The Honorable J. Dennis Hastert, Speaker
The Honorable Nancy Pelosi, Democratic Leader
Among
the provisions of the rules package that was adopted at the beginning of this
Congress were amendments to the rules that govern the outside employment of
Members and senior staff. The purpose of
this letter is to state our concern that those amendments are inconsistent with
statutory law on the same subject, and hence do not achieve their intended
purpose.
The
intent of the amendments was to make it permissible for Members and senior
staff who are medical practitioners to receive income (up to the amount of the
outside earned income limitation) from a medical practice. Specifically, the amendments added an
exception for “the practice of medicine” to the provisions of the House Rules
that prohibit Members and senior staff from receiving compensation for either –
practicing a
profession that involves a fiduciary relationship, or
being
employed by or affiliating with any firm, partnership or other entity the
provides professional services involving a fiduciary relationship.[1]
These
provisions of the House Rules were originally approved as part of the Ethics
Reform Act of 1989.[2] The Act included as well a set of statutory
provisions that incorporate these very same prohibitions on outside employment,
and that are applicable not only to Members and senior staff of the House and
Senate, but also to highly paid, non-career officials in all branches of the
federal government.[3] In 1998 the Standards Committee determined
that these provisions of the House Rules and statutory law apply to the
practice of medicine, and that determination is reflected in a published
Committee advisory memorandum of
The
evident intent of the rules amendments of earlier this year was to overturn that
Committee determination. However, no
corresponding amendments have been made to the same prohibitions that appear in
statutory law. To reiterate, the
statutory prohibitions clearly apply to House Members and senior staff.[5] While the statute provides the Committee with
authority to administer the statutory prohibitions with respect to House
Members and staff,[6]
that authority does not enable the Committee to simply create exceptions to the
statute for a particular profession. In
our view, such exceptions may be created only through the enactment of a
statutory amendment. It should also be
noted that the statutory prohibitions are enforceable by means of a civil
action initiated by the Attorney General, and a violation may result in a civil
penalty of not more than $10,000 or the amount of compensation that the
individual received for prohibited conduct, whichever is greater.[7]
In
sum, in our view, unless and until exceptions comparable to those now reflected
in the House Rules are added to the statutory prohibitions by amendment, House
Members and senior staff continue to be prohibited from receiving compensation
for practicing medicine, or for being employed by or affiliated with a firm,
partnership or other entity that is a medical practice. For the sake of clarity, we stress that we
are not here commenting on the wisdom or the appropriateness of making
exceptions to these prohibitions for the practice of medicine. Instead, we are commenting only on what we
perceive to be the ineffectiveness of the rules amendments approved earlier
this year. We are, of course, available
for further discussion of this matter.
We
are providing a copy of this letter to each Member who has in the past maintained
a medical practice. We strongly
recommend that any Member or senior staff person who receives, or wishes to
receive, income from a medical practice first consult with the Committee’s
Office of Advice and Education.
Sincerely,
Joel Hefley Alan B. Mollohan
Chairman Ranking Minority Member
cc: The Honorable Michael C. Burgess The Honorable Tim Murphy
The Honorable Phil Gingrey The Honorable Vic Snyder
The Honorable Jim McDermott The Honorable Dave Weldon
[1] House Rule 25, cl. 2(a), 2(c).
[2] Pub. L. No. 101-194, § 804(b), amending clauses 1 and 2 of then-House Rule 47, which has been re-numbered as House Rule 25.
[3]
[4] As reflected in that memorandum, the Committee has also taken the position that a Member who is a doctor does not violate these prohibitions 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 medical practice.
[5] See 5 U.S.C. app. 4 § 505(1), (2).
[6]
[7]