Summary Table
September 29, 2006
FROM: Committee on Standards of Official Conduct
s/ Doc
s/ Howard L. Berman, Ranking Minority Member
SUBJECT: Post-Employment and Related Restrictions for Members and Officers
The purpose of this memorandum is to acquaint you with key issues of concern to departing Members and officers of the House of Representatives.[1] The matters discussed here include negotiating for future employment, the post-employment restrictions, financial disclosure requirements (termination reports), use of excess campaign funds, the outside employment and earned income restrictions, and travel. Although this memorandum will be of particular interest to departing Member, current Members should also familiarize themselves with these restrictions, especially the criminal restrictions on post-employment contact that have been the subject of recent attention by the United States Department of Justice. The most critical points may be summarized as follows:
Departing Members may not:
allow the prospect of future employment to affect their official actions;
for one year after leaving office, communicate with or appear before any Member or staff of the House or Senate, or any legislative branch agency, on official business, as detailed below;
represent, aid, or advise a foreign government or foreign political party with the intent of influencing any Federal official for one year after leaving office;
convert excess campaign funds to personal use.
Departing Members must:
file termination financial disclosure statements within 30 days of leaving office, unless the Standards Committee grants an extension of the due date.
More detailed guidance follows. We encourage you to write to the Committee or call the Committee’s Office of Advice and Education at extension 5-7103 for guidance addressed to your specific circumstances.
NEGOTIATING FOR FUTURE EMPLOYMENT
A Member is free to pursue future employment contemporaneous with the Member’s service in the House, subject, however, to certain ethical constraints. First and foremost, it would be improper for a Member to permit the prospect of future employment to influence the Member’s official actions. A Member may determine to use an agent (a “headhunter”) to solicit job offers on the Member’s behalf in order to avoid any improper appearances, although this is not necessary, provided the following generally applicable principles are observed.
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.[2] The Code of Ethics for Government Service (¶ 5) 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., anything of value in exchange for being influenced in an official act.[3] 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.[4]
In light of these restrictions, a Member should be particularly careful in how he or she goes about negotiating for future employment, especially when negotiating with anyone who could be substantially affected by the performance of official duties.[5] It may be prudent for a Member to have an exchange of correspondence with any serious negotiating partner, stipulating that the prospective employer (1) will receive no official favors in connection with the job negotiations and (2) understands that the Member can neither contact Congress on official business for one year after leaving office nor assist any foreign government in securing official action from any Federal official during that year.[6]
A Member must consider whether it is necessary to abstain from voting or taking other official actions on matters that would affect an outside party with whom the Member is negotiating for, or from whom the Member has accepted, employment, particularly where that party is a non-constituent. Under longstanding House precedents, abstention from voting on the House floor is not warranted unless the measure would convey a particular benefit (in this case, to the outside party with whom the Member is negotiating), rather than a benefit that would be shared by a large class to which the prospective employer may belong.[7]
Thus, for example, negotiating with a defense contractor ordinarily would not oblige a Member to abstain from voting on the Defense Department appropriations bill. On the other hand, a Member may need to abstain from voting on legislation authorizing a particular aircraft while negotiating for, or after reaching an agreement concerning, future employment with the manufacturer of the aircraft. Official actions other than voting on the House floor – such as introducing legislation or advocating or participating in an action by a House committee – require added circumspection. For example, contacts with the Executive Branch on behalf of a non-constituent prospective employer would rarely be justified.
Provided that a Member conducts himself or herself in accordance with the considerations discussed above, the Member 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.
Further, the House 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.”[8] Thus, subject to the limitations set out in the rule, a Member may accept travel expenses from a negotiating partner to interview for a position and to meet prospective colleagues.
POST‑EMPLOYMENT RESTRICTIONS
The
Ethics Reform Act of 1989 contains post‑employment restrictions
applicable to legislative branch officials.
These limitations are part of the Federal Criminal Code (18 U.S.C. § 207(e),
(f)), and they apply to Members and officers of the House, as well as to
employees who are paid at least 75% of a Member’s salary ($123,900 in 2006).[9] For these covered individuals, the law
establishes a one-year “cooling-off period” measured from the date of the
individual’s departure from the House.[10]
Set out
below is a detailed description of prohibited and permitted post-employment
activities of former Members under the statute.
This explanation is followed by a table that briefly summarizes the
statutory restrictions. Please note that
the statute, as part of the Criminal Code, is enforced by the Justice
Department, rather than by the Standards Committee, and Committee
interpretations of the statute are not binding on the Justice Department.
Prohibited Activity
Under the statute, former Members
may not, for a period of one
year after leaving office:
Knowingly
communicate with or appear before any
Member, officer or employee of the House or the Senate,[11] or
current employees of any other legislative office,[12] with
the intent to influence, on behalf of any other person, the official actions or
decisions of such Member, officer, or employee.[13] The statute excepts certain representations
made on behalf of specific types of entities.
These exceptions are described below in the context of “permissible
activity.”
Knowingly
represent 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.[14]
Knowingly
aid or advise a foreign government or foreign political party with the intent to
influence a decision of any Federal official (including any Member of Congress)
in carrying out his or her official duties.[15]
Use confidential
information obtained by means of personal and substantial participation in
trade or treaty negotiations within one year preceding their departure from office,
in the course of representing, aiding, or advising anyone other than the
As to the
prohibition against making any “communication to or appearance before” anyone
in the legislative branch, former Members should be aware of the broad manner
in which those terms have been defined under 18 U.S.C. § 207.[17] A Justice Department opinion defines
“communication” as “the act of imparting or transmitting information with the
intent that the information be attributed to the former official.”[18] An advisory memorandum issued by the U.S.
Office of Government Ethics for Executive Branch employees states, “An
‘appearance’ extends to a former employee’s mere physical presence at a
proceeding when the circumstances make it clear that his attendance is intended
to influence the
In addition to the
one-year “cooling-off period” restrictions set out above, Members should
further be aware of a permanent federal statutory restriction that prohibits
any
Directly
or indirectly commencing or carrying on
any correspondence or intercourse with any foreign government, or any
officer or agent thereof, with the intent to influence the measures or conduct
of any foreign government or of any officer or agent thereof in relation to any
disputes or controversies with the United States, or to defeat the measures of
the United States.[21]
Permissible Activity
Under Federal statutory law, former Members may, immediately upon leaving office:
Aid or advise clients (other than foreign governments or
foreign political parties) concerning
how to lobby Congress, provided the former Member makes no appearance
before or communication to Members or employees of Congress. Such a “background role” would not pose the
contemplated risk of improper influence since the current officials would not
be aware of the former official’s participation.[22] Any such participation must remain
behind-the-scenes, however: during the one-year “cooling-off” period, former
Members must not permit their name to be openly associated with contact by
other persons.[23]
Contact Executive Branch officials with the intent to influence
official action so long as not representing a foreign government or foreign political
party.
Contact state government officials with the intent to influence state
government actions or decisions. Former
Members should comply with any state laws governing such contacts.
Contact one foreign government on behalf
of another foreign
government.[24]
Contact Members, officers and employees
of the House and Senate and other Legislative Branch officials under any of the following
circumstances:
The former Member is carrying out official duties on behalf of the Federal Government;[25]
The former Member is acting as an elected official or employee (not as a private consultant or other independent contractor) of a state or local government;[26]
The
former Member is an employee of an
accredited, degree-granting institution
of higher education and is acting on behalf of such institution;[27] or
The former Member is an employee of a charitable hospital or medical research organization and is acting on behalf of such hospital or organization.[28]
Represent or give aid or advice to
international organizations
of which the
Make statements based upon the “special
knowledge” of the former
Member concerning the particular area that is the subject of the statement, if no compensation is received in
connection therewith.[30]
Give testimony under oath, or make statements required to be made
under penalty of perjury.[31]
Interact socially with
current Members of Congress and staff provided
that no appearances or communications are made with the intent to
influence, on behalf of any other person, the official actions or decisions of
current Members or staff. Former Members
may also make political contributions
to, and sponsor or attend political
fundraisers for, current Members of Congress, subject to the same provisos.
Example 1. Member A retires to accept an appointed position in an Executive Branch agency. A may immediately contact Congress on behalf of the agency.
Example 2. Member B retires to become Governor of his state. B may immediately lobby Congress on behalf of his state.
Example 3. Member C retires to become president of a private university. C may immediately lobby Congress on behalf of the school.
Example 4. Member D retires and moves back to her home state. D may immediately lobby state government officials on behalf of any clients.
Example 5. Member E retires to become a lobbyist. During her first year out of office, E lobbies only Executive Branch personnel, E never contacts Members or employees of Congress on behalf of clients, and E has no foreign clients. E is complying with the law.
Example 7. During his first year out of office, former Member G wishes to contact a current Member to urge him to support Federal funding for a non-profit organization operated by a friend of G. The non-profit organization is not a client of G, and G would receive no compensation for making the contact. G would violate the statute by doing so, in that the statute bars such contacts regardless of whether the former official would be compensated for them.
Example 8. During her one-year “cooling-off” period, former Member H, who has become a lobbyist, is asked by a current Member about the views of one of her clients on a pending piece of legislation. H would violate the statute if she were to state her client’s views to the current Member, in that there is no exception in the statute for covered communications that are solicited by a current Member or staff person. However, it may be permissible for H to refer the Member to one of her colleagues who is not subject to post-employment restrictions.
Each violation of the post-employment restrictions set forth in 18 U.S.C. § 207 is a felony punishable by imprisonment up to one year (or up to five years for willful violations) and a fine of up to $50,000 for each violation or the value of the compensation received for the act which violated the restrictions, whichever is greater.[32] The statute further authorizes the Attorney General to seek an injunction prohibiting a person from engaging in conduct that violates the act.[33]
By their terms, the provisions of 18 U.S.C. § 207 summarized above govern the conduct of former Members, officers and employees, and do not apply to the conduct of current Members, officers and employees. However, the post-employment restrictions have been the subject of recent close attention by the United States Department of Justice, as reflected in the guilty pleas by former House staff and others to criminal violations of the statute.[34] Therefore, current Members and staff who receive or otherwise participate in improper contacts by a covered former employee should be aware that, depending on the circumstances, they may be subject to criminal or House disciplinary action. The recent examples involving § 207 violations indicate that a Member who aids and abets a covered former employee in the violation may be prosecuted for conspiracy to violate the post-employment restrictions.
Furthermore, in a Standards Committee disciplinary case that was completed in the 106th Congress, a Member admitted to engaging in several forms of conduct that violated the requirement of the House Rules that each Member and staff person “conduct himself at all times in a manner that shall reflect creditably on the House.”[35] 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 her resignation, “in a manner that created the appearance that his official decisions might have been improperly affected.”[36]
A Member who has any concerns about the applicability of the post-employment restrictions to his or her proposed conduct should write to the Standards Committee to secure a written advisory opinion. While, as noted above, the 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 as any applicable opinions or guidance of the Justice Department or the U.S. Office of Government Ethics of which the Committee is aware. [37]
FLOOR PRIVILEGES
The type of work that a Member does
after leaving office may limit the Member’s future floor privileges. While former Members generally are entitled
to admission to the Hall of the House, this privilege is not extended to those
who are registered lobbyists or agents of a foreign principal, have any direct
personal or pecuniary interest in any pending legislation, or who work for or
represent anyone “for the purpose of influencing, directly or indirectly, the
passage, defeat, or amendment of any legislative proposal.”[38] In short, a Member may not take advantage of
his or her status as a former Member to lobby current Members on the House
floor (that is, those areas restricted to the public). Unlike the
post-employment restrictions, this rule has no time limit.[39]
FINANCIAL DISCLOSURE
A departing Member of Congress must file a final Financial Disclosure Statement, called a Termination Report, within 30 days of leaving office.[40] Extensions of up to 90 days are available upon written request to the Standards Committee. The termination report, filed on the same form as the annual report, covers all financial activity through the end of the Member’s term.
Schedule IX of the Financial Disclosure Statement requires disclosure of any agreement entered into by the Member, oral or written, with respect to future employment. Thus, if a Member accepts an employment position while still in office, the Member will have to disclose the agreement on his or her public termination filing. The date of the agreement, the employer, the position title and the starting date must be disclosed, but the amount of the compensation need not be disclosed. The Member will also have to disclose, on Schedule VII of the form, any travel reimbursements exceeding $305 received from a source in connection with job-search activity.
However, a Member who immediately accepts another federal position requiring the filing of a public financial disclosure statement need not file a Termination Report.
EXCESS CAMPAIGN FUNDS
House Rule 23,
clause 6, prohibits the conversion of campaign funds to personal use by sitting
Members of Congress. Federal election
law, as implemented by a set of regulations issued by the Federal Election
Commission (“FEC”), bans the use of excess campaign funds for personal purposes
by anyone, incumbents and non-incumbents alike.[41]
Example 9. Member J would like to keep the car owned by his campaign when he retires. If he pays the campaign the car’s fair market value, J may do so.
As to excess campaign funds, among the permissible uses under statutory law are donation to charities described in §170(c) of the Internal Revenue Code, and contribution to any national, state or local committee of a political party.[42] A former Member may use campaign funds to defray the costs of winding down his or her congressional office for a period of up to six months after leaving office.[43] In addition, both the FEC and the Standards Committee have ruled that a retiring Member may use campaign funds to pay the expenses of moving both congressional office furnishings and personal household furnishings and effects back to the Member’s home state.[44] A retiring Member should consult with FEC staff on the specifics of statutory law and FEC rules on the use or disposition of excess campaign funds, including with regard to maintaining those funds for use in a future campaign, or making donations to other candidates.
OUTSIDE EMPLOYMENT AND EARNED INCOME RESTRICTIONS
Example 10. Member K plans to join a law firm when she leaves office. Since this is a firm providing professional services of a fiduciary nature, K may not commence employment with the firm until the new Congress is sworn in, unless she resigns early.
Several rules may affect a departing Member’s travel decisions. House Rule 24, clause 10, prohibits the use of committee funds and local currencies owned by the United States to pay for travel by a Member (1) after the date of a general election in which he or she was not elected to the succeeding Congress, or (2) in the case of a Member who is not a candidate in a general election, after the earlier of the date of the general election or the sine die adjournment of Congress.
With regard to privately funded travel that is factfinding in nature, because the gift rule requires that such travel be related to official duties, it is questionable whether a Member may accept an invitation for a such travel that would take place after the sine die adjournment. As of that time, the official responsibilities that may justify acceptance of travel expenses for such a purpose will practically have come to an end. However, this consideration does not limit the ability of a departing Member to accept travel expenses from a private source for the purpose of enabling the individual to participate substantially in an officially related event, such as to give a speech.
* * *
Any questions on these matters should be directed to the Committee’s Office of Advice and Education at extension 5-7103.
[1] Hereafter in this memorandum, the term “Members” is used to refer to House Members, Delegates and the Resident Commissioner, as well as to the elected officers of the House. The restrictions discussed herein apply uniformly to these officials, except where noted with regard to the elected House officers. The elected officers of the House include the Clerk, Sergeant-at-Arms, and Chief Administrative Officer. The Committee has available a separate memorandum addressing a similar range of issues pertinent to departing employees of the House and certain other legislative offices.
[2] House Rule 23, cl. 3.
[3] 18 U.S.C. § 201(b)(2)(A).
[4]
[5]
Regarding the meaning of the term “negotiation” as used here, it is useful to
consider court decisions that interpret a federal criminal statute barring
Executive Branch employees from participating in matters affecting the
financial interests of an entity with which the employee is “negotiating or has
any arrangement” concerning future employment (18 U.S.C. § 208). Those decisions have found that the term
“negotiation” should be construed broadly.
See, e.g., United States v.
Schaltenbrand, 930 F.2d 1554, 1559 (11th Cir. 1991), cert. denied, 502
Nevertheless, negotiation is to be distinguished from “[p]reliminary or exploratory talks,” inasmuch as the former connotes “a communication between two parties with a view toward reaching an agreement” and in which there is “active interest on both sides.” United States v. Hedges, 912 F.2d 1397, 1403 n. 2 (11th Cir. 1990) (quoting jury instruction); see also Schaltenbrand, 930 F.2d at 1558, 1559 n. 2.
[6] Former Members who are
[7] See House Ethics Manual, 102d Cong., 2d Sess. 120-23 (1992).
[8] House Rule 25, cl. 5(a)(3)(G)(ii).
[9] 18 U.S.C. § 207(e)(6)(A). An employee is subject to post-employment restrictions if the Member was paid at or above that salary for 60 days or more in the one year prior to leaving Government service. The restrictions affecting employees are narrower than those applying to Members and officers. As noted in note 1 above, the Committee has available a separate memorandum specifically addressing concerns of departing staff.
[10] For Members who are not re-elected to the House, this date will be January 3 of the year following the election (not the date of sine die adjournment), unless the Member resigns prior to that date.
[11] Unlike former Members, former elected officers of the House are unrestricted in their post-employment interactions with all Senate personnel and may similarly interact with employees of “other legislative offices”. See 18 U.S.C. § 207(e)(1)(C). Put another way, during the statutory “cooling-off” period, a former House officer is restricted from contacting only Members, officers and employees of the House.
[12] “[O]ther legislative offices” include the Architect
of the Capitol, the
[13] 18 U.S.C. § 207(e)(1).
[14] 18 U.S.C. § 207(f)(1)(A), (i)(1)(B). 18 U.S.C. §207(f)(3) uses the definitions of the terms foreign government and foreign political party that are found in the Foreign Agents Registration Act (22 U.S.C. § 611(e), (f)). These restrictions also apply with regard to any foreign commercial corporation that “exercises the functions of a sovereign.” See U.S. Office of Gov’t Ethics, Summary of Post-Employment Restrictions of 18 U.S.C. § 207 at 11 (July 29, 2004) (available on the OGE website, www.usoge.gov, under the link for DAEOgrams). Also pertinent to these provisions of the statute is a U.S. Office of Legal Counsel opinion of June 22, 2004, the text of which is available under the same link on the OGE website (DAEOgram of Oct. 5, 2004), which concludes that 18 U.S.C. § 207(f) covers representational contacts with Members of Congress.
[15] 18 U.S.C. § 207(f)(1)(B).
[16]
[17] The provisions of 18 U.S.C. § 207 should not be confused with those of the Lobbying Disclosure Act (2 U.S.C. § 1601 et seq.), i.e., merely because a particular activity does not constitute “lobbying” for purposes of that Act does not mean that the activity is permissible under 18 U.S.C. § 207.
[18]
U.S. Office of Legal Counsel, “Communications”
under 18 U.S.C. § 207 at 3 (Jan. 19, 2001) (available on the OLC website, www.usdoj.gov/olc, under the link for
memoranda/opinions. In that opinion, the
Office of Legal Counsel provides the following illustrative examples: “A high-ranking official who aggressively publicizes
the fact that he is leaving an agency to start a one-man consulting firm, then
submits a report to the agency shortly thereafter under the name of that firm,
almost certainly intends that the report will be attributed to him. Similarly, a former official who is not
introduced by name, but participates on a conference call with his former
agency colleagues, almost certainly intends this his colleagues will recognize
his voice.”
[19] Summary of Post-Employment Restrictions of 18 U.S.C. § 207, supra note 14, at 3.
[20]
[21]
18 U.S.C. § 953 (the
[22] As noted in note 6, above, former Members who are lawyers should consult their local bar association concerning the application of rules governing their participation in matters in which they participated personally and substantially as Members, and should also be aware of the prohibitions of 18 U.S.C. § 203 regarding fee sharing.
[23] As noted above, the major restrictions set forth in 18 U.S.C. § 207(e) focus on communications and appearances. By contrast, if a former Member plays a background role, and 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. This construction is consistent with regulations promulgated by the U.S. Office of Government Ethics, interpreting a comparable prohibition that applies to Executive Branch personnel. See 5 C.F.R. § 2637.201(b)(3), (6). This matter is also addressed in the 2001 U.S. Office of Legal Counsel opinion that is cited in note 18 above, including with regard to activities that do not constitute permissible “behind-the-scenes” activities.
[24] No Federal statute
expressly permits such contacts, but so far as the Committee is aware, no
Federal statute prohibits such contacts.
Thus, it appears that such contacts are permissible under Federal law. Members who intend to undertake such
activity, however, should carefully review the Foreign Agents Registration Act
(22 U.S.C. §§ 611 et seq.) to ensure compliance with its
requirements. Briefly stated, the Act
provides that anyone who acts within the
[25] 18 U.S.C. § 207(j)(1).
[26]
[27]
[28]
[29]
[30]
[31]
[32] 18 U.S.C. § 216.
[33]
[34] See United States v. Jack A. Abramoff, Docket No. 06-CR-001 (D.D.C.); United States v. Tony C. Rudy, Docket No. 06-CR-082 (D.D.C); United States v. Neil G. Volz, Docket No. 06-CR-119 (D.D.C.). In addition, on September 15, 2006 the Department of Justice filed a plea agreement in which Representative Robert W. Ney pleaded guilty to conspiracy to violate, inter alia, the post-employment restrictions for former covered employees.
[35] House Rule 23, cl. 1.
[36] House Comm. on Standards of Official Conduct, Summary of Activities, One Hundred Sixth Congress, H. Rep. 106-1044, 106th Cong., 2d Sess. at 10, 13, 16 (2000).
[37] 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.
[38] House Rule 4, cl. 4(a). The rule was amended by H. Res. 648 on February 1, 2006. Section 2 of H. Res. 648 provides that former Members, as well as their spouses, who are registered lobbyists or agents of a foreign principal are also prohibited from access “to any exercise facility which is made available exclusively to Members and former Members.”
[39] Departing Members may also wish to review a memorandum issued by the Congressional Research Service, “Selected Privileges and Courtesies Extended to Departing and Former Members of the House of Representatives,” No. 98-962 (available on the CRS website, www.crs.gov).
[40] 5 U.S.C. app. 4, § 101(e).
[41] 2 U.S.C. § 439a; 11 C.F.R. Part 113.
[42] 2 U.S.C. § 439a.
[43] 11 C.F.R. § 113.2(a)(2).
[44] FEC Advisory Opinion 1996-14 (available on the FEC website, www.fec.gov).
[45] House Rule 25, cl. 1-4. The outside employment and earned income limitations are also codified at 5 U.S.C. app. 4 §§ 501-502.