMPLOYEES
From: Committee on Standards of Official Conduct
Stephanie Tubbs Jones, Chairwoman
Doc Hastings, Ranking Republican Member
Date: February 20, 2007
______________________________________________________________________________
The new travel rules that were passed at the beginning of the 110
th
Congress
require the Committee to issue guidelines concerning the reasonableness of travel
expenses and the types of information that must be submitted to the Committee in
order to obtain prior approval of privately-sponsored, officially-connected travel.
1
The rules also direct the Committee to issue regulations describing when a two-
night stay will be permitted in order for a Member, officer, or employee to
participate in a one-day event sponsored by a private entity that retains or employs
a lobbyist, and the circumstances under which a lobbyist is permitted to have
de
minimis
involvement in planning, organizing, requesting, or arranging a trip.
2
The Committee hereby issues guidelines and regulations concerning the new
travel restrictions and requirements. In many significant areas, the regulations
and guidelines set forth below are new restrictions and requirements that
supersede
the Committee‟s policies under the travel rules that existed in previous
congresses, and
they take effect on March 1, 2007
.
Travel Guidelines and Regulations
3
A. Connection between Trip and Official Duties
A Member, officer, or employee seeking approval for travel must demonstrate
that the activities on the trip are related to the individual‟s official responsibilities
or matters arising from his or her official duties. In evaluating a request for
approval to travel at private expense, the Committee will evaluate the individual‟s
responsibilities, and/or whether the purpose of the trip relates to matters within the
general legislative or policy interests of the Congress. Travel will not be approved if
1
House Rule 25, cl. 5(i).
2
House Rule 25, cl. 5(b)(1)(C). For brevity‟s sake, references in the text to the term “lobbyist”
also include agents of a foreign principal.
3
These provisions address both the acceptance of in-kind transportation, lodging, and meals
as well as reimbursement of travel expenses.
398 HOUSE ETHICS MANUAL
it does not include sufficient officially-connected activities, or if it includes excessive
amounts of unscheduled time or opportunities for recreational activities during the
official itinerary, even if such activities are engaged in at personal expense.
B. Reasonableness of Travel Expenses
(1)
Transportation to the Event
: Members, officers, and employees may
accept up to business-class transportation on commercial air carriers or trains to
participate in Committee-approved, privately-sponsored travel. Other
transportation (including first-class airfare or train fare, charter travel, or travel on
private aircraft) may
only
be accepted if:
(a) it is demonstrated that the cost of such travel does not exceed the
cost of available business-class transportation (or if the traveler uses the traveler‟s
own frequent flyer or similar benefits to upgrade to first class);
(b) such travel is necessary to accommodate a disability or other
special need as substantiated in writing by a competent medical authority;
(c) genuine security circumstances require such travel;
(d) the scheduled flight time, including stopovers and change of planes,
is in excess of 14 hours; or
(e) the Committee permits such travel based on
exceptional
circumstances.
(2)
Local Transportation
: Local area transportation expenses during a
trip must be reasonable and unrelated to personal or recreational activities.
(3)
Lodging
:
(a) For travel to events arranged or organized
without
regard
to
congressional participation (for example, annual meetings of business or trade
associations or other membership organizations), Members, officers, and employees
may accept lodging accommodations at a pre-arranged location for event attendees
commensurate with those customarily provided to or purchased by other event
attendees. The quality or location of the accommodations may not be enhanced
because of the official position of the Member, officer, or employee.
(b) For travel to events arranged or organized
specifically
with
regard
to congressional participation (for example, fact-finding trips, site visits,
educational conferences, and other trips designed for congressional attendance),
Members, officers, and employees may accept reasonable lodging expenses at an
appropriate facility. Among the factors to be considered in judging the
reasonableness of expenses for a lodging facility are the cost of the facility, the
location of the facility and its proximity to the site(s) being visited, the quality of its
Appendices
399
conference facilities, any security concerns, and whether the facility may
accommodate the number of attendees at the event.
(4)
Food
:
(a) For travel to events arranged or organized
without
regard
to
congressional participation (for example, annual meetings of business or trade
associations or other membership organizations), Members, officers, and employees
may accept meals related to the event that are similar to those provided to or
purchased by other event attendees.
(b) For privately-sponsored travel to events arranged or organized
specifically with regard
to congressional participation (for example, fact-finding
trips, site visits, educational conferences, and other trips designed for congressional
attendance), Members, officers, and employees may accept reasonable meal
expenses at an appropriate facility. The factors to be considered in judging the
reasonableness of a meal expense include the maximum
per diem
rates for meals for
official Government travel published by the General Services Administration or, for
international travel, the maximum
per diem
rate for meals published by the State
Department.
(5)
Other Travel Expenses
: Members, officers, and employees may accept
reasonable miscellaneous travel expenses, such as transportation to and from
airports, security costs, interpreter fees, visa application fees, and similar expenses
that are necessary for the officially-connected purpose of the trip.
C. Relationship Between an Event and the Officially-Connected Purpose of
the Trip
The location of events arranged or organized
without regard
to congressional
participation (for example, annual meetings of business or trade associations) is
presumptively reasonable. The location of
other
events must be necessary to the
purpose of the event, or if more than one possible location may be relevant to the
event, then the location selected must be a reasonable one in relation to the
alternatives. If there is no specific location necessary or relevant to the purpose of
the event, the location selected must be a reasonable one in light of the nature of
the event and its participants, and should not create the appearance that the
Member, officer, or employee attending the event is using his or her public office for
personal gain.
D. Direct and Immediate Relationship between Source of Funding and an
Event
Expenses may only be accepted from an entity or entities that have a
significant role in organizing and conducting a trip, and that also have a clear and
400 HOUSE ETHICS MANUAL
defined organizational interest in the purpose of the trip or location being visited.
Expenses may not be accepted from a source that has merely donated monetary or
in-kind support to the trip but does not have a significant role in organizing and
conducting the trip.
E. One-day Event Trips Sponsored by a Private Entity that Retains or
Employs a Lobbyist
The Committee will authorize a Member, officer, or employee to accept a second
night‟s lodging and meal expenses in order for the individual to participate in a one-
day event when it determines that such expenses are necessary due to availability
of transportation to or from the event, or in those circumstances when an additional
night‟s stay is practically required in order to facilitate the individual‟s full
participation in the event. The Member, officer, or employee seeking approval for a
two-night stay
must request approval from the Committee
.
In determining whether to permit a second night‟s stay, the Committee will
consider the following factors:
(1) the availability of transportation to and from the location of the one-
day event;
(2) whether the trip is outside the continental United States or involves
travel across two or more time zones;
(3) whether the Member or staff person is participating in a full-day‟s
worth of officially-connected activities (
e.g.
, is the individual giving a speech, taking
part in fact-finding, observing presentations, or participating in a panel discussion);
or
(4) any other
exceptional
circumstances that are described in detail by the
traveler.
F.
De Minimis
Lobbyist Involvement in Planning, Organizing, Requesting, or
Arranging a Trip
Member and staff participation in officially-connected travel that is in any way
planned, organized, requested, or arranged by a lobbyist is
prohibited
, except as
provided below:
(1) when the travel is sponsored by an institution of higher education
within the meaning of section 101 of the Higher Education Act of 1965; or
Appendices
401
(2) when the travel is for a one-day event trip
and
the involvement of a
lobbyist in planning, organizing, requesting, or arranging the trip is
de minimis
,
meaning only negligible or otherwise inconsequential in terms of time and expense
to the overall planning and purpose of the trip.
G. Information that must be Submitted to the Standards Committee for
Purposes of Receiving Prior Approval of Privately-Sponsored Travel
A private sponsor offering officially-connected travel to a Member, officer, or
employ must complete and sign a Private Sponsor Certification Form, and provide a
copy of that form to the invitee(s). The sponsor should not submit that form directly
to the Committee. Private sponsors are strongly urged to submit the form to the
invitee(s) at least 30 days before the travel is scheduled to begin.
A Member, officer, or employee must submit to the Committee a completed
and signed Privately-sponsored Travel Approval Form that attaches or includes the
Private Sponsor Certification Form and, for staff travel, a copy of the Advance
Authorization of Employee Travel Form.
402 HOUSE ETHICS MANUAL
Guidance on Intern, Volunteer, and Fellow Programs
LETTER OF JUNE 29, 1990
[1]
Dear Colleague:
The Committee on Standards of Official Conduct has received a number
of inquiries regarding the propriety of House offices accepting services from
volunteers,
2
interns,
3
fellows,
4
and others who receive no salary from the House
of Representatives. This is to explain the Committee‟s policy on this subject for
all Members and House offices.
House Rule 24, “Prohibition of Unofficial Office Accounts,” was adopted
by the House on March 2, 1977, along with other recommendations of the
Commission on Administrative Review. H. Res. 287, 95
th
Congress, 123
Congressional Record 5933-53. In recommending the rule, the Commission
posed the question: “Is it proper for a private corporation, independent
businessman, or anyone else to pay for the conduct of the House‟s official
business?” The Commission concluded that the answer was “no,” that a “wall”
should exist between official and unofficial funds. H. Doc. No. 95-73,
Financial
Ethics
, 95
th
Cong., 1
st
Sess., p. 17.
In Advisory Opinion No. 6, interpreting the unofficial office account
prohibition, the House Select Committee on Ethics concluded that in addition to
money, Rule 24 prohibits the private, in-kind contribution of goods or services
for official purposes. The Select Committee found that “no logical distinction
can be drawn between the private contribution of, in-kind services and the
private contribution of money, and that both perpetuate the very kind of
unofficial office accounts and practices that are prohibited” by the rule. H. Rep.
1
This letter has since been updated to reflect, among other things, the re-numbering
of the House Rules that occurred at the beginning of the 106
th
Congress and in the 107
th
Congress.
2
A “volunteer” as used in this letter means an individual performing services in a
House office without compensation from any source.
3
An “intern” is an individual performing services in a House office on a temporary
basis incidental to the pursuit of the individual's educational objectives. Some interns receive
no compensation from any source, while some receive compensation or other assistance from
an educational institution or other sponsoring entity. While some interns may receive
compensation from House allowances, this letter deals primarily with those who do not receive
such House compensation.
4
A “fellow” is an individual performing services in a House office on a temporary basis
as part of an established mid-career education program, while continuing to receive the usual
compensation from his or her sponsoring employer.
Appendices
403
No. 95-1837, 95
th
Cong., 2d Sess.,
Final Report of the Select Committee on
Ethics
, p. 65.
However, the Select Committee did recognize several exceptions to the
general prohibition against the acceptance of services, including the following:
Services provided by federal, state, or local
government agencies;
Intern, fellowship, or similar educational programs
that are primarily of educational benefit to the
individual, as opposed to primarily benefiting the
Member or office, and which do not give undue
advantage to special interest groups.
Accordingly, while House Rule 24 generally prohibits Members from accepting
either the services of volunteers or of individuals compensated for congressional
duties by an outside entity, limited authority exists to accept the services of
volunteers, interns, and fellows.
In this regard, the Select Committee expressed the view that the intent
and spirit of House Rule 24 would be violated if a congressional office
attempted to supplement official allowances by directly or indirectly raising,
receiving, or disbursing contributions, if such contributions were to be used to
compensate individuals working in a House office, or used to support programs
which placed interns, fellows, or volunteers in House offices. The prohibition
against engaging in such activities applies to both Members and staff.
Also relevant to this issue is 31 U.S.C. § 1342, as follows:
An officer or employee of the United States
Government or of the District of Columbia
government may not accept voluntary services for
either government or employ personal services
exceeding that authorized by law except for
emergencies involving the safety of human life or the
protection of property.
In Opinion B-69907, issued February 11, 1977, the Comptroller General of the
United States determined that the statute applies to Members of Congress and
other officers and employees of the Legislative Branch. However, because the
statute was enacted to prevent funding deficiencies, it was deemed not to
prohibit a Member of Congress from utilizing volunteers to assist in the
performance of official functions of the Member‟s office, provided such
volunteers agree in advance to serve without compensation, so that there is no
basis for a future claim for payment.
The acceptance of services from volunteers not associated with an
established program potentially raises other concerns. Individuals who are not
404 HOUSE ETHICS MANUAL
House employees
5
are not subject to rules and statutes governing their conduct.
However, such individuals may be in a position to take actions and make
representations in the name of a Member, for the
Member
may be responsible.
The Member or office may also be subject to a claim of liability for work-related
injuries to, or caused by, a volunteer.
In view of the above, the Committee has established the guidelines set
forth below to Members and House offices considering acceptance of the
services of interns, fellows, or volunteers who will not be paid by the House of
Representatives.
INTERN AND FELLOWSHIP PROGRAMS
A Member or House office may accept the temporary
services of an
intern
participating in a
program
, as
discussed below, which is primarily of educational
benefit to the participant, irrespective of whether the
individual is being compensated by a third-party
sponsoring organization.
Similarly, a Member or House office may accept the
temporary services of a
fellow
participating in a mid-
career education
program
, as discussed below, while
the individual receives compensation from his or her
employer.
An intern or fellowship
program
should be operated
by an entity not affiliated with a congressional office,
and the organization should be willing to indicate its
sponsorship of the intern or fellow in writing.
House Members and staff may not raise or disburse
funds for programs which place interns or fellows in
their own offices, nor may congressional offices solicit
or recruit volunteers. Members do, however, have
the right to select or approve those who will be
working in their offices.
While intern and fellowship programs are often
sponsored by educational institutions, other public or
private organizations may act as sponsors, provided
5
An “employee” for the purposes of this letter means a person appointed to a position
of employment in the House of Representatives by an authorized employing authority, whether
that person is receiving a salary disbursed by the Clerk of the House, or is in a Leave Without
Pay status.
Appendices
405
the arrangement does not give undue advantage to
special interests. In that regard, the Member
accepting the services of an intern or fellow should
not assign him or her to duties that will result in any
direct or indirect benefit to the sponsoring
organization.
VOLUNTEERS
A Member may accept volunteer services from his or
her own immediate family,
i.e.
, spouse, children, or
parents (although Federal law, at 5 U.S.C. § 3110,
prohibits Members from appointing relatives to paid
positions); this is consistent with regulations of the
Committee on House Administration which allow
Members to use their own personal resources to
support the activities of their own offices.
A Member or House office may accept the temporary
services of a volunteer, provided the Member or
office has a clearly defined program to assure that:
(1) the voluntary service is of significant educational
benefit to the participant; and (2) that such
voluntary assistance does not supplant the normal
and regular duties of paid employees. In this regard,
limitations should be imposed on the number of
volunteers who may assist a congressional office at
any one time, as well as the duration of services any
one volunteer may provide. Voluntary assistance to
a congressional office should not be solicited.
A volunteer should be required to agree, in advance
and in writing, to serve without compensation and to
not make any future claim for payment, and
acknowledge that the voluntary service does not
constitute House employment.
(Obviously, a Member or House office wishing to use
the services of an individual seeking to volunteer
may also place the individual in a temporary intern
position on the Member‟s clerk hire payroll or other
personnel fund, as authorized by the Committee on
House Administration. The individual may also be
referred to an organization which sponsors an
internship.)
406 HOUSE ETHICS MANUAL
Volunteers, interns, and fellows should be made aware of the
implications their activities have for the Member in whose office they work.
The Committee recommends that Members and House offices obtain the
agreement of such individuals that, although not House employees, they will
conduct themselves in a manner which reflects creditably on the House.
Members are also encouraged to obtain the Committee‟s approval for any
volunteer, intern, or fellowship program in which they wish to participate.
The above guidelines do not prohibit a Member or other House office
from accepting services, including detailed staff, provided on an official basis by
a unit of Federal, state, or local government. (House staff and resources may
not, however, be similarly used to perform the work of other governmental
units, or of any private organization.)
As a related matter, House Rule 23, clause 11, part of the Code of Official
Conduct, provides that a Member of the House of Representatives shall not
authorize or otherwise allow a non-House individual or organization to use the
words “Congress of the United States,” “House of Representatives,” or “official
business” on any letterhead or envelope. The intent of this provision is to
prevent persons who are not Members, officers, or employees of the House from
represent that their activities are officially sponsored or sanctioned. This
prohibition also extends to other printed matter, such as business cards.
Accordingly, individuals not paid by the House of Representatives may
not
use
or obtain business cards or other materials suggesting an employment
relationship with the House.
Any questions concerning these matters should be directed to the
Committee‟s Office of Advice and Education at 225-7103.
Sincerely,
JULIAN C. DIXON
Chairman
JOHN T. MYERS
Ranking Minority Member
Appendices
407
House Administration Committee-House Standards Committee Joint
Letter on Redistricting of May 24, 2001
Dear Colleague:
Since the start of the redistricting process resulting from the 2000
Census, the Committees on House Administration and Standards of Official
Conduct have been receiving questions on whether redistricting activities can
be conducted with official resources.
We have reexamined our past policy statements, and we believe that
constituents have a right to inquire about, and Members have a
responsibility to respond to questions regarding the consequences of
redistricting. We also recognize that Members, to stay current and fully
informed, may wish to meet and communicate with other Members about
redistricting, and be briefed from time to time by outside individuals or
organizations.
While responding to constituent inquiries is a continuing official
activity, redistricting is usually a relatively brief “once a decade” activity
affecting congressional districts. As such, redistricting activities in
congressional offices should be merely incidental to each day‟s official
business, and should be minimal in nature, frequency, time consumed, and
use of resources.
We would have no reservations about redistricting activities conducted
in accordance with the above criteria in congressional offices or using official
resources.
Sincerely,
Bob Ney, Chairman
House Administration
Steny Hoyer, Ranking Minority Member
House Administration
Joel Hefley, Chairman
Standards of Official Conduct
Howard L. Berman, Ranking Minority Member
Standards of Official Conduct
INDEX
409
Page numbers followed by
n
indicate footnotes.
A
Access
buying ............................................................................................................................................ 28, 189
public access to reports ....................................................................................................................... 264
special .................................................................................................................................................. 148
Administrative agencies.
see also
Government agencies
ex parte
communications to ........................................................................................................ 356-358
Administrative review.
see also
Committee on House Administration
Commission on Administrative Review (Obey Commission) ............................................................... 6
Advance payment of royalties ......................................................................................................... 224-228
Advertising, commercial ......................................................................................................................... 326
Advisory groups ............................................................................................................................... 339-340
Advisory opinions ...................................................................................................................................... 21
Age discrimination .......................................................................................................................... 268, 269
Age Discrimination in Employment Act of 1967 .................................................................................. 269
Agency fellowships ................................................................................................................................ 317
n
Agency proceedings ................................................................................................................................. 302
Agents of a foreign principal
definition of .............................................................................................................................. 34-35, 92
n
expressly prohibited gifts from ....................................................................................................... 71-72
limitations on gifts of food from ...................................................................................................... 37-38
Agreements
crop insurance agreements .............................................................................................................. 201
n
publishing contracts .................................................................................................................... 224-228
requirements for disclosure of ........................................................................................................... 261
Aircraft
flights on non-commercial ........................................................................................................... 118-120
Americans with Disabilities Act of 1990 ............................................................................................... 270
Amicus curiae
(friend of the court) briefs ............................................................................... 65, 311, 395
Amtrak ...................................................................................................................................................... 56
Annual limitations on gifts ........................................................................................... 27-28, 29, 37, 100
n
Annual limitations on outside earned income ..................................................................... 228-230, 386
n
exclusions ..................................................................................................................................... 228-230
family business exemption ................................................................................................................. 230
Select Committee on Ethics Advisory Opinion No. 13 .............................................................. 364-365
for senior staff .............................................................................................................................. 141-142
Appearances
compensation for ................................................................................................................................. 192
definition of ......................................................................................................................................... 191
payment for (
see
Honoraria)
Art
Congressional Art Competition ......................................................................................................... 346
gifts of .................................................................................................................................................... 75
Articles
definition of ......................................................................................................................................... 191
payment for (
see
Honoraria)
Assets: financial disclosure of ......................................................................................................... 254-257
Assisting non-constituents ............................................................................. 309-310.
see also
Casework
Assisting supporters ....................................................................................... 308-309.
see also
Casework
Attendance at events (including meals) ............................................................................................. 41-50
accompanying individuals ............................................................................................................... 43-44
410 HOUSE ETHICS MANUAL
free .............................................................................................................................................. 31, 45-46
Auctions of federal property ................................................................................................................... 202
Awards and prizes ................................................................................................... 69.
see also
Honoraria
bona fide awards and gifts ................................................................................................................. 192
bona fide public service awards ................................................................................................... 53
n,
66
B
Baby gifts ............................................................................................................................................. 70-71
Bank accounts: financial disclosure of .................................................................................................. 257
BCRA.
see
Bipartisan Campaign Reform Act
Beverages.
see
Food and beverages
Bipartisan Campaign Reform Act (BCRA) (Shays-Meehan or McCain-Feingold) ............................. 153
Bipartisan Task Force on Ethics ................................................................................ 6, 189, 250-251, 278
BlackBerrys ...................................................................................................................................... 175-176
Board service
financial benefits from ...................................................................................................................... 222
n
payments to charity in lieu of fees for ............................................................................................. 222
n
prohibition against compensation for ............................................................................... 222-223, 386
n
Bond transactions: financial disclosure of ..................................................................................... 257-258
Bonuses ................................................................................................................................................... 140
Book-related activities and sales ..................................................................................................... 226-228
Book royalties .................................................................................................................................. 224-228
Books, periodicals, and other informational materials: gifts of ........................................................ 54-55
Borrowing campaign funds ................................................................................... 167-168.
see also
Loans
Bribery ............................................................................................................................ 12, 79-83, 208, 276
as conduct not reflecting creditably on the House .............................................................................. 14
conspiring to violate federal bribery statutes ..................................................................................... 15
expulsion for .......................................................................................................................................... 17
violations concerning .......................................................................................................................... 14
n
Broadcast coverage of House floor proceedings ..................................................................................... 128
Buildings
House buildings, rooms and offices
campaign activity in congressional offices ....................................................................... 16, 132-134
campaign contributions in House offices ................................................................................ 149-150
Member-to-Member solicitation in House buildings .................................................................... 146
as official resources ......................................................................................................................... 127
soliciting contributions in ........................................................................................................ 144-146
regulations governing use of House facilities ................................................................................... 325
Bulk book sales ....................................................................................................................................... 227
Business cards ........................................................................................................................................ 290
Business consulting and advising ................................................................................................... 217-218
Business dealings
outside business, employment, or other activities
benefits resulting from ................................................................................................................ 59-61
travel resulting from ................................................................................................................ 105-106
outside earned income from business corporations .......................................................................... 231
support for commercial enterprises ............................................................................................ 349-350
Businesses.
see also
Corporations
family-owned businesses .................................................................................................... 229-230, 369
n
personal service ................................................................................................................... 231, 366-367
unincorporated ..................................................................................................................... 232, 368-369
Buydowns ............................................................................................................................................. 35-36
Index
411
Buyout agreements ................................................................................................................................. 261
C
Campaign activity ............................................................................................................................ 121-184
applicable laws, rules, and standards of conduct ...................................................................... 179-184
criminal code provisions applicable to ........................................................................................ 183-184
gift rule provisions applicable to ................................................................................................. 182-183
by House employees and staff .......................................................................................................... 126
n
on LWOP status .............................................................................................................................. 137
need to comply with laws and rules during ........................................................................... 137-142
outside congressional office and on their own time ............................................................... 135-143
salary reductions and ..................................................................................................................... 140
internet activities for influencing federal elections ........................................................................ 139
n
campaign-related activities that may take place in Congressional offices .............................. 132-135
criminal code provisions applicable to ........................................................................................ 183-184
in official congressional offices ..................................................................................................... 16, 124
permissible limited activities ............................................................................................................. 124
prohibition against using official resources for campaign or political purposes ..................... 123-135
providing published materials to campaign ............................................................................... 133-135
“testing the waters” activities ............................................................................................................ 143
travel reported on FEC filings ................................................................................................... 112, 260
volunteer work .......................................................................................................................... 135, 138
n
Campaign/congressional office referrals ............................................................................................... 133
Campaign contributions .................................................................................................................. 143-151
acceptability of ............................................................................................................................. 148-150
delivery to House office ....................................................................................................................... 148
failure to report ..................................................................................................................................... 14
in House offices ............................................................................................................................ 149-150
in-kind ....................................................................................................................................... 112, 122
n
linked to official actions ...................................................................................................................... 150
to one’s employing Member ......................................................................................................... 137-140
receipt of ....................................................................................................................................... 148-150
“soft money” contributions ................................................................................................................. 145
soliciting ....................................................................................................................................... 143-148
telephone solicitations ........................................................................................................................ 145
travel contributions ............................................................................................................................ 112
Campaign events ...................................................................................................................................... 41
accepting free attendance at ..................................................................................................... 41, 47-48
valuation of tickets to ......................................................................................................................... 73
n
Campaign funds ....................................................................................................................... 152-179, 327
bona fide campaign or political purposes ........................................................................... 153, 154-163
borrowing ..................................................................................................................................... 167-168
congressional expenses that may not be paid with ................................................................... 177-178
definition of ....................................................................................................................................... 118
n
mixed use situations .................................................................................................................... 172-173
permissible uses of ............................................................................................................... 153, 154-163
personal use of
definition of ..................................................................................................................................... 172
FEC regulations ....................................................................................................................... 171-173
prohibition against .......................................................................................................... 153, 163-173
prohibition against making contributions to one’s employing Member ................................... 137-140
prohibition against personal use of ............................................................................................ 163-173
proper use of ................................................................................................................................. 152-179
412 HOUSE ETHICS MANUAL
restrictions on official use of ....................................................................................................... 173-174
solicitations of ...................................................................................................................... 143-148, 373
use for bona fide campaign or political purposes ....................................................................... 154-163
use for cell phones or BlackBerrys used for official House business ........................................ 175-176
use for compensation for performance of official duties or for services to congressional office ..... 178
use for Congressional expenses .................................................................................................. 173-177
use for donation to charitable organizations ............................................................................. 155-156
use for gifts ................................................................................................................................... 162, 176
use for House leadership elections .................................................................................................... 161
use for legal expenses ...................................................................................... 65-66, 156-157, 172, 396
use for letters, mailings, communications not frankable in content ........................................ 160-161
use for meal expenses .................................................................................................. 159, 169-170, 172
use for moving expenses ..................................................................................................................... 162
use for official House purposes .................................................................................... 173-179, 375-377
use for purchase or acquisition from Member or relative ......................................................... 170-171
use for receptions and related activities for visiting constituents ............................................ 159-160
use for special events for House or campaign staff ................................................................... 161-162
use for travel expenses ................................................................. 118-119, 157-159, 168-169, 172, 173
use for vehicle expenses ...................................................................................................... 172, 174-175
verification requirement for use of .................................................................................................... 165
Campaign letterhead ....................................................................................................................... 179-181
Campaign resources.
see also
Campaign funds
bona fide campaign or political purposes .................................................................................. 153, 154
borrowing ..................................................................................................................................... 167-168
payment of legal expenses with .................................................................................................. 156-157
payment of meal expenses with ......................................................................................................... 159
payment of travel expenses with ................................................................................. 118-119, 157-159
personal use of prohibited ............................................................................................................ 163-173
proper use of ................................................................................................................................. 152-179
use for bona fide campaign or political purposes ....................................................................... 154-163
use for official House purposes ................................................................................................... 173-179
verification requirement for use of .................................................................................................... 165
Campaign vehicles ................................................................................................................... 173, 174-175
Campaign websites ......................................................................................................................... 131, 178
Candidates
contributions to multicandidate political committees ...................................................................... 140
receiving income for political consulting for ................................................................................... 233
n
requirements for registration as ...................................................................................................... 253
n
Car expenses .................................................................................................................... 172, 173, 174-175
Casework .......................................................................................................................................... 299-322
assisting non-constituents .......................................................................................................... 309-310
assisting supporters ..................................................................................................................... 308-309
congressional standards for ........................................................................................................ 305-314
contacting other governments .................................................................................................... 312-313
gifts and compensation for .......................................................................................................... 314-316
government procurement and grants ......................................................................................... 310-311
intervening with nongovernmental parties ...................................................................................... 313
judicially imposed limits on ........................................................................................................ 303-305
for personal financial interests .......................................................................................................... 314
standards of conduct regarding ................................................................................................. 151, 307
Cash donations .......................................................................................................................................... 64
Category of value .................................................................................................................................. 255
n
Caucuses ........................................... 336
n,
337.
see also
Congressional Member Organizations (CMOs)
Index
413
Cell phones or BlackBerrys ............................................................................................................. 175-176
Censures .................................................................................................................................................... 12
Certificates of deposit: financial disclosure of ...................................................................................... 257
Certification of no financial interest in fiscal legislation .............................................................. 238-239
Charitable organizations ........................................................................................................................ 194
Charity
assignment of outside earned income to ........................................................................................... 370
donations to .................................................................................................................................. 194-196
of campaign funds ........................................................................................................................... 156
tax deductible ................................................................................................................................ 194
n
payments in lieu of directors’ fees to ............................................................................................... 222
n
payments in lieu of honoraria to ...................................................................................... 222
n,
255, 371
using campaign funds and resources for .................................................................................... 155-156
Charity events ........................................................................................................................................... 44
“free attendance” at, defined ............................................................................................................ 44-46
fundraisers ................................................................................................................................. 41, 44-45
paying market value for tickets to ....................................................................................................... 74
restrictions on attendance at .......................................................................................................... 44-45
source of invitations for ................................................................................................................... 46-47
travel to .................................................................................................................................. 45, 116-117
valuation of tickets ............................................................................................................................... 74
Child labor protection ............................................................................................................................. 270
Children
disclosure of assets of dependent ................................................................................................ 253-254
prohibitions against nepotism .................................................................................................... 272-273
travel expenses for accompanying minor children ............................................................ 101-103, 158
Civil Rights Act of 1964 .......................................................................................................................... 269
Civil service ............................................................................................................................ 316-318, 317
n
Clerk hire allowance ...... 267n, 275, 280, 359
n
.
see also
Members’ Representational Allowance (MRA)
Close corporations ................................................................................................................................... 232
CMOs.
see
Congressional Member Organizations
Coalitions ................................................. 336
n
.
see also
Congressional Member Organizations (CMOs)
Code of Ethics for Government Service ...................................................................... 2-3, 4, 151, 245, 355
and campaign activity ................................................................................................................ 122, 151
and employment considerations for spouses of Members and staff ................................................ 245
general employment and compensation provisions .......................................................................... 279
illegal hiring and firing practices ............................................................................................... 275-276
and outside employment and income ................................................................................................ 186
prohibitions against accepting gifts ................................................................................................ 26-27
violations of ...................................................................................................................................... 20-21
Code of Official Conduct (House Rule 23) .......................................................................................... 2-3, 6
annual financial disclosure requirement (House Rule 26) ................................................................... 6
and casework ....................................................................................................................................... 314
clause 10 ........................................................................................................................................... 17-19
and consultants ............................................................................................................................ 293-294
and employment considerations for spouses of Members and staff ................................................ 245
illegal hiring and firing practices ............................................................................................... 275-276
prohibitions against accepting gifts ................................................................................................ 26-27
prohibitions against employment decisions on basis of political affiliation ................................... 274
prohibitions against nepotism ........................................................................................................... 272
CODEL trips ............................................................................................ 109, 115.
see also
Official travel
Commemorative items ......................................................................................................................... 53-54
Commercial advertising and promotions .............................................................................................. 326
414 HOUSE ETHICS MANUAL
Commercial enterprises .................................................................................................................. 349-350
Commission on Congressional Mailing Standards.
see
Franking Commission
Committee funds ........................................................................................................................... 125, 336
n
Committee on House Administration
general employment and compensation provisions ................................................................... 276-284
guidelines for detailees ....................................................................................................................... 293
Joint Letter on Redistricting of May 24, 2001 (House Administration Committee-House Standards
Committee) ................................................................................................................................ 408
Model Employee Handbook
......................................................................................................... 270-271
regulations concerning expenditures from committee funds ......................................................... 336
n
regulations concerning involvement with outside activities and entities ....................................... 344
Special Subcommittee on Contracts ...................................................................................................... 5
Committee on Standards of Official Conduct
action against discrimination ..................................................................................................... 268-269
actions against salary kickbacks ................................................................................................ 275-276
actions regarding volunteers and interns .................................................................................. 290-292
adjudicatory subcommittees ................................................................................................................ 11
Advisory Opinion No. 1 ............................................................................................................... 356-358
Advisory Opinion No. 2 ............................................................................................................... 359-360
Advisory Opinion No. 5 ............................................................................................................... 372-374
Advisory Opinion No. 6 ............................................................................................................... 375-377
annual ethics training ........................................................................................................................ 283
composition of ......................................................................................................................................... 5
general employment and compensation actions ........................................................................ 279-280
history of ............................................................................................................................................... 4-8
information to be submitted for approval of privately-sponsored travel ........................................ 402
investigative subcommittees ............................................................................................................ 8, 10
letters of reproval ............................................................................................................................. 11-12
membership ......................................................................................................................................... 7, 8
procedures .......................................................................................................................................... 8-12
public sanction hearings ...................................................................................................................... 11
regulations for acceptance of decorations and gifts ................................................................... 389-393
regulations for legal expense funds ............................................................................................ 394-396
requirement for approval for compensation for teaching .......................................................... 223-224
requirement for approval of publishing contracts ..................................................................... 224-228
requirements for approval for travel ................................................................................................. 104
requirements for complaints ............................................................................................................... 8-9
requirements for document verification .............................................................................................. 8
n
sanctions they may recommend ........................................................................................................... 11
size ....................................................................................................................................................... 7, 8
staff .......................................................................................................................................................... 7
standards for casework ................................................................................................................ 305-306
standards for communications with federal government agencies .......................................... 306-307
Statements of Alleged Violation ..................................................................................................... 10-11
travel guidelines and regulations ............................................................................................... 397-401
Committee proceedings .......................................................................................................................... 128
Committee staff.
see also
specific committees by name
detailees ........................................................................................................................................ 292-293
former employees ................................................................................................................................ 241
general employment and compensation provisions for .................................................................... 277
outside employment of ........................................................................................................................ 207
Committee websites ................................................................................................................................ 131
Commodities transactions: financial disclosure of ....................................................................... 257-258
Index
415
Communications
with agency decision-makers ...................................................................................................... 303-305
ban on communications paid for with official funds .................................................................. 130-131
on constituent matters ................................................................................................................ 356-358
with courts .................................................................................................................................... 311-312
“Dear Colleague” letters ..................................................................................................................... 333
electronic ......................................................................................... 130 (
see also
Telecommunications)
expressions or symbols of official sponsorship ........................................................................... 346-347
Franking Commission (Commission on Congressional Mailing Standards) ......................... 320
n,
333
Franking Regulations ................................................................................................................. 128, 129
with government agencies .................................................................................................................. 302
congressional standards for .................................................................................................... 305-308
judicially imposed limits on .................................................................................................... 303-305
mailings for House leadership elections ............................................................................................ 161
with nongovernmental parties ........................................................................................................... 313
not frankable in content .............................................................................................................. 160-161
off-the-record
(ex parte)
............................................................................................................... 300-302
to administrative agencies ...................................................................................................... 356-358
Committee on Standards of Official Conduct Advisory Opinion No. 1 ................................ 356-358
with courts ....................................................................................................................................... 311
proscription against ................................................................................................................. 301-302
official mail allowance ............................................................................................................ 267n, 359
n
official mailing lists ............................................................................................................................ 128
with other governments .............................................................................................................. 312-313
press releases ............................................................................................................................... 134-135
private correspondence with foreign governments ......................................................................... 312
n
prohibitions against campaign or political communications from House e-mail address 144-146, 176
unsolicited mass communications
definition of ..................................................................................................................................... 130
90-day ban on ........................................................................................................................... 129-131
Communications devices, campaign-funded .................................................................................. 175-176
Community service .......................................................................................................................... 155-156
Compensation
advance payment of royalties ..................................................................................................... 224-228
for affiliating with entities that provide covered professional services ................................... 220-221
for casework ................................................................................................................................. 314-316
for consulting and advising ......................................................................................................... 217-218
court actions ................................................................................................................................. 281-282
deferred compensation plans ..................................................................................................... 261, 370
in excess of $5,000 paid by one source ........................................................................................ 261-262
from foreign governments ........................................................................................................... 205-206
general provisions for .................................................................................................................. 276-282
lump sum payments .................................................................................................................... 283-284
to Member’s beneficial interests ........................................................................................................ 245
for officer or board member service .................................................................................. 222-223, 386
n
from outside employers ............................................................................................................... 196-197
overtime pay ........................................................................................................................................ 270
from ownership or other investments of equity (
see
Unearned income)
pay discrimination ...................................................................................................................... 270, 271
for personal services ................................................................................. 231 (
see also
Earned income)
for practice of covered professions .............................................................................................. 216-220
for practice of law or other professions ...................................................................................... 214-222
for practice of medicine ............................................................................................................... 218-219
416 HOUSE ETHICS MANUAL
Standards Committee actions ..................................................................................................... 279-280
for teaching ........................................................................................................................ 223-224, 386
n
Competitive service ......................................................................................................................... 316-318
Computer equipment
internet activities for influencing federal elections ........................................................................ 139
n
office desktop computers .................................................................................................................... 176
Conferences .......................................................................................................... 340-344.
see also
Events
Confidential disclosure ............................................................................................................ 263, 296-297
Confidentiality of records ................................................................................................................ 313-314
Conflict of interest .......................................................... 187, 215.
see also
Personal interest, matters of
Congressional Accountability Act of 1995 ...................................................................................... 269-271
Congressional Art Competition ............................................................................................................. 346
Congressional e-mail ............................................................................................................... 128-129, 176
Congressional mail
Franking Commission (Commission on Congressional Mailing Standards) ........................ 320
n,
333
Franking Regulations ................................................................................................................. 128, 129
mailings for House leadership elections ............................................................................................ 161
mailings not frankable in content .............................................................................................. 160-161
Official mail allowance ........................................................................................................... 267
n
, 359
n
official mailing lists ............................................................................................................................ 128
prohibition against use of campaign funds to pay for ...................................................................... 177
Congressional Member Organizations (CMOs) .............................................. 176-177, 336-337, 338-339
Congressional Record, extension of remarks in ..................................................................................... 326
Congressional Research Service ............................................................................................................ 340
Congressional Staff Organizations (CSOs) ................................................................................... 336, 337
Congressional websites .......................................................................................................................... 178
Conspiracy ................................................................................................................................ 275-276, 282
Constituents
assisting supporters ..................................................................................................................... 308-309
casework for ................................................................................................................................. 299-322
events with constituent organizations ........................................................................................... 49-50
guidelines for communications on constituent matters ............................................................ 356-358
off-the-record
(ex parte)
communications with .......................................................................... 300-302
visiting .......................................................................................................................................... 159-160
Consultants ...................................................................................................................................... 293-294
financial disclosure by ................................................................................................................. 296-297
gifts acceptable for ....................................................................................................................... 295-296
political consulting .................................................................................................................... 218, 233
n
prohibitions against compensation ............................................................................................. 217-218
requirements for disclosure ............................................................................................................... 260
Contacting other governments ....................................................................................................... 312-313
Contracting with federal government ............................................................................................ 200-202
Contracts
Committee on House Administration Special Subcommittee on Contracts ....................................... 5
publishing contracts .................................................................................................................... 224-228
Contributions
for casework ................................................................................................................................. 314-316
definition of .................................................................................................................................. 138-139
to legal expense funds and pro bono legal services ....................................................................... 63-65
to multicandidate political committees ............................................................................................. 140
for official activities (
see
Unofficial office accounts)
political (
see
Campaign contributions)
“soft money” ........................................................................................................................................ 145
Index
417
travel expenses ................................................................................................................................... 139
Conventions .......................................................................................................................................... 77-79
Conviction ............................................................................................................................................. 17-19
Cooling-off period .................................................................................................................................... 241
Copyright royalties .......................................................................................................................... 224-228
Corporations
compensation for serving as officer or member of board of ............................................. 222-223, 386
n
outside earned income from close ............................................................................... 231, 232, 367-369
quasi-municipal .................................................................................................................................. 57
n
Correspondence.
see
Communications
Court actions
general employment and compensation provisions ................................................................... 281-282
against salary kickbacks ............................................................................................................. 275-276
Crop insurance agreements ................................................................................................................. 201
n
CSOs.
see
Congressional Staff Organizations
Cultural exchange
Mutual Educational and Cultural Exchange Act (MECEA) 57, 58, 108-109, 110-111, 120, 259-260,392
travel paid for by foreign governments ...................................................................... 118-111, 120, 392
D
“Dear Colleague” letters ......................................................................................................................... 333
Deceptive Mailings Prevention Act of 1990 (P.L. 101-524) ................................................................ 373
n
Decorations from foreign governments .............................................................................. 57-58, 389-393
definition of ......................................................................................................................................... 390
regulations for acceptance of ............................................................................................ 57-59, 389-394
reports and disclosure of ......................................................................................................... 58-59, 393
Deferred compensation plans ......................................................................................................... 261, 370
Delegations ............................................... 336
n
.
see also
Congressional Member Organizations (CMOs)
Democratic Congressional Campaign Committee , contributions to ................................................... 140
Dependents.
see also
Family members
financial disclosure regarding ..................................................................................................... 253-254
Detailees ............................................................................................................................ 284-293, 292-293
definition of ......................................................................................................................................... 286
uniformed officers ............................................................................................................................. 293
n
Directors’ fees
disclosure of ......................................................................................................................................... 260
payments to charity in lieu of .......................................................................................................... 222
n
prohibition against ............................................................................................................ 222-223, 386
n
Disabilities, individuals with ......................................................................................................... 268, 270
Disclosure
confidential ........................................................................................................................... 263, 296-297
financial (
see
Financial disclosure)
of gifts ................................................................................................................................ 84-85, 392-393
post-travel .............................................................................................................................. 90, 104-105
of travel ................................................ 87, 88, 89-90, 102-103, 104, 106, 107, 108, 110, 111, 112, 113
Discrimination
House rules against ..................................................................................................................... 268-269
staff rights and duties ................................................................................................................. 268-271
Donations.
see also
Contributions; Gifts
to a legal expense fund ..................................................................................................................... 63-64
use of campaign funds for charity ...................................................................................................... 162
Dual federal government employment .................................................................................................. 203
Dues .............................................................................................................................................. 74-75, 172
418 HOUSE ETHICS MANUAL
Duties commensurate with compensation ............................................................................................ 140
E
E-mail ....................................................................................................................................... 128-129, 176
Earned income .......................................................................... 212, 254.
see also
Outside earned income
definition of ......................................................................................................................................... 231
limitations on ...................................................................................................................................... 213
requirements for financial disclosure of ............................................................................................ 254
Education savings accounts: financial disclosure of ............................................................................. 255
Educational events ........................................................................................................................ 41, 48-49
travel paid for by state and public universities ................................................................................. 108
trips sponsored by institutions of higher education .............................................................. 96-97, 108
Educational or cultural exchange
Mutual Educational and Cultural Exchange Act (MECEA) ......... 57, 58, 108, 110-111, 120, 259-260
travel paid for by foreign governments .............................................................................. 110-111, 120
Educational scholarships ................................................................................................................. 59, 392
EIGA.
see
Ethics in Government Act of 1978
Elected officers
cooling-off period for ........................................................................................................................... 241
post-employment restrictions ............................................................................................................ 241
Elections
federal ................................................................................................................................................ 139
n
House leadership ................................................................................................................................ 161
internet activities for influencing .................................................................................................... 139
n
Elective office: candidacy of House employees for ......................................................................... 142-143
Electronic communications .................................................................. 130.
see also
Telecommunications
Embezzlement of government funds ..................................................................................................... 281
Emoluments Clause ........................................................................................................................ 206
,
287
Employee benefit or welfare plans ........................................................................................................ 261
Employee Polygraph Protection Act of 1988 ......................................................................................... 270
Employee salaries ................................................................................................................................... 277
Employees.
see also
Staff
campaign work by ........................................................................................................................ 137-142
candidacy for elective office ......................................................................................................... 142-143
cooling-off period for .................................................................................................................... 241-242
definition of ............................................................................................................................... 285, 404
n
events in honor of Members, officers, or employees ...................................................................... 76-79
gift rule applicability to ........................................................................................................................ 33
loans to ......................................................................................................................................... 381-384
negotiating for future employment ............................................................................................. 208-211
“own time” .................................................................................................................................... 136-137
part-time ....................................................................................................................................... 276-277
post-employment restrictions ............................................................................................................ 242
prohibition against making contributions to one’s employing Member ................................... 137-140
prohibition against representing others before federal agencies .................................................... 141
requirements for disclosure of positions ........................................................................................... 260
restrictions on official activities of ..................................................................................................... 208
shared ........................................................................................................................................... 276-277
temporary ............................................................................................................................................ 277
Employment
“competitive service” positions in federal government .............................................................. 316-318
court actions ................................................................................................................................. 281-282
general provisions for .................................................................................................................. 276-282
Index
419
illegal hiring and firing practices ............................................................................................... 273-276
outside (
see
Outside employment)
post-employment benefits .................................................................................................................... 61
post-employment restrictions ..................................................................................................... 240-244
providing recommendations for .................................................................................................. 316-322
by spouses of Members and staff ................................................................................................ 244-246
Standards Committee actions ..................................................................................................... 279-280
Entertainment
as gift ..................................................................................................................................................... 45
paying market value for tickets to sporting events and shows .................................................... 73-74
Envelopes
laws and rules on campaign letterhead ..................................................................................... 179-181
Equipment, House .................................................................................................................................. 126
Ethics
annual training requirement ............................................................................................................. 283
general standards ............................................................................................................................ 1, 2-3
violations of ethical standards ............................................................................................................ 3-4
Ethics in Government Act of 1978 (EIGA) ............................................................ 248, 254, 258
,
265, 373
Ethics Reform Act of 1989 (Pub. L. 101-194) .............................................................. 7, 21, 27, 240, 365
n
ban on honoraria ......................................................................................................................... 189, 190
general employment and compensation provisions .......................................................................... 278
and official travel ......................................................................................................................... 330-331
statutory underpinning to gift rule ..................................................................................................... 25
Ethics Reform Task Force ...................................................................................................................... 6, 7
Events
accompanying individuals ............................................................................................................... 41-50
attendance at (including meals) ..................................................................................................... 41-52
attendance at receptions ................................................................................................................. 50-52
campaign or political events ..................................................................................................... 41, 47-48
charity events
“free attendance” for purposes of ................................................................................................ 45-46
restrictions on attendance at ...................................................................................................... 44-47
source of invitations for ............................................................................................................... 46-47
charity fundraising events ........................................................................................................ 41, 44-45
with constituent organizations ....................................................................................................... 49-50
educational ................................................................................................................................. 41, 48-49
free attendance for accompanying individuals .............................................................................. 43-44
gifts of food and beverages for ............................................................................................................. 38
in honor of Members, officers, or employees ............................................................................ 72, 76-79
for House leadership elections ........................................................................................................... 161
media-related ........................................................................................................................................ 47
multiple sponsors for .......................................................................................................................... 46
n
political conventions ........................................................................................................................ 77-78
“reception food” ..................................................................................................................................... 51
requirements for accepting invitations to ........................................................................................... 41
source of funding for .................................................................................................................... 399-400
sponsored by constituent organizations, regularly scheduled ........................................................... 41
sponsored by House offices .................................................................................................... 38, 341-344
sponsored by political organizations .............................................................................................. 47-48
sponsored by private entities that retain or employ lobbyists ............................................. 31, 48, 400
sponsors of ....................................................................................................................................... 42, 46
transportation expenses for ............................................................................................................... 399
widely attended ..................................................................................................................... 41-44, 45-47
420 HOUSE ETHICS MANUAL
“free attendance” for purposes of ................................................................................................ 45-46
requirements for accepting offers of free attendance at ................................................................. 41
source of invitations for ............................................................................................................... 46-47
Ex parte
(off-the-record) communications ...................................................................................... 300-302
to administrative agencies .......................................................................................................... 356-358
Committee on Standards of Official Conduct Advisory Opinion No. 1 .................................... 356-358
with courts ........................................................................................................................................... 311
proscription against ..................................................................................................................... 301-302
Expulsion from the House of Representatives .................................................................................. 11, 12
Extension of Remarks ............................................................................................................................ 326
F
Facsimile of official stationery ....................................................................................................... 146, 373
Facsimile rule .................................................................................................................................. 179-180
Fact-finding trips ................................................................................................................................ 90, 99
of Members and staff leaving office ................................................................................................... 103
travel expenses under FGDA ...................................................................................................... 109-110
Fair Labor Standards Act of 1938 (FLSA) .................................................................................... 270, 271
False claims ............................................................................................................................ 126
n
, 331-332
False disclosure statements ............................................................................................................. 3
n,
265
Family and Medical Leave Act of 1993 ................................................................................................. 270
Family business exemption ............................................................................................................. 229-230
Family members
accompanying relatives ............................................................................................................... 101-103
definition of ....................................................................................................................................... 119
n
disclosure of assets of spouses and dependent children ................................................................... 253
donations from relatives ........................................................................................................... 64
n,
394
n
employment considerations for spouses of Members and staff ................................................. 244-246
gift rule applicability to ................................................................................................................... 33-34
gifts from fiancé or fiancée ................................................................................................................. 40
n
gifts from relatives .......................................................................................................... 28, 40
n,
70, 259
nepotism ....................................................................................................................................... 272-273
relatives ..................................................................................................................................... 101
n,
272
“spouse only” travel ..................................................................................................................... 102-103
use of campaign funds for purchase from .................................................................................. 170-171
as volunteers ................................................................................................................................ 288-290
Family-owned businesses .............................................................................................. 229-230, 289, 369
n
FEC.
see
Federal Election Commission
FECA.
see
Federal Election Campaign Act
Federal Acquisition Regulations ............................................................................................................ 302
Federal criminal code, regarding campaign activity ...................................................................... 183-184
Federal Election Campaign Act (FECA) ................................................ 121, 122, 138,144,153-154 253
n
Federal Election Commission (FEC)
Advisory Opinions ............................................................................................................................ 155
n
definition of office account .................................................................................................................. 362
personal use regulations ............................................................................................................. 171-173
regulations for use of campaign funds for legal expenses ........................................................ 157, 397
requirements for registration as candidate .................................................................................... 253
n
website ............................................................................................................................................... 155
n
Federal government
contracting with ........................................................................................................................... 200-202
dual employment by ........................................................................................................................... 203
recommendations for positions in ............................................................................................... 316-319
Index
421
soliciting contributions from employees of ........................................................................................ 144
things paid for by ............................................................................................................................. 55-57
travel paid for by ................................................................................................................................. 108
Federal government agencies.
see also
Government agencies
communications with .................................................................................................... 306-307, 356-358
in-kind support from ................................................................................................................ 55-56, 342
representing others before ................................................................................................................. 141
Federal Home Loan Banks ....................................................................................................................... 56
Federal Service Labor-Management Relations Act .............................................................................. 270
Fellows ............................................................................................................................... 284-293, 402-406
acceptance of services from ................................................................................................. 285, 405-406
Committee on Standards of Official Conduct Letter of June 29, 1990 .................................... 402-406
definition of ................................................................................................................................. 285, 404
foreign nationals serving as ........................................................................................................ 287-288
gift rule applicability to ......................................................................................................... 33, 286-287
restrictions on .............................................................................................................................. 286-287
FGDA.
see
Foreign Gifts and Decorations Act
Fiancés and fiancées
gifts from ............................................................................................................................................... 69
travel with ......................................................................................................................................... 101n
Fiction, compensation for writing .......................................................................................................... 192
Fiduciary relationships ................................................................................................... 213-222, 385, 386
definition of ........................................................................................................................ 215-216, 385
n
prohibitions against ............................................................................................................. 214-222, 385
Files, internal office ................................................................................................................................ 134
Financial compensation.
see also
Compensation
advance payment of royalties ..................................................................................................... 224-225
benefits from ownership or other investments of equity (
see
Unearned income)
board service benefits .................................................................................................................. 222-223
Financial disclosure ......................................................................................................................... 247-265
annual financial disclosure requirement (House Rule 26) .................................................... 6, 247-248
certification of no financial interest in fiscal legislation ........................................................... 238-239
by consultants ............................................................................................................................... 296-297
of gifts ........................................................................................................................................... 258-259
of income ....................................................................................................................................... 254-257
of liabilities .......................................................................................................................................... 258
policies underlying ....................................................................................................................... 249-252
of positions ................................................................................................................................... 260-261
requirements for .......................................................................................................................... 252-263
spouse and dependent information ............................................................................................. 253-254
statutes and rules governing ...................................................................................................... 248-249
of transactions .............................................................................................................................. 257-258
of travel ........................................................ 102-103, 105, 106, 107, 108, 110, 111, 112, 113, 259-260
Financial Disclosure Statements .............................................................................................. 65, 247-265
amendments .................................................................................................................. 263-264, 378-380
commemorative items on ...................................................................................................... 54, 258-259
committee review ......................................................................................................................... 263-264
deadline for filing ................................................................................................................. 252-253, 263
failure to file or false .................................................................................................................... 3
n,
265
filing deadlines ..................................................................................................................... 252-253, 263
instruction booklets for ........................................................................................................ 247-248, 252
principal assistants for filing ............................................................................................................. 252
422 HOUSE ETHICS MANUAL
public access to reports ....................................................................................................................... 264
retention of reports ............................................................................................................................. 264
termination ......................................................................................................................................... 263
travel resulting from outside business, employment, or other activities on ........................... 106, 259
who must file ................................................................................................................................ 252-253
Financial interests
category of value of ........................................................................................................................... 255
n
personal ............................................................................................................................................... 314
Fine art gifts ............................................................................................................................................. 75
Firing, illegal .................................................................................................................................... 273-276
Fiscal legislation .............................................................................................................................. 238-239
529 plans: financial disclosure of ........................................................................................................... 255
Floor coverage ......................................................................................................................................... 128
FLSA.
see
Fair Labor Standards Act of 1938
Focus groups ........................................................................................................................................... 191
Food and beverages
gifts .................................................................................................................................................. 28, 45
restrictions and limitations on .................................................................................................... 37-38
while on official travel .................................................................................................................... 114
for House office-sponsored events ................................................................................ 159-160, 341-344
incident to visits to business sites .................................................................................................. 52-53
as integral part of training in the interest of the House .................................................................... 67
of nominal value ............................................................................................................................... 50-52
from outside business and other activities ............................................................................. 60-61, 197
“reception food” ................................................................................................................................ 50-52
Food expenses during travel ............................................................................................ 100-101, 114, 399
Foreign agents
definition of ...................................................................................................................................... 34-35
gifts from ....................................................................................................................................... 31, 395
travel sponsored by private entities that retain or employ ........................................... 92-93, 400-401
Foreign dignitaries: gifts for .................................................................................................................. 176
Foreign educational or cultural exchange
gifts of more than minimal intrinsic received during ................................................... 58-59, 391, 393
Mutual Educational and Cultural Exchange Act (MECEA) .......... 57-58, 108, 110-111, 120, 259-260
travel paid for by foreign governments .............................................................................. 110-111, 120
Foreign Gifts and Decorations Act (FGDA) ........................................................ 57-59, 108-110, 389-393
acceptance of gifts under .................................................................................................. 57-59, 389-393
minimal value for purposes of disclosure under ............................................................................. 258
n
travel paid by foreign governments under ..........................................................108-110, 120, 389-393
Foreign governments
contacting ..................................................................................................................................... 312-313
definition of, in FGDA ............................................................................................................. 57-58, 390
gifts from .................................................................................................................................... 57-69, 76
regulations for acceptance of decorations and gifts from ...................................................... 389-393
limitations on acceptance by family members ................................................................................. 34
private correspondence with ............................................................................................................ 312
n
prohibition against receiving compensation from ..................................................................... 205-206
regulations for acceptance of decorations and gifts from .......................................................... 389-393
travel sponsored by ....................................................................................................... 108-111, 259-260
disclosure of ..................................................................................................................................... 260
under FGDA ............................................................................................................................. 108-110
under MECEA ........................................................................................................... 110-111, 259-260
Foreign nationals: interns and fellows ........................................................................................... 287-288
Index
423
Foreign principals: agents of
definition of ...................................................................................................................................... 34-35
expressly prohibited gifts from ............................................................................................... 34n, 72-73
Foreign travel
gifts received during ........................................................................................................................... 392
in-country ............................................................................................................................................ 109
official travel to foreign countries ...................................................................................................... 113
Former employees: post employment restrictions ......................................................................... 240-244
401(k) plans: financial disclosure of ....................................................................................................... 255
Franking ........................................................................................................................................... 332-333
Committee on Standards of Official Conduct Advisory Opinion No. 6 .................................... 375-377
House rules pertaining to ............................................................................................................... 6, 320
for letters of recommendation ..................................................................................................... 320-321
Franking Regulations ............................................................................................................................. 129
Fraternal entities: positions held in ...................................................................................................... 260
Fraud ............................................................................................................................................... 274, 281
conspiring to defraud the United States ....................................................................... 15, 17, 282, 332
false claims and ........................................................................................................................... 331-332
Free attendance ............................................................................................................................. 41, 45-46
Free benefits ........................................................................................................................................... 343
Free time .......................................................................................................................................... 136-137
Frequent flier miles earned through official travel ............................................................... 115-116, 330
Friend of the court
(amicus curiae)
briefs ............................................................................... 65, 311, 395
Friendship, personal
donations on basis of .......................................................................................................................... 64
n
gifts on basis of ........................................................................................................................ 39-41, 107
travel provided on basis of .......................................................................................... 107, 119-120, 259
Funding sources ............................................................................................................................... 400-401
Fundraisers .................................................................................................................................... 41, 83-84
campaign fundraisers .............................................................................................................. 47-48, 182
charity fundraisers .................................................................................................................... 41, 44-47
sponsored by political organizations .............................................................................................. 47-48
Fundraising
campaign fund solicitations ........................................................................................................ 373-374
private financing of official expenses ................................................................................................ 327
prohibition against making contributions to one’s employing Member ................................... 137-140
solicitation of funds
from or on behalf of outside organizations ............................................................................. 347-349
restrictions on .......................................................................................................................... 348-349
on behalf of victims of catastrophic injury or natural disaster .................................................. 348
n
Future employment: negotiating .................................................................................................... 208-211
Future employment agreements: financial disclosure of ..................................................................... 261
Futures transactions: financial disclosure of ................................................................................. 257-258
G
Gender discrimination ..................................................................................................................... 268-271
General ethical standards ................................................................................................................... 1, 2-3
Gift disclosure ....................................................................................................... 84-85, 258-259, 392-393
Gift rule (see also “Gifts”) ............................................................................................................... 25, 30-38
applicability to compensation and things of value received from outside employers ............. 196-197
applicability to spouses, family members, and others .................................................................. 33-34
applicability to consultants ......................................................................................................... 295-296
history of ........................................................................................................................................... 27-30
424 HOUSE ETHICS MANUAL
prohibition on solicitation from lobbyists ........................................................................................ 349
n
provisions applicable to campaign activity ................................................................................ 182-183
provisions applicable to loans to Members, officers, and employees ........................................ 381-384
provisions relating to travel ................................................................................................................. 25
statutory underpinning ........................................................................................................................ 25
violations of ..................................................................................................................................... 15, 16
waivers ................................................................... 38, 41, 45, 47, 48, 49, 50, 52, 70-71, 101
n,
102-103
who is subject to ............................................................................................................................... 32-33
Gifts ...................................................................................................................................................... 23-85
acceptable ........................................................................................................................ 30-31, 38, 39-72
basic concerns regarding ............................................................................................................. 23-24
for consultants ......................................................................................................................... 295-296
annual limitations on ....................................................................................... 27-28, 28
n,
29, 37, 100
n
artwork .................................................................................................................................................. 75
attendance at receptions ................................................................................................................. 50-52
awards and prizes ................................................................................................................................. 69
baby gifts .......................................................................................................................................... 70-71
on basis of personal friendship ................................................................................................. 39-41, 63
benefits from outside business and other activities ...................................................................... 59-61
books, periodicals, and other informational materials .................................................................. 54-55
buydowns .......................................................................................................................................... 35-36
for casework ................................................................................................................................. 314-316
commemorative items ...................................................................................................................... 53-54
decorative items .................................................................................................................................... 80
definition of ........................................................................................ 31-32, 80, 196-197, 382, 383, 390
disclosure of gifts on Financial Disclosure Statement ................................... 84-85, 258-259, 392-393
from fiancé or fiancée ......................................................................................................................... 40
n
of fine art ............................................................................................................................................. 75
n
of food and beverages ............................................................................................................................ 28
for events sponsored by House offices ............................................................................................. 38
food or refreshments of nominal value ....................................................................................... 50-52
to House office for staff ................................................................................................................ 37-38
small group and one-on-one meals .................................................................................................. 31
while on official travel .................................................................................................................... 114
from federal, state, or local government ........................................................................................ 55-57
from foreign agents and private entities that retain or employ such individuals ............................ 31
for foreign dignitaries ......................................................................................................................... 176
from foreign governments ....................................................................................57-59, 76, 84, 389-393
from friend .................................................................................................................................. 39-41, 63
from government source (federal, state, or local) ........................................................................... 55-57
general provisions for ...................................................................................................................... 30-31
gift certificates ...................................................................................................................................... 34
historical objects ................................................................................................................................. 75
n
“home state” products ...................................................................................................................... 65-66
honorary degrees ............................................................................................................................. 66-67
in-kind donations to legal expense fund.......................................................................................... 63-64
from international organizations .................................................................................................... 57-59
legal expense fund donations .......................................................................................................... 63-64
loans .................................................................................................................................................. 68-69
from lobbyists ......................................................................................................................... 31, 381-384
acceptance of ................................................................................................................................ 28-29
expressly prohibited .................................................................................................................... 71-73
restrictions on .................................................................................................................. 24, 28, 29-30
Index
425
local travel expenses ............................................................................................................................. 99
medical treatment ................................................................................................................................ 59
minimal value ................................................................................................................. 58, 66, 258, 391
nominal value ........................................................................................................................................ 53
officially-connected travel paid for by private sources ................................................................ 87-105
from other Members, officers, or employees ....................................................................................... 70
paying market value for .................................................................................................. 73-74, 382, 383
personal friendship ..................................................................................................................... 39-41, 63
perishable food ................................................................................................................................. 37-38
perishable items .................................................................................................................................... 80
of personal hospitality ....................................................................................................... 28, 61-63, 259
post-employment benefits .................................................................................................................. 62
n
public service awards (nonmonetary) ............................................................................................. 66-67
recipient of ........................................................................................................................................ 36-38
recreational activities .............................................................................................................. 31, 99-100
from registered lobbyists, foreign agents, and entities that retain or employ them ........................ 31
regulations for acceptance of gifts from foreign governments ................................................... 389-393
from relatives .................................................................................................................. 28, 40
n,
69, 259
repeated gifts from single donor .................................................................................................... 37, 38
reports and disclosure of gifts from foreign governments .................................................... 59, 392-393
return to donor of ............................................................................................................................. 74-75
scholarships ........................................................................................................................................... 59
severance packages .......................................................................................................................... 61-62
simultaneous ......................................................................................................................................... 36
small group and one-on-one meals ...................................................................................................... 31
solicitation of .................................................................................................................................... 25-26
sources of ............................................................................................................................................... 36
souvenirs or marks of courtesy from foreign government .................................................................. 58
statutory prohibitions ...................................................................................................................... 25-27
tickets to (or free attendance at) sporting events and shows ...................................................... 31, 74
training in the interest of the House ................................................................................................... 67
travel
on basis of personal friendship .............................................................................................. 107, 119
gift rule provisions relating to ......................................................................................................... 25
travel expenses .............................................................................................................................. 99-101
travel expenses from foreign governments under FGDA .......................................................... 108-110
travel expenses from foreign governments under MECEA ...................................................... 110-111
travel sponsored by private entities ............................................................................................... 92-95
travel sponsored by private entities that retain or employ lobbyists or foreign agents ............. 92-93
handling unacceptable gifts ................................................................................................................. 73
of unusual nature ................................................................................................................................. 75
use of campaign funds for .................................................................................................................. 162
valuation of ........................................................................................................................................... 36
valued at less than $50 .................................................................................................................... 34-35
wedding gifts .................................................................................................................................... 70-71
widely available opportunities and benefits .................................................................................. 67-68
Golf .................................................................................................................................. 31, 32, 44, 47, 182
Golf tournaments ........................................................................................................................ 44, 47, 182
Government agencies
communications with ................................................................................................................... 299-311
ex parte,
to administrative agencies ....................................................................... 300-302, 356-358
judicially imposed limits on .................................................................................................... 303-305
principles to be observed ................................................................................................................ 307
426 HOUSE ETHICS MANUAL
requests for background information or status reports from ...................................................... 302
federal
prohibition against representing others before ............................................................................ 141
standards for communications with ....................................................................................... 305-308
fellowships in .................................................................................................................................... 317
n
formal proceedings of .......................................................................................................................... 301
gifts from .......................................................................................................................................... 55-57
in-kind support from ........................................................................................................................... 342
prohibition against representing others before ................................................................................ 141
quasi-municipal corporations as ........................................................................................................ 56
n
rules of ............................................................................................................................................... 301
n
Government agency proceedings
requests for background information or status reports from .......................................................... 302
Government agency rules ..................................................................................................................... 301
n
Government documents
Financial Disclosure Statements (
see
Financial Disclosure Statements)
gift disclosure statements .................................................................................................................. 393
gift reports .................................................................................................................................... 392-393
Government Printing and Binding Regulations
(Joint Committee on Printing) .................... 325-326
Legal Expense Fund reports .............................................................................................................. 397
public access to reports ....................................................................................................................... 264
public inspection of reports ......................................................................................................... 393-394
Government employment
Code of Ethics for Government Service .......................................................................................... 20-21
letters of recommendation for ..................................................................................................... 316-322
post-employment restrictions ..................................................................................................... 240-244
Government in the Sunshine Act ................................................................................................... 300-301
Government Printing and Binding Regulations
(Joint Committee on Printing) ........................ 325-326
Government Printing Office (GPO) ....................................................................................................... 293
Government procurement and grants ............................................................................................ 310-311
Government rate for official travel ........................................................................................................ 115
Government retirement programs: financial disclosure of ................................................................. 255
Government-sponsored travel ..................................................................................... 108.
see also
Travel
Governments.
see also
Foreign governments; State or local governments
contacting ..................................................................................................................................... 312-313
Grants ............................................................................................................................................... 310-311
Gratuities ..................................................................................................................... 14, 15, 17, 25, 79-83
Great Seal ................................................................................................................................................ 180
Gross income ......................................................................................................................................... 370
n
Guests at official events .................................................................................................................. 342-343
H
Harassment, sexual ......................................................................................................................... 268-269
Hatch Act.................................................................................................................................................. 135
Higher education
travel paid for by state and private universities ............................................................................ 108
n
trips sponsored by institutions of ................................................................................................... 96-97
Hiring, illegal ................................................................................................................................... 273-276
Historical objects .................................................................................................................................... 75
n
HLOGA.
see
Honest Leadership and Open Government Act of 2007
“Home state” products ......................................................................................................................... 65-66
Honest Leadership and Open Government Act of 2007 (HLOGA) ............................................ 208
n,
241
Honoraria ......................................................................................................................................... 189-196
Index
427
ban on receipt of ............................................................................................................. 7, 189-192, 365
n
definition of ....................................................................................................... 189, 190
n,
191-192, 371
financial disclosure of ......................................................................................................................... 254
limitations on ...................................................................................................................................... 213
payments to charities in lieu of .................................................................................. 194-196, 254, 371
Senate rules prohibiting receipt of .................................................................................................. 190
n
spousal ................................................................................................................................................. 254
Honorary degrees ................................................................................................................................. 66-67
Honorary memberships ....................................................................................................................... 74-75
Honorary positions ................................................................................................................................. 260
Hospitality, personal ............................................................................................................. 28, 61-63, 259
House equipment and supplies .............................................................................................................. 126
House leadership elections ..................................................................................................................... 161
House of Representatives
conduct reflecting creditably on ...................................................................................................... 12-16
expulsion from ................................................................................................................................. 11, 12
gifts from other Members, officers, or employees of ........................................................................... 70
leadership of ...................................................................................................................................... 242
n
prohibition against use of one’s position with for personal gain .............................................. 186-188
training in the interest of ..................................................................................................................... 67
House office address ............................................................................................................................... 148
House Office Building Commission ....................................................................................................... 325
House office computers ........................................................................................................................... 176
House office-sponsored events
applicability of House Rule 24 to ................................................................................................ 341-344
charging registration fees to participants .................................................................................. 343-344
meeting space for .............................................................................................................................. 343
n
use of benefits that private organizations routinely offer without charge by ................................ 343
House offices, rooms, or buildings
campaign activity in official congressional offices ............................................................... 16, 123-127
campaign contributions in House offices .................................................................................... 149-150
limited campaign-related activities that may take place in Congressional offices ................. 132-134
Member-to-Member solicitation in House buildings ................................................................. 145-146
as official resources ............................................................................................................................. 127
regulations governing use of House facilities ................................................................................... 325
soliciting contributions in ............................................................................................................ 144-146
House Rule 23.
see
Code of Official Conduct
House Rule 24 ...................................................................................................... 6, 326, 329-330, 341-344
House Rule 27 ....................................................................................................................................... 208
n
House rules.
see also
specific rules
against discrimination ................................................................................................................. 268-269
ethics rules ........................................................................................................................................... 2-3
interpretation of ............................................................................................................................... 16-17
numbering of ......................................................................................................................................... 2
n
spirit and letter of ............................................................................................................................ 16-17
I
Illegal gratuities .................................................................................................................... 14, 79-83, 208
Illegal hiring and firing practices ................................................................................................... 273-276
Immediate family members ................................................................ 288-290.
see also
Family members
In-kind services ................................................................................................................................ 361-363
Income
earned income ..................................................................... 212, 254 (
see also
Outside earned income)
428 HOUSE ETHICS MANUAL
definition of ..................................................................................................................................... 231
financial disclosure of ..................................................................................................................... 254
limitations on .................................................................................................................................. 213
gross income ...................................................................................................................................... 370
n
outside employment and income ................................................................................................ 185-246
from real property ........................................................................................................................ 254-257
senior staff rate ................................................................................................................................... 212
unearned income .................................................................................................................. 212, 254-257
Indian tribes .............................................................................................................................................. 57
Individual retirement accounts (IRAs): financial disclosure of ........................................... 255, 256, 257
Informal advisors .................................................................................................................................... 290
Informal Member and staff organizations ..................................................................................... 337-338
Information technology services ............................................................................................................ 174
Informational materials, acceptance of .............................................................................................. 54-55
Inheritances .............................................................................................................................................. 72
Institutions of higher education
definition of ......................................................................................................................................... 93
n
trips sponsored by ............................................................................................................................ 96-97
Internal office files .................................................................................................................................. 128
International organizations.
see also
Foreign governments
gifts from ........................................................................................................................... 57-59, 389-393
Internet
congressional office websites .............................................................................................................. 178
influencing federal elections using .................................................................................................. 139
n
Member and committee websites ...................................................................................................... 131
Member campaign websites ....................................................................................................... 131, 178
Interns ............................................................................................................................... 284-293, 405-406
Committee on Standards of Official Conduct Letter of June 29, 1990 .................................... 402-406
definition of ............................................................................................................................... 285, 402
n
gift rule applicability to ........................................................................................................................ 33
paid ..................................................................................................................................... 276-277, 285
n
gift rule applicability to .................................................................................................................... 33
restrictions on .......................................................................................................................... 286-287
programs ....................................................................................................................... 286-288, 405-406
Investments
of equity (
see
Unearned income)
statutes and rules governing aspects of ..................................................................................... 248-249
Invitations.
see also
Events
acceptable .............................................................................................................................................. 41
to educational events ............................................................................................................................ 48
unsolicited ............................................................................................................................................. 45
to widely attended and charity events ........................................................................................... 46-47
IRAs.
see
individual retirement accounts
J
Joint Committee on Printing .......................................................................................................... 325-326
Justice, Department of ............................................................................................................ 281-282, 351
K
Keogh retirement plans ........................................................................................................................ 371
n
Kickbacks, salary .................................................................................................................... 274-276, 274
n
Index
429
L
Law practice ............................................................................................................................. 197-198, 262
buyout agreements ............................................................................................................................. 261
outside earned income from ........................................................................................................ 366-367
partnership distributions ....................................................................................................... 206
n,
210
n
as executor of an estate ...................................................................................................................... 219
pro bono services
acceptance of ..................................................................................................................................... 65
provided by Members or employees ........................................................................ 197-200, 217, 219
prohibition against use of one’s name by entities that provide covered services .................... 221-222
prohibition against receipt of compensation for ........................................................................ 214-222
representing others before federal agencies or in court cases involving federal government 198-200
Leadership elections ............................................................................................................................... 161
Leadership of the House of Representatives .............................................................................. 161, 242
n
Leadership PACs ........................................................................................................................ 118
n,
233
n
Leadership staff: former employees on .......................................................................................... 241-242
Leave of absence agreements ................................................................................................................. 261
Leave Without Pay (LWOP) status ....................................................................................................... 137
Legal Expense Fund Regulations ............................................................................................. 64, 394-396
Legal expenses ........................................................................................................................................ 157
contributions to ................................................................................................................................ 64-66
expressly prohibited lobbyist gifts .................................................................................................. 72-73
reports ................................................................................................................................................. 396
use of campaign funds for ..................................................................................... 66, 156-157, 172, 396
as personal representative or executor of the estate ........................................................................ 219
pro bono ............................................................................................................................................... 220
acceptable .......................................................................................................................................... 65
Legislation, fiscal (earmarks) .......................................................................................................... 238-239
Legislative briefings ................................................................................................................................. 49
Legislative offices: former officers or employees of .............................................................................. 242
Legislative Resource Center .................................................................................................................... 65
Letterhead
campaign ...................................................................................................................................... 179-181
Committee on Standards of Official Conduct Advisory Opinion No. 5 .................................... 372-374
letters of recommendation on ...................................................................................................... 320-321
Letters .............................................................................................................................................. 128-129
“Dear Colleague” letters ..................................................................................................................... 333
for House leadership elections ........................................................................................................... 161
not frankable in content .............................................................................................................. 160-161
Letters of recommendation
franking ............................................................................................................................................... 320
for government employment ....................................................................................................... 316-322
for military services or academies ..................................................................................................... 319
on official stationery .................................................................................................................... 320-321
for Postal Service ................................................................................................................................ 319
for private sector positions .......................................................................................................... 319-320
Letters of Reproval .............................................................................................................................. 11-12
Liabilities: financial disclosure of .......................................................................................................... 258
Lie detector tests ..................................................................................................................................... 270
Loans .................................................................................................................................................... 68-69
of artwork .............................................................................................................................................. 75
borrowing campaign funds .......................................................................................................... 167-168
commercial ................................................................................................................................... 382-383
430 HOUSE ETHICS MANUAL
financial disclosure of ......................................................................................................................... 256
gift rule provisions applicable to ................................................................................................. 381-384
from individuals or entities other than financial institutions .................................................. 383-384
Lobbying ........................................................................................................................................... 294-295
Lobbyists
acceptance of gifts from ................................................................................................................... 28-29
ban on accompaniment of during travel ......................................................................................... 95-97
gifts on basis of personal friendship from ...................................................................................... 39-40
involvement in planning or arranging trips ................................................................... 95-96, 400-401
registered lobbyists
definition of .......................................................................................................................... 34-35, 92
n
expressly prohibited gifts from ........................................................................................................ 72
restrictions on gifts from ..................................................................................................... 24, 28, 29-30
travel sponsored by private entities that retain or employ .......................................................... 92-93
Local government office ........................................................................................................................ 205
n
Local governments
contacting ..................................................................................................................................... 312-313
things paid for by .................................................................................................................................. 56
travel paid for by ................................................................................................................................. 108
Local meals .............................................................................................................................................. 259
Local political offices
campaigns for ...................................................................................................................................... 124
holding .......................................................................................................................................... 204-205
Local travel expenses ....................................................................................................................... 99, 398
Lodging.
see also
Travel
from outside business or employment activities ............................................................................... 197
Lodging expenses .............................................................................................................. 100-101, 399-400
Logan Act .............................................................................................................................................. 312
n
Lump sum payments ..................................................................................................... 140, 240
n,
283-284
LWOP status.
see
Leave Without Pay status
M
Mail allowance .......................................... 359
n
.
see also
Members’ Representational Allowance (MRA)
Mail fraud ........................................................................................................................................ 274, 281
Mailing lists ............................................................................................................................. 128, 352-353
Mailings
for House leadership elections ........................................................................................................... 161
not frankable in content .............................................................................................................. 160-161
Market value for gifts: paying ............................................................................................................ 73-75
Mass communications, unsolicited
definition of ......................................................................................................................................... 130
90-day ban on ............................................................................................................................... 129-131
McCain-Feingold.
see
Bipartisan Campaign Reform Act
Meal expenses .................................................................................................................. 159, 169-170, 172
Meals.
see also
Travel
attendance at events ........................................................................................................................ 41-50
at briefings or presentations ................................................................................................................ 49
buydowns ............................................................................................................................................... 35
delivery of food to House offices ........................................................................................................... 37
food or refreshments of nominal value ........................................................................................... 50-52
gifts of food and beverages ................................................................................................................... 28
gifts on basis of personal friendship .................................................................................................... 40
incident to visits to business sites ....................................................................................................... 52
Index
431
limitations on gifts ................................................................................................................................ 37
from lobbyists .................................................................................................................................. 28, 29
one-on-one ............................................................................................................................................. 31
per diem
rates for ................................................................................................................................ 101
provided to spouse at the same time and place as Member or staff ................................................. 34
sources of ............................................................................................................................................... 36
at Washington, D.C.-area lobbying or law firm offices ...................................................................... 52
MECEA.
see
Mutual Educational and Cultural Exchange Act
Medical practice ........................................................................................ 213-214, 216, 218-219, 387-388
Meeting space ....................................................................................................................................... 343
n
Meetings.
see
Conferences; Events
Member advisory groups ................................................................................................................. 339-340
Member campaign websites ........................................................................................................... 131, 178
Member/Officer and Employee Post-Travel Disclosure Forms ............................................................ 103
Member voting and other official activities
general requirement that Members vote on questions before the House ................................ 233-238
on matters of personal interest ................................................................................................... 234-238
Member websites .................................................................................................................................... 131
Members
annual outside earned income limitations for ................................................................. 228-232, 386
n
casework ....................................................................................................................................... 299-322
cooling-off period for ........................................................................................................................... 241
employment considerations for spouses of ................................................................................. 244-246
events in honor of a Member, officer, or employee ........................................................................ 76-79
informal Member and staff organizations .................................................................................. 337-338
loans to ......................................................................................................................................... 381-384
outside earned income limitations ............................................................................... 228-232, 385-388
outside employment of ................................................................................................................. 185-211
outside employment restrictions ................................................................................................ 213-228
post-employment restrictions ..................................................................................................... 240-241
private entities with shared goals .............................................................................................. 338-339
prohibition against use of one’s position for personal gain ....................................................... 186-188
Members-elect ......................................................................................................................................... 33
n
Members leaving office ........................................................................................................................... 103
Members’ Representational Allowance (MRA) ...................................................................... 275, 323-326
Committee on Standards of Official Conduct Advisory Opinion No. 2 .................................... 359-360
goods and services paid for with ........................................................................................................ 125
guidelines for ........................................................................................................................ 276, 359-360
penalties for improper use .......................................................................................................... 331-332
purpose of ............................................................................................................................................ 310
reimbursement from ........................................................................................................................... 324
requirements for certification and documents .................................................................................. 332
restrictions ................................................................................................................................... 323-324
Memberships, honorary ............................................................................................................................ 74
Military services or academies .............................................................................................................. 319
Minimum wage ....................................................................................................................................... 270
Minors ...................................................................................................................................................... 16
n
Misuse of funds ....................................................................................................................................... 124
Money market funds: financial disclosure of ........................................................................................ 256
Motor vehicle expenses .................................................................................................... 172, 173, 174-175
Moving expenses ..................................................................................................................................... 162
MRA.
see
Members’ Representational Allowance
Multicandidate political committees ..................................................................................................... 140
432 HOUSE ETHICS MANUAL
Multiple-day trips ..................................................................................................................................... 96
restrictions on length of ....................................................................................................... 89, 92-93, 94
rules for ................................................................................................................................................. 89
Mutual Educational and Cultural Exchange Act (MECEA) ............. 57, 58, 108, 110-111, 120, 259-260
N
National political conventions ............................................................................................................ 77-78
Negotiation for future employment ................................................................................................. 208-211
Nepotism .......................................................................................................................................... 272-273
News releases ................................................................................................................................... 128-129
Newsletters ............................................................................................................................................. 130
Non-constituents: assisting ............................................................................................................. 309-310
Nongovernmental parties: intervening with ......................................................................................... 313
Nongovernmental positions: financial disclosure of ...................................................................... 260-261
Nonpartisan voter registration materials ............................................................................................. 135
Notification requirements for negotiation for future employment ............................................... 210-211
O
Obstruction of justice .......................................................................................................................... 15, 17
Occupational Safety and Health Act of 1970 ........................................................................................ 270
Off-the-record
(ex parte)
communications. See also ex parte ......................................... 300-302, 356-358
to administrative agencies .......................................................................................................... 356-358
Committee on Standards of Official Conduct Advisory Opinion No. 1 .................................... 356-358
with courts ........................................................................................................................................... 311
proscription against ..................................................................................................................... 301-302
Office accounts, unofficial ...................................................................................... 326-330, 361-362, 375
Office of Compliance ....................................................................................................................... 270, 271
equal pay regulations ......................................................................................................................... 271
guide to Congressional Accountability Act ....................................................................................... 270
Office resources: improper use of ........................................................................................................... 197
Officer positions: disclosure of ............................................................................................................... 260
Officers
compensation for service as officer or board member ............................................................... 222-223
events in honor of a Member, officer, or employee ........................................................................ 76-78
loans to ......................................................................................................................................... 381-384
post employment restrictions ....................................................................................................... 240-244
regulations for acceptance of decorations and gifts ................................................................... 389-394
Official activity
activities that may be either “official” or “political” .................................................................. 178-179
campaign contributions linked to ...................................................................................................... 150
cell phones or BlackBerrys used for official House business, use of campaign funds for ........ 175-176
connection between trips and official duties ................................................................... 90-91, 397-398
frequent flier miles acquired during ................................................................................................. 330
in-kind services, accepting for official purposes ........................................................................ 361-363
on matters of personal interest ................................................................................................... 233-238
prohibition against linking to partisan or political considerations .......................................... 150-151
prohibition against private subsidy of ........................................................................................ 113-115
requirement that Members vote on questions before the House .............................................. 233-238
soliciting contributions in the Federal buildings or in House offices ........................................ 144-146
use of campaign funds or resources for official House purposes .............................................. 173-179
voting on House floor ................................................................................................................... 233-238
Official allowances ...............................323-333.
see also
Members’ Representational Allowance (MRA)
impermissible uses ............................................................................................................................. 325
Index
433
items for which reimbursement is permissible ................................................................................. 325
official expenses and mail allowances ............................................................................................. 359
n
for official travel ........................................................................................................................... 330-331
Official duties .......................................................................................................................................... 281
connection between trips and .......................................................................................... 90-91, 398-399
definition of .................................................................................................................................. 281-282
duties commensurate with compensation ......................................................................................... 140
proper performance of congressional duties .............................................................................. 206-207
of staff .................................................................................................................................................. 279
use of campaign funds to pay for compensation for performance of official duties ........................ 178
Official events
appearance of private organizations and individuals as guests at .......................................... 342-343
determination of ................................................................................................................... 327-328, 335
use of campaign funds to cover expenses in connection with .......................................................... 176
Official expenses
definition of ......................................................................................................................................... 376
private financing of ............................................................................................................................. 327
use of campaign funds to pay for ................................................................................................ 375-377
Official Expenses Allowance .................... 359
n
.
see also
Members’ Representational Allowance (MRA)
Official funds
ban on communications paid for with ........................................................................................ 130-131
for flights on private aircraft prohibited ................................................................................... 118-119
rules of proper use of .......................................................................................................................... 126
Official Mail Allowance ............................ 359
n
.
see also
Members’ Representational Allowance (MRA)
Official mailing lists ............................................................................................................................... 128
Official congressional organizations ............................................................................................... 335-353
Official resources .................................................................................................................................... 123
use for campaign or political purposes generally prohibited .................................................... 123-135
House buildings, rooms, and offices .................................................................................................. 127
laws and rules on proper use of .................................................................................................. 125-132
and soliciting contributions: Member-to-Member ............................................................................ 146
Official sponsorship: expressions or symbols of ............................................................................. 346-347
Official stationery
campaign letterhead .................................................................................................................... 179-181
Committee on Standards of Official Conduct Advisory Opinion No. 5 .................................... 372-374
facsimiles of .................................................................................................................. 146, 179-180, 373
letterhead ..................................................................................................................................... 320-321
letters of recommendation on ...................................................................................................... 320-321
Official support organizations ......................................................................................................... 336-338
Official travel ................................................................................................................................... 112-116
allowances for ............................................................................................................................... 330-331
campaign funds used for
automobile expenses ................................................................................................................ 174-175
travel expenses ................................................................................................................................ 176
to foreign countries ............................................................................................................................. 113
frequent flier miles earned through ........................................................................................... 115-116
government rate for ............................................................................................................................ 115
motor vehicles used for ................................................................................................................ 174-175
private subsidy of prohibited ...................................................................................................... 113-115
privately-sponsored ........................................................................................................ 88-105, 400-401
reimbursement from official allowances for ...................................................................................... 331
One-day event trips ....................................................................................................................... 89, 92-93
Oral recommendations ............................................................ 316
n
.
see also
Letters of recommendation
434 HOUSE ETHICS MANUAL
Organizations
official and outside ....................................................................................................................... 335-353
prohibition against serving for compensation as officer or board member of any .................. 222-223
Other legislative offices ........................................................................................................................ 240
n
Outside business, employment, or other activities ........................................................................ 344-353
benefits resulting from .................................................................................................................... 59-61
travel resulting from ................................................................................................................... 105-106
Outside earned income .................................................................................................................... 185-246
annual limitations on ....................................................................................................................... 386
n
Select Committee on Ethics Advisory Opinion No. 13 .......................................................... 364-365
for senior staff .......................................................................................................................... 141-142
assignment to charities ............................................................................................................ 370, 371
n
copyright royalties ........................................................................................................................ 225-226
from business corporations and ventures .......................................................................... 231, 366-371
from businesses where capital is material income-producing factor .............................................. 367
from close corporations, partnerships, and unincorporated businesses ......................................... 232
from deferred compensation plans .................................................................................................... 370
definition of ......................................................................................................................................... 228
earned vs unearned ............................................................................................................................ 231
ethical concerns ............................................................................................................................ 212-213
honoraria ............................................................................................................................................. 371
from law practices ........................................................................................................................ 366-367
limitations for Members and senior staff ........................................................................... 213, 228-232
administration and enforcement of ........................................................................................ 232-233
annual ............................................................................................................. 141-142, 364-366, 386
n
background on .......................................................................................................................... 211-213
Committee Advisory Memorandum for All Members, Officers and Employees .................. 385-388
exclusions from ........................................................................................................................ 228-230
exemption of copyright royalties from .................................................................................... 225-226
family business exemption ...................................................................................................... 229-230
Select Committee on Ethics Advisory Opinion No. 13 .......................................................... 364-371
statutes and rules governing .................................................................................................. 248-249
from personal service businesses ........................................................................................ 231, 366-367
from pre-effective date services .................................................................................................. 369-370
from subchapter S corporations, partnerships, unincorporated businesses ............................ 368-369
from taxable corporations ........................................................................................................... 367-368
Outside employment ........................................................................................................................ 185-246
benefits resulting from .................................................................................................................... 59-60
gift rule applicability to compensation received from ............................................................... 196-197
laws, rules, and standards of conduct governing ....................................................................... 185-211
limitations on ................................................................................................................ 211-213, 232-233
of professional committee staff .......................................................................................................... 207
restrictions for Members and senior staff ................................................................... 141-142, 213-228
Outside organizations ...................................................................................................................... 335-353
Ownership or other investments of equity: financial benefits from.
see
Unearned income
P
PACs.
see
Political action committees
Pages .......................................................................................................................................................... 15
Paid fellows ......................................................................................................... 286-287.
see also
Fellows
Paid interns ...............................................................................................................285
n
.
see also
Interns
gift rule applicability to ........................................................................................................................ 33
restrictions on .............................................................................................................................. 286-287
Index
435
Part-time employees .................................................................................................................. 33, 276-277
Partisan or political considerations ................................................................................................ 150-151
Partnerships ............................................................................................................................................ 232
outside earned income from ........................................................................................................ 368-369
requirements for disclosure of ........................................................................................................... 260
Pay discrimination .......................................................................................................................... 270, 271
Penalties ................................................................................................................................................ 331
n
for violation of ethical standards ........................................................................................................... 3
for violation of post-employment restrictions ............................................................................ 243-244
Performances, paid ................................................................................................................................. 192
Periodicals, receipt of .......................................................................................................................... 54-55
Perishable items ....................................................................................................................................... 80
Perjury ............................................................................................................................................. 14
n,
281
Personal expenses ................................................................................................................................ 94-95
Personal financial interests ................................................................................................................... 314
Personal friendship
donations on basis of ................................................................................................................ 64
n,
395
n
gifts on basis of ........................................................................................................................ 39-41, 107
travel provided on basis of .................................................................................................. 107, 119-120
Personal funds
use of personal for flights on private aircraft ............................................................................ 118-119
restrictions on use of .................................................................................................................... 329-330
Personal hospitality ..................................................................................................................... 61-63, 259
definition of ...................................................................................................................................... 61-62
gifts of ......................................................................................................................................... 28, 61-63
Personal interest, matters of
Member voting and other official activities on .......................................................................... 233-238
voting and other activities on ..................................................................................................... 234-238
Personal representative or executor of estate, services as ................................................................... 219
Personal service businesses .................................................................................................... 231, 366-367
Personal services ............................................................................................................................. 281-282
Personal staff
detailees ............................................................................................................................................... 293
former employees on ........................................................................................................................... 241
general employment and compensation provisions for ............................................................. 276-282
Personal technology devices ............................................................................................................ 175-176
Petty cash funds ............................................................................................................................... 329-330
Pizza delivery ............................................................................................................................................ 37
Poetry, compensation for writing .......................................................................................................... 192
Political action committees (PACs) .................................................................................................. 48, 140
Political activity
activities that may be either “official” or “political” .................................................................. 178-179
general prohibition against using official resources for campaign or political purposes ........ 123-135
Political affiliation .................................................................................................................................. 274
Political campaign events ........................................................................................................................ 41
Political candidates
contributions to multicandidate political committees ...................................................................... 140
receiving income for political consulting for ................................................................................... 233
n
requirements for registration .......................................................................................................... 253
n
Political committees, multicandidate .................................................................................................... 140
Political consulting and advising ................................................................................................... 218, 233
Political contributions.
see
Campaign contributions
Political conventions ............................................................................................................................ 77-78
436 HOUSE ETHICS MANUAL
Political endorsements ............................................................................................................................. 16
Political events
conventions ....................................................................................................................................... 77-78
determination of ........................................................................................................................... 327-328
Political expenses .................................................................................................................................... 376
Political fundraisers ............................................................................................. 74.
see also
Fundraisers
Political or campaign-related expenses ................................................................................................. 125
Political organizations
definition of ................................................................................................................................. 48
n,
112
fundraising or campaign events sponsored by ............................................................................... 47-48
positions held in .................................................................................................................................. 260
travel paid for by .......................................................................................................................... 111-112
“Political” positions .......................................................................................................................... 318-319
Political support for casework ......................................................................................................... 314-316
Political supporters .......................................................................................................................... 308-309
Post-employment restrictions ............................................................................................... 210
n,
240-244
applicability of .............................................................................................................................. 240-241
Ethics Reform Act ................................................................................................................................... 7
exceptions ..................................................................................................................................... 242-243
penalties for violation of .............................................................................................................. 243-244
scope of ......................................................................................................................................... 241-242
Postal Service ................................................................................................................................ 305
n,
319
Pre-travel certification ............................................................................................................ 103-104, 401
Presidential campaigns ................................................................................................................... 124-125
Press releases ................................................................................................................................... 133-135
Press secretary ........................................................................................................................................ 133
Principal assistants ................................................................................................................................ 252
Printed materials ............................................................................................................................. 128-129
Printing ............................................................................................................................................ 325-326
Privacy Act ....................................................................................................................................... 313-314
Private correspondence with foreign governments ............................................................................ 312
n
Private organizations
appearance as guests at official events ...................................................................................... 342-343
benefits routinely offered without charge ......................................................................................... 343
involvement with ......................................................................................................................... 345-346
lobbyist-sponsored trips ................................................................................. 86, 92-93, 95-96, 400-401
with shared goals ......................................................................................................................... 338-339
Private Sponsor Travel Forms .......................................................................................... 90, 103-104, 401
Privately-sponsored travel ............................................................................................................ 86, 93-95
Committee approval of ........................................................................................................ 103-104, 401
Lobbyist payment of ..................................................................................................... 92-93, 95-96, 401
officially-connected travel .............................................................................................. 88-105, 397-398
paid for by universities ..................................................................................................................... 108
n
unrelated to official duties .......................................................................................................... 105-108
Prizes ......................................................................................................................................................... 69
Pro bono
legal services ........................................................................................................................... 220
accepting ................................................................................................................................................ 65
contributions of legal expense fund ................................................................................................ 63-65
provided by Member or staff .............................................................................................................. 200
Proceedings
agency
formal .............................................................................................................................................. 301
requests for background information of status reports from ....................................................... 302
Index
437
Committee ........................................................................................................................................... 128
Professional committee staff
general employment and compensation provisions for .................................................................... 277
outside employment of ........................................................................................................................ 207
Professional services
prohibition against compensation for affiliating with entities that provide ........................... 220-221
prohibition against use of one’s name by entities that provide ................................................ 221-222
Property
income derived from .................................................................................................................... 254-255
requirements for financial disclosure of ..................................................................................... 254-258
Proprietor positions: disclosure of ......................................................................................................... 260
Public access to reports ........................................................................................................... 264, 393-394
Public admonishment ............................................................................................................................... 12
Public relations consulting and advising .............................................................................................. 218
Public service awards ........................................................................................................................ 53
n,
66
Publishing ........................................................................................................................................ 224-228
Publishing contracts ........................................................................................................................ 224-228
Q
Qualified blind trusts ............................................................................................................................. 262
Qualified diversified trusts ............................................................................................................. 262-263
Quasi-governmental organizations ......................................................................................................... 56
Quasi-municipal corporations ................................................................................................................ 56
n
Questionnaires on legislative issues ..................................................................................................... 135
R
Racial discrimination ............................................................................................................................. 268
Racketeering ....................................................................................................................................... 15, 17
Reapportionment.
see
redistricting
Receptions ................................................................................................................ 50-52.
see also
Events
Recommendations.
see also
Letters of recommendation
oral ..................................................................................................................................................... 316
n
written ............................................................................................................................................... 316
n
Recreational activities .............................................................................................................................. 31
Redistricting .................................................................................................................................. 132, 143
n
House Administration Committee-House Standards Committee Joint Letter on Redistricting of
May 24, 2001 ............................................................................................................................. 408
Member involvement with ................................................................................................................. 183
Referrals.
see also
Letters of recommendation
campaign/congressional office referrals ............................................................................................ 133
oral recommendations ...................................................................................................................... 316
n
written recommendations ................................................................................................................ 316
n
Refreshments.
see
Food and beverages
Registered lobbyists
definition of .............................................................................................................................. 34-35, 92
n
expressly prohibited gifts from ............................................................................................................ 72
limitations on gifts of food from ...................................................................................................... 37-38
Registration fees .............................................................................................................................. 343-344
Rehabilitation Act of 1973 ...................................................................................................................... 270
Reimbursements
impermissible items ........................................................................................................................... 325
from official allowances for official travel ......................................................................................... 331
permissible items ................................................................................................................................ 325
438 HOUSE ETHICS MANUAL
Relatives.
see also
Family members
accompanying: travel ................................................................................................................... 101-103
definition of ............................................................................................................................... 101
n,
272
donations from .......................................................................................................................... 63
n,
395
n
gifts from ......................................................................................................................... 28, 40
n,
69, 259
prohibitions against nepotism .................................................................................................... 272-273
Religious ceremonies: compensation for conducting ............................................................................ 192
Religious discrimination ........................................................................................................................ 268
Religious entities .................................................................................................................................... 260
Rental income: financial disclosure of ............................................................................................ 256-257
Reports.
see also
Financial Disclosure Statements
failure to report campaign contributions ............................................................................................ 14
False Statements Accountability Act of 1996 (Pub. L. 104-292) ................................................... 274
n
FGDA ............................................................................................................................................ 389-393
gift disclosure statements .................................................................................................................. 393
Legal Expense Fund ........................................................................................................................... 397
public access to reports ....................................................................................................................... 264
public inspection of ...................................................................................................................... 393-394
status reports ...................................................................................................................................... 302
termination reports ............................................................................................................................ 263
Representational activities, unofficial ............................................................................................ 351-352
Representational allowance.
see
Members’ Representational Allowance (MRA)
Representational services ............................................................................................................... 198-200
Representative duties ...................................................................................................................... 281-282
Representative positions: disclosure of ................................................................................................. 260
Reprimands ............................................................................................................................................... 12
Republican Congressional Campaign Committee, contributions to ..................................................... 140
Research files, internal ........................................................................................................................... 128
Retirement benefits
calculating ......................................................................................................................................... 240
n
Keogh retirement plans .................................................................................................................... 370
n
Retirement plans: financial disclosure of ....................................................................................... 254-256
Revolving door restrictions.
see
Post-employment restrictions
Royalties: advance payment of ....................................................................................................... 224-228
Rules of the House.
see also
specific rules
against discrimination ................................................................................................................. 268-269
ethics rules ........................................................................................................................................... 2-3
interpretation of ............................................................................................................................... 16-17
numbering of ......................................................................................................................................... 2
n
spirit and letter of ............................................................................................................................ 16-17
S
Salaries
general employment and compensation provisions ................................................................... 276-282
House employee .................................................................................................................................. 277
pay discrimination ...................................................................................................................... 270, 271
Salary inflation ......................................................................................................................................... 15
Salary kickbacks .............................................................................................................................. 274-276
Salary reduction
to do campaign work ........................................................................................................................... 140
official duties commensurate with compensation ............................................................................. 140
Samples, gift ............................................................................................................................................. 36
Sanctions .................................................................................................................................................. 3-4
Index
439
Savings accounts: financial disclosure of .............................................................................................. 255
Scheduling ............................................................................................................................................... 132
Scholarships
educational .................................................................................................................................... 59, 392
for study programs ............................................................................................................................. 329
Scripts: compensation for writing .......................................................................................................... 192
Seal of the Congress ............................................................................................................................... 180
Seal of the House of Representatives .................................................................................................... 180
Seal of the United States ....................................................................................................................... 180
Securities transactions: financial disclosure of ............................................................................. 257-258
Select Committee on Ethics .................................................................................................................... 6-7
Advisory Opinion No. 6 ............................................................................................................... 361-363
Advisory Opinion No. 13 ............................................................................................................. 364-371
Advisory Opinions .................................................................................................................................. 6
on assisting supporters ....................................................................................................................... 309
establishment of ................................................................................................................................... 6-7
Final Report
............................................................................................................................................ 6
on involvement with outside activities and entities ......................................................................... 345
on use of official stationery ................................................................................................................ 373
Senate campaigns ................................................................................................................................... 124
Senate Ethics Committee ....................................................................................................................... 148
Senate gift rule ................................................................................................................................... 28, 29
Senate rules prohibiting receipt of honoraria ..................................................................................... 190
n
Senior staff .................................................................................................................... 211, 212, 252, 364
n
definition of ............................................................................................................................... 214, 385
n
outside earned income limitations .................................................................... 141-142, 228-232, 386
n
annual ............................................................................................................................. 228-232, 386
n
Committee on Standards of Official Conduct Advisory Memorandum for ........................... 385-388
outside employment restrictions ................................................................................. 141-142, 213-228
pay level ............................................................................................................................................... 141
very senior staff .................................................................................................................................. 211
Senior staff rate ...................................................................................................................................... 212
Severance packages .................................................................................................................................. 61
Severance payments ............................................................................................................................... 261
Sex discrimination ........................................................................................................................... 268-269
Sexual advances, improper .............................................................................................................. 15, 16
n
Sexual harassment .......................................................................................................................... 268-269
Shared employees ................................................................................................................................... 277
Shays-Meehan.
see
Bipartisan Campaign Reform Act
“Soft money” contributions ..................................................................................................................... 145
Software
demonstration or evaluation copies ..................................................................................................... 55
Solicitations of funds
on behalf of persons in need of assistance because of catastrophic injury or natural disaster ... 348
n
from or on behalf of outside organizations ................................................................................. 347-349
from relatives or personal friends ................................................................................................... 395
n
restrictions on .............................................................................................................................. 348-349
Souvenir gifts ............................................................................................................................................ 58
Special access ................................................................................................................................... 146-148
Special events .................................................................................................................................. 161-162
Special interest groups .................................................................................................. 28, 31, 94, 328-329
Speech ...................................................................................................................................................... 191
Speeches: compensation for .......................................................................... 191, 192.
see also
Honoraria
440 HOUSE ETHICS MANUAL
Sponsors
definition of ........................................................................................................................................... 46
multiple ............................................................................................................................................... 46
n
Sponsorship, official: expressions or symbols of ............................................................................ 346-347
Sporting events ......................................................................................................................................... 73
Sports teams fielded by House offices ..................................................................................................... 38
Spouses
employment considerations for ................................................................................................... 244-246
gift rule applicability to ................................................................................................................... 33-34
prohibitions against nepotism .................................................................................................... 272-273
requirements for financial disclosure for .......................................................................................... 255
standards for omitting disclosure of assets of ................................................................................... 253
travel by ...................................................................................................... 101-103, 105-106, 120, 159
n
“Stacking” trips ......................................................................................................................................... 95
Staff.
see also
Employees
campaign staff .............................................................................................................................. 161-162
campaign work by ............................................................................................................................. 126
n
committee staff
detailees ........................................................................................................................................... 293
general employment and compensation provisions for ................................................................ 277
outside employment of .................................................................................................................... 207
Congressional Staff Organizations (CSOs) ............................................................................... 336, 337
former employees of committees ........................................................................................................ 241
general employment and compensation provisions for ............................................................. 277-282
gifts of food and beverages to House office for ............................................................................... 37-38
informal Member and staff organizations .................................................................................. 337-338
leadership staff ............................................................................................................................ 241-242
on leave without pay ........................................................................................................................... 277
outside employment of .................................................................................................................. 185-211
personal staff
detailees ........................................................................................................................................... 293
general employment and compensation for ........................................................................... 276-277
proper performance of Congressional duties by ........................................................................ 206-207
rights and duties of staff .............................................................................................................. 267-297
senior staff ................................................................................................................. 211, 212, 252, 364
n
annual outside earned income limitations ................................................................... 228-232, 386
n
definition of ........................................................................................................................... 214, 385
n
outside earned income limitations ................................................. 141-142, 228-232, 385-388, 386
n
outside employment restrictions .............................................................................. 141-142, 213-228
pay level ........................................................................................................................................... 141
very senior staff .............................................................................................................................. 211
senior staff rate ................................................................................................................................... 212
special events for ......................................................................................................................... 161-162
spouses of ..................................................................................................................................... 244-246
travel expenses ............................................................................................................................ 102-105
Committee approval ....................................................................................................................... 104
leaving office ................................................................................................................................... 103
who file financial disclosure ............................................................................................................... 208
STAFFDEL trips.
see
Official travel
Standards of conduct.
see also
Code of Official Conduct
conduct reflecting credibility on the House .................................................................................... 12-16
general .............................................................................................................................................. 1, 2-3
governing outside employment of Members and staff ............................................................... 185-211
Index
441
history of the Committee on Standards of Official Conduct ............................................................. 4-8
violations of ethical standards ............................................................................................................ 3-4
State office campaigns ............................................................................................................................ 124
State or local governments
acceptability of contributions for election to .............................................................................. 148-149
contacting ..................................................................................................................................... 312-313
letters of recommendation for ..................................................................................................... 319-320
things paid for by ............................................................................................................................. 55-56
travel paid for by ................................................................................................................................. 108
State universities .................................................................................................................................. 108
n
Stationery, official
campaign letterhead .................................................................................................................... 179-181
Committee on Standards of Official Conduct Advisory Opinion No. 5 .................................... 372-374
facsimiles of ....................................................................................................... 146, 179-180, 373, 373
n
letters of recommendation on ...................................................................................................... 320-321
Status reports ......................................................................................................................................... 302
Stipends ................................................................................................................................................... 193
Stock transactions: financial disclosure of ..................................................................................... 257-258
Students
Congressional Art Competition ......................................................................................................... 346
pages ...................................................................................................................................................... 15
Study programs ....................................................................................................................................... 329
Subchapter S corporations .............................................................................................................. 368-369
Subpoenas ................................................................................................................................. 10, 305, 312
Supplies, House ...................................................................................................................................... 126
Supporters: assisting ....................................................................................................................... 308-309
Symbols of official sponsorship ....................................................................................................... 346-347
T
Tangible gifts and decorations ................................................................. 393.
see also
Decorations; Gifts
Task Force on Ethics ............................................................................................................................ 7, 27
Task forces 336
n
.
see also
Congressional Member Organizations (CMOs);
specific task forces by name
Tax deductible contributions ..................................................................................................... 194
n,
371
n
Taxable corporations ....................................................................................................................... 367-368
Teaching: receipt of compensation for ............................................................................................ 223-224
Technology services ................................................................................................................................ 174
Telecommunications
campaign-funded communications devices ................................................................................ 175-176
congressional e-mail ............................................................................................................ 128-129, 176
prohibitions against campaign or political communications with House e-mail address .............. 176
websites ....................................................................................................................................... 131, 178
Telecommuting ....................................................................................................................................... 277
Telephone solicitations ........................................................................................................................... 145
Temporary employees ............................................................................................................................. 277
Tennis tournaments ................................................................................................................................. 44
Termination Financial Disclosure Statements ............................................................................. 211, 263
Testimonial dinners ................................................................................................................................ 327
“Think tanks” ....................................................................................................................................... 48-49
Threats to retaliate against fellow Members .......................................................................................... 16
Thrift Savings Plan: financial disclosure of ................................................................................ 240
n,
255
Tickets
to campaign events ............................................................................................................................. 73
n
to charity or political fundraisers ........................................................................................................ 74
442 HOUSE ETHICS MANUAL
complimentary ...................................................................................................................................... 48
paying market value for ....................................................................................................................... 73
to sporting events and shows ......................................................................................................... 31, 73
buydowns ..................................................................................................................................... 35, 36
gifts given on basis of personal friendship from ............................................................................. 40
paying market value for .............................................................................................................. 73-74
valuation of ...................................................................................................................................... 73-74
Time conflicts ................................................................................................................................... 212-213
Time limits for travel: extending ........................................................................................................ 93-94
Town hall meetings ......................................................................................................................... 340-344
Trade associations ........................................................................................................................... 338-339
Training
ethics training requirement ............................................................................................................... 283
in the interest of the House .................................................................................................................. 67
Worker Adjustment and Retraining Notification Act ...................................................................... 270
Transactions: financial disclosure of .............................................................................................. 257-258
Transportation.
see also
Travel
in District of Columbia ......................................................................................................................... 52
to events .............................................................................................................................................. 399
local ...................................................................................................................................................... 399
from outside business or employment activities ............................................................................... 197
Transportation, Department of ............................................................................................................ 303
n
Transportation expenses ..................................................................... 100, 399.
see also
Travel expenses
Travel ................................................................................................................................................. 86-120
acceptable types ............................................................................................................................. 86-120
accompanying relatives ............................................................................................................... 101-103
lobbyist accompaniment and other involvement ...................................................... 89, 95-97, 400-401
campaign-funded ......................................................................................................................... 172-173
to charity events .......................................................................................................................... 117-118
Committee approval ........................................................................................................................... 104
de minimis
lobbyist involvement ................................................................................. 89, 95-97,400-401
definition of ......................................................................................................................................... 87
n
extending at personal expense ........................................................................................................ 94-95
extending time limits for ................................................................................................................. 93-94
fact-finding trips ................................................................................................................... 89, 103, 109
friend paying for .......................................................................................................................... 119-120
foreign government-sponsored ...................................................................................... 86, 108-111, 192
gift rule provisions relating to .................................................................................. 25, 28, 29, 107-108
gifts on basis of personal friendship ...................................................................................... 39, 40, 107
gifts permitted under FGDA .................................................................................................. 86,108-110
guidelines and regulations for .................................................................................................... 397-401
lobbyist accompaniment and other involvement ...................................................... 89, 95-97, 400-401
local transportation incident to visits to business sites ..................................................................... 52
local transportation to charity events ................................................................................................. 45
MECEA trips .......................................................................................................... 86, 108, 110-111, 392
of Members and staff leaving office ................................................................................................... 103
mixed purpose trips ............................................................................................................................ 116
multiple-day trips .......................................................................................................... 86, 89, 94, 96-97
official or officially-related .......................................................................................................... 112-116
frequent flier miles earned through ....................................................................................... 115-116
government rate for ........................................................................................................................ 115
motor vehicles used for ............................................................................................................ 174-175
proper sources of expenses for .................................................................................................... 97-98
Index
443
reimbursement from official allowances for .................................................................................. 331
use of campaign funds to cover expenses of .................................................................................. 176
use of campaign funds to cover motor vehicle expenses ........................................................ 174-175
one-day trips sponsored by private entities that retain or employ lobbyists .............. 86, 96, 400-401
from outside business, employment, or other activities .................................................... 105-106, 120
outside continental United States ............................................................................................... 93, 392
paid for by federal or state or local government ................................................................. 86, 108, 120
paid for by foreign governments ................................................................................... 86, 108-111, 120
paid for by political organizations .............................................................................................. 111-112
paid for by state and private universities ...................................................................... 86, 96-97, 108
n
post-travel disclosure ............................................................................................................. 90, 104-105
pre-travel certification, requirements for .......................................................................... 103-104, 401
on private aircraft ......................................................................................................................... 118-120
regulations for acceptance of gifts from foreign gifts ............................................86, 108-111, 389-393
reported on federal campaign filings ................................................................................................. 260
sponsored by other private entities .......................................................................................... 86, 93-95
sponsored by private entities that retain or employ lobbyists or foreign agents .................. 86, 92-93
“spouse only” trips ....................................................................................................................... 102-103
“stacking” trips ...................................................................................................................................... 95
Travel awards .................................................................................................................................. 115-116
Travel expenses.
see also
Travel
acceptable ....................................................................................................................................... 99-103
for accompanying relatives ..................................................................................... 101-103, 158
n
-159
n
campaign funds for ...............................................................................................157-159, 168-169, 172
contributions to campaigns ................................................................................................................ 139
financial disclosure of reimbursements ..................................................................................... 259-260
from foreign governments ..................................................................................... 86, 108-111, 120, 392
from foreign governments under FGDA ............................................................................... 86, 109-110
from foreign governments under MECEA ................................................................... 86, 110-111, 392
local ........................................................................................................................................................ 99
lodging and food expenses ........................................................................................................... 100-101
moving expenses .................................................................................................................................. 162
for official trips
proper sources of .......................................................................................................................... 97-98
requirement for payment with official funds ......................................................................... 114-115
for one-day events ........................................................................................................................... 86, 89
per diem
rates for meals ..................................................................................................................... 101
private reimbursements for: disclosure of .................................................................................. 259-260
reasonableness of ......................................................................................................................... 398-399
regulations for acceptance of gifts .........................................................................86, 108-111, 389-393
for spouse .................................................................................................................. 101-103, 158
n
-159
n
transportation expenses ..................................................................................................................... 100
vehicle expenses ............................................................................................................ 172-173, 174-175
Traveler Forms ......................................................................................................................... 90, 103, 104
Trustee positions: disclosure of .............................................................................................................. 260
Trusts
qualified blind trusts .......................................................................................................................... 262
qualified diversified trusts .......................................................................................................... 262-263
requirements for financial disclosure of ............................................................................. 256, 262-263
U
Undue influence ................................................................................ 24, 28, 148, 200, 304
n,
305-306, 320
Unearned income .................................................................................................................................... 254
444 HOUSE ETHICS MANUAL
definition of ......................................................................................................................................... 231
financial disclosure of .................................................................................................................. 254-257
Uniformed officers ................................................................................................................................ 293
n
Uniformed Services Employment and Reemployment Rights Act of 1994 ......................................... 270
Unincorporated businesses ............................................................................................................. 368-369
United States Postal Service.
see
Postal Service
Universities, state and private ............................................................................................................ 108
n
Unofficial office accounts ................................................................................................. 326-330, 361, 375
Unofficial representational activities ............................................................................................. 351-352
V
Vacation homes ......................................................................................................................................... 62
Vehicle expenses .............................................................................................................. 172, 173, 174-175
Visiting constituents ........................................................................................................................ 159-160
Visiting fellows ........................................................................................................................................ 286
Volunteers ......................................................................................................................... 284-293, 405-406
Committee on Standards of Official Conduct Letter of June 29, 1990 .................................... 403-407
definition of ............................................................................................................................... 285, 402
n
gift rule applicability to ........................................................................................................................ 33
immediate family members as .................................................................................................... 288-290
inappropriate use of ............................................................................................................................ 290
as informal advisors ........................................................................................................................... 290
for Member campaigns ..................................................................................................................... 138
n
Peace Corps volunteers ........................................................................................................................ 15
Voter registration ................................................................................................................................... 135
Voting on matters of personal interest ........................................................................................... 233-238
W
Wages.
see also
Compensation; Salaries
fair labor standards ............................................................................................................................ 271
pay discrimination ...................................................................................................................... 270, 271
Waivers
of financial reporting requirements ......................................................................................... 296
n,
314
general .............................................................................................................................................. 70-71
of gift reporting requirements ............................................................................................. 84, 107, 120
gift rule ............................................................................. 38, 41, 45, 47, 48, 49, 50, 52, 70-71, 102-103
honoraria ............................................................................................................................................... 74
Washington, District of Columbia
government ....................................................................................................................................... 288
n
meals at lobbying or law firm offices in .............................................................................................. 52
transportation in ................................................................................................................................... 52
Washington Metropolitan Area Transit Authority (WMATA) .............................................................. 56
Websites .......................................................................................................................................... 131, 178
Wedding gifts ....................................................................................................................................... 70-71
White House Correspondents’ Dinner ..................................................................................................... 47
Witness and juror fees ............................................................................................................................ 192
WMATA.
see
Washington Metropolitan Area Transit Authority
Worker Adjustment and Retraining Notification Act .......................................................................... 270
Worship services ..................................................................................................................................... 192
Writing
articles .......................................................................................................................................... 191-192
books .............................................................................................................................................. 226-228
Written recommendations ....................................................... 316
n
.
see also
Letters of recommendation
