Official allowances may be used only for official expenses.
Official allowances may not be converted to personal or campaign use or applied towards any unofficial activity.
Only official allowances (appropriated funds) and Members' personal funds may be used to defray official expenses.
House Rule 45, the prohibition on unofficial office accounts, bars the use of private funds or services from outside sources for official activities.
The misuse of official allowances violates House rules and may also subject Members or employees to criminal prosecution and actions to recover the misspent funds.
The Committee on House Administration governs certifications, documentation, and other standards for reimbursement from the official allowances. Many of that Committee's regulations are set forth in the U.S. House of Representatives Congressional Handbook.
A Member's frank may be used only to mail material relating to the official duties, activities, and business of a congressional office.
Each Member receives a limited annual franking account. Expenditures from this account are publicly disclosed by the Clerk of the House four times a year.
The frank may be used for:
* constituent mail relating to public issues;
* press releases, newsletters, and questionnaires;
* mail to other legislators and government bodies;
* Federal publications, laws, regulations, and the Congressional Record.
The frank may not be used for:
* political or personal mail;
* holiday greeting cards or reports on a Member's family;
* expression of condolences on a personal loss or congratulations on a personal achievement.
A Member's frank may not be loaned to any person or organization other than official congressional committees as authorized in the franking law.
In addition, current policy of the Commission on Congressional Mailing Standards prohibits the use of the frank for the solicitation of any funds.
Regulations issued by that Commission should be consulted for further guidance.
Members of Congress receive various allowances to defray the expenses incurred in holding office. Statutory authorizations often note that such allowances are for expenses of an ``official'' or ``strictly official'' nature. (FOOTNOTE 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. Chapter 5 addressed the use of the clerk hire allowance. This chapter discusses the official expense allowance and the franking privilege.
(FOOTNOTE 1) See, e.g., 2 U.S.C. secs. 42c, 43b, 46g, 46g-1, 56, 122a.
(FOOTNOTE 2) Comm. on House Admin., U.S. House of Representatives Congressional Handbook sec. 2.I.A, at 2.1, sec. 2.III.A.1, at 2.18 (Sept. 1985) (hereinafter Congressional Handbook).
(FOOTNOTE 3) Id. sec. 2.I.A.1-2, at 2.1; sec. 2.III.A.1.a-b, at 2.18.
(FOOTNOTE 4) Id. sec. 2.I.A.4, at 2.1; sec. 2.III.A.1.d, at 2.18.
Example 1. Member A's wife is a travel agent. A may not make official travel arrangements through his wife's agency because she would then be benefiting monetarily from the expenditure of official funds. She may book his campaign travel, provided that she does not charge the campaign more than she would charge other customers.
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. B may rent campaign space from the staffer, at fair market value.
In the 100th Congress, the Committee investigated charges that a Member had allowed his former law firm to use official resources. (FOOTNOTE 5) The 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.
(FOOTNOTE 5) House Comm. on Standards of Official Conduct, In the Matter of Representative Austin J. Murphy, H. Rep. No. 100-485, 100th Cong., 1st Sess. 4 (1987).
The Congressional Handbook provides examples of items for which the official expenses allowance may be used, as well as a list of prohibited expenditures. Included among the permissible uses are expenditures for travel, office equipment leases, district office leases, stationery, telecommunications, printing and product services, costs of audio/video recordings produced in the House Recording studio, postage, computer services, flags for constituents, (FOOTNOTE 6) and other expenses related to the Member's official business.
(FOOTNOTE 6) Alternatively, Members may ask constituents requesting flags flown over the Capitol to pay for the cost of the flags, plus postage. See Dear Colleague letter from Charles Rose, Chairman, and William M. Thomas, Ranking Republican Member, Comm. on House Admin. (Feb. 26, 1991). Sometimes, a charity will request that a Member donate a flag for auction. Official resources should not be used to support fundraising activities; a Member may purchase a flag with personal or campaign funds for donation to charity.
The official expenses allowance may not be used for the following:
(1) Expenses relating to the hiring and employment of individuals, such as employment service fees or relocation costs.
(2) Items purchased from other than the House stationery store which have a useful life in excess of the current term of the Member, and which have a residual value of more than $25 upon expiration of the current term of the Member.
(3) Holiday greeting cards, flowers, trophies, and awards.
(4) Personal advertisements (other than meeting or appearance notices).
(5) Payments for consultants or contract employees.
(6) Donations or gifts of any type, except flags of the United States flown over the Capitol and items purchased for use as diplomatic gifts when on official travel for the House outside the United States.
(7) Dues or assessments other than to legislative support organizations approved by the Committee on House Administration.
(8) Purchases of radio and television time.
(9) Food or beverage costs, unless incidental to discussions, relating to the Member's official and representational duties, with non-House individuals who have a legitimate interest therein, and only to the extent of $1,500 per session.
(10) Educational expenses for courses of study, information and training programs, unless the subject relates to the Member's official and representational duties, the benefit accrues primarily to the House, and the skill or knowledge is not commonly available. Educational expenses for programs not offered by the Federal Government require prior written authorization from the Committee on House Administration.
(11) Parking for the Member or employees at district offices, except when included as an integral part of the lease or occupancy agreement. (FOOTNOTE 7)
(FOOTNOTE 7) Congressional Handbook, supra note 2, sec. 2.III, at 2.18-2.62.
The allowance for official expenses may be used to pay dues or assessments to a legislative service organization (i.e., a caucus, committee, or similar group operated solely to provide legislative services or other assistance to Members in the performance of their official duties). (FOOTNOTE 8) A legislative service organization ``which receives contributions or any form of income, either direct or in-kind, from any source other than the Members . . . shall not be located in space under control of the House and shall receive no other support from the House or from Members of the House via their allowances.'' (FOOTNOTE 9) The Committee on House Administration certifies and publishes a list of legislative service organizations that satisfy the criteria established by the committee. (FOOTNOTE 10)
(FOOTNOTE 8) Comm. on House Admin., Regulations governing Legislative Service Organizations, introductory paragraph (adopted Oct. 21, 1981) (hereinafter LSO Regs.), reprinted in Comm. on House Admin., Report of the Ad Hoc Subcommittee on Legislative Service Organizations, 97th Cong., 2d Sess. 13 (1982). Legislative service organizations are discussed in greater detail in Chapter 9 of this Manual.
(FOOTNOTE 9) LSO Regs., supra note 8, para. 4, at 14. Although Members may not use their official allowances to support legislative service organizations that are privately funded, official caucuses may take advantage of educational intern, fellowship, or volunteer programs that are primarily of educational benefit to the participants. An official LSO may also distribute to Members research materials prepared by persons not employed by the legislative service organization if the source of the materials is disclosed. Id. para. para. 3, 8, at 13-14.
(FOOTNOTE 10) Congressional Handbook, supra note 2, at 7.13.
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. (FOOTNOTE 11) These rules 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 activities.
(FOOTNOTE 11) These regulations are reprinted in the Congressional Handbook, supra note 2, at 2.25 and 7.16, and as an appendix to this chapter.
Example 3. Member B is planning to film a campaign commercial. B may not film in her congressional office because that would be using an official resource for a campaign purpose. She may film her commercial on the outside steps of the Capitol, however, as that is a 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:
No Government publication or other Government printed matter, prepared or produced with either appropriated or nonappropriated funds or identified with an activity of the Government, shall contain any advertisement inserted by or for any private individual, firm, or corporation; or contain material which implies in any manner that the Government endorses or favors any specific commercial product, commodity, or service. (FOOTNOTE 12)
(FOOTNOTE 12) Joint Comm. on Printing, Government Printing and Binding Regulations, S. Pub. No. 101-9, 101st Cong., 2d Sess. sec. 13, at 13 (1990).
The Joint Committee is of the opinion that commercial advertising is not a proper or authorized function of the Government. Such advertisements can be made to appear to be Government endorsements and thus give unfair advantage to their subjects. Furthermore, publishing such advertisements is unjust to the public in that it allows private advertisers to profit at the expense of the Government, particularly as a considerable number of the publications are circulated free, at least in part, under Government frank. (FOOTNOTE 13)
(FOOTNOTE 13) Id.
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 perfectly appropriate publicly to congratulate a local business for achieving an award or celebrating a significant anniversary, Members should refrain from overtly commercial promotions.
Another restriction on Government documents derives from Federal law. By statute, documents distributed from executive branch departments or independent agencies may not contain a notice that they are sent with ``the compliments'' of an officer of the Government. (FOOTNOTE 14) Thus, while Members should feel free to distribute to constituents documents that are prepared by other Federal agencies, it would be inappropriate to stamp any such document, or include a cover letter stating that it is being sent with the compliments of the Member.
(FOOTNOTE 14) 44 U.S.C. sec. 1106.
(FOOTNOTE 15) Donnald K. Anderson, Clerk of the House of Representatives, Rules of the House of Representatives, 102d Cong. (1991) (hereinafter House Rules).
(FOOTNOTE 16) See also 31 U.S.C. sec. 1342 (augmentation of appropriations), prohibiting acceptance of voluntary services without specific authorization .
(FOOTNOTE 17) See 2 U.S.C. sec. 59e(d).
The House Commission on Administrative Review, 95th Congress, proposed this rule in order to build 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. (FOOTNOTE 18) The Commission explained the requirement that official expenses of a Member be paid exclusively from official, appropriated funds as follows:
(FOOTNOTE 18) H. Res. 287, 95th Cong., 1st Sess. (1977).
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. (FOOTNOTE 19)
(FOOTNOTE 19) House Comm'n on Admin. Review, Financial Ethics, H. Doc. No. 95-73, 95th Cong., 1st Sess. 18 (1977).
Several rules in addition to Rule 45 implement the Commission's recommendation that private financing of official expenses be eliminated. House Rule 43, clause 7, requires that a Member treat all privately raised funds as campaign contributions. (FOOTNOTE 20) House Rule 43, clause 6, stipulates that campaign funds may be used only for ``bona fide campaign or political purposes.'' Together, these provisions mandate that private funds be used only to support private or political, and not official, activities.
(FOOTNOTE 20) 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 2 of this Manual.
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 would depend on the particular facts of the situation. (FOOTNOTE 21) 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. (FOOTNOTE 22) Similarly, 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. (FOOTNOTE 23)
(FOOTNOTE 21) See 123 Cong. Rec. 5900 (Mar. 2, 1977) (statement of Representative Frenzel).
(FOOTNOTE 22) Id.
(FOOTNOTE 23) Id. at 5908 (colloquy between Representatives Evans and Bauman).
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 cannot, for the purpose of the House rules, be treated as both political and official.'' (FOOTNOTE 24) In a public advisory opinion, the committee noted a Member's option of designating a town meeting 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 Rule 45 or Rule 43, clause 6. (FOOTNOTE 25) These rules do not preclude private individuals or organizations, such as radio or TV stations, from expending funds, without the Member's consent, to promote the previously announced town meeting. (FOOTNOTE 26)
(FOOTNOTE 24) House Comm. on Standards of Official Conduct, Advisory Opinion No. 6 (Sept. 14, 1982) (emphasis in original), reprinted in 128 Cong. Rec. 24349 (Sept. 21, 1982) and at the end of Chapter 8 of this Manual.
(FOOTNOTE 25) Id.
(FOOTNOTE 26) Id.
The legislative history of the unofficial office account prohibition indicates that the injunction applies to accounts maintained by third parties for a Member's benefit, even if they are not maintained for the Member's direct use; and extends to any ``process whereby funds are received or expended'' regardless of whether an actual account or repository is maintained. (FOOTNOTE 27) In an interpretation of the unofficial office account prohibition, the House Select Committee on Ethics of the 95th Congress found the private, in-kind contribution of goods or services for official purposes to be banned under Rule 45. (FOOTNOTE 28) The Select Committee found, however, that the following would not violate Rule 45:
(FOOTNOTE 27) 123 Cong. Rec. 5941 (colloquy between Representatives Panetta and Obey).
(FOOTNOTE 28) Advisory Opinion No. 6 (May 9, 1977), reprinted in Final Report of the Select Committee on Ethics, H. Rep. No. 95-1837, 95th Cong., 2d Sess. app. at 64-66 (1979), and at the end of this chapter.
* Services provided by units of Federal, state, or local government;
* The occasional use of privately owned space to meet with constituents, where no public accommodations are reasonably available;
* 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. (FOOTNOTE 29)
(FOOTNOTE 29) Intern programs are discussed in detail in Chapter 5 of this Manual.
Note that while Members may accept the services of other units of government for official events without violating Rule 45, they may not 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 Committee has determined that accepting tuition, room, and board expenses to attend such a program does not violate Rule 45, provided that the following criteria are met:
(1) The scholarship payments must be made from an accredited, sponsoring educational institution of higher learning;
(2) The program must be primarily of educational benefit to the participants;
(3) Scholarship assistance may not be limited to congressional participants, but must be available to other, similarly situated individuals.
(4) 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
(5) 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 Rule 45 ``is not intended in any way to restrict the Member's use of his personal funds.'' This principle was reiterated in the statutory codification of Rule 45. (FOOTNOTE 30) So, for example, Members may establish petty cash funds out of their personal funds to pay for miscellaneous office expenses. (FOOTNOTE 31)
(FOOTNOTE 30) See 2 U.S.C. sec. 59e(i).
(FOOTNOTE 31) Final Report, H. Rep. No. 95-1837, supra note 28, at 25.
Example 4. Member A would like to decorate his House office in a modern style of furniture not available from Office Furnishings. A may not accept the offer of a furniture store to supply his office with free furniture. A is free to purchase the furniture of his choice with his own money.
Example 5. The local cable television franchise in Member B's district offers her free cable service in her office so that her district staff may monitor events on the House floor. B may not accept the offer.
(FOOTNOTE 32) The House gift rule is discussed in detail in Chapter 2 of this Manual.
(FOOTNOTE 33) Congressional Handbook, supra note 2, sec. 2.III.E.2.e-f, at 2.42; sec. 3.IV.C.2.i-j, at 3.29.
In 1991, the Committee on House Administration issued a new regulation on travel awards acquired while on official business. This regulation states:
Travel entitlements which have accrued to the Member or to his or her employees incidental to having performed or arranged for official travel, whether in the form of free travel, mileage, travel discounts, coupons, memberships, and so forth, may be used at the discretion of the Member or his or her staff. Further, the Committee encourages the official use of all travel awards and benefits, accumulated as a result of official travel, wherever practicable. (FOOTNOTE 34)
(FOOTNOTE 34) Letter to Members from Charles Rose, Chairman, and William M. Thomas, Ranking Republican Member, Comm. on House Admin. (Sept. 10, 1991).
The Ethics Reform Act of 1989 enacted a clarification with respect to the use of official and campaign vehicles. (FOOTNOTE 35) The Bipartisan Task Force wished to approve the incidental use of these vehicles for nonofficial or nonpolitical purposes, respectively. (FOOTNOTE 36) These changes 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. It would be impractical under such circumstances to require the Member to keep switching cars as he or she 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. The Task Force recommended, with respect to nonofficial use of official vehicles, ``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 otherwise not constitute a significant activity or event.'' (FOOTNOTE 37)
(FOOTNOTE 35) Pub. L. No. 101-194, secs. 503, 802(d)-(e), 103 Stat. 1716, 1773 (1989) (codified at 31 U.S.C. sec. 1344 note and 2 U.S.C. sec. 29d note).
(FOOTNOTE 36) House Bipartisan Task Force on Ethics, Report on H.R. 3660, 101st Cong., 1st 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).
(FOOTNOTE 37) Id. at 35, 135 Cong. Rec. H9263.
Example 6. Member A 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 his official expenses allowance. As he drives from the second to the third event, he will pass near his dry cleaner. He may stop to pick up his dry cleaning. This would be a permissible incidental nonofficial use of the car.
Example 7. Member B is using her official vehicle to drive to a number of official events in her district one day, including a mid-morning meeting with the Governor of the state. After they conclude their official business, they wish to continue their meeting over lunch to have a political discussion about state party matters. They may use B's official car to drive to a local restaurant.
The Committee on House Administration is charged with determining appropriate uses of official vehicles, while the Committee on Standards of Official Conduct has the responsibility of deciding appropriate uses of campaign vehicles.
During the 99th Congress, this Committee undertook an inquiry into travel by a Member of the House on corporate aircraft. The Committee found that the Member had improperly accepted free flights while on official travel. The Member reimbursed the corporation, with interest, for the flights. (FOOTNOTE 38)
(FOOTNOTE 38) House Comm. on Standards of Official Conduct, Investigation of Travel on Corporate Aircraft Taken by Representative Dan Daniel, H. Rep. No. 99-470, 99th Cong., 2d Sess. (1986). Reimbursement rates for official travel are determined by the Committee on House Administration.
(FOOTNOTE 39) 31 U.S.C. sec. 1301(a).
The use of official allowances for other than official purposes, including double billing and claims for nonexistent expenses, could subject a Member, officer, or employee to civil litigation under the False Claims Act. (FOOTNOTE 40) 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. (FOOTNOTE 41) 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. (FOOTNOTE 42)
(FOOTNOTE 40) 31 U.S.C. sec. 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.
(FOOTNOTE 41) 31 U.S.C. sec. 3730.
(FOOTNOTE 42) 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).
Committee on House Administration regulations require Members to certify and document all expenses before funds may be disbursed from the official expenses allowance: ``Each voucher shall be signed by the Member certifying that the expenses being submitted for reimbursement are ordinary and necessary business expenses incurred in support of the conduct of his/her official and representational duties to the district from which he/she was elected.'' (FOOTNOTE 43) 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. sec. 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 this section applies to false statements, writings, or other representations made to a disbursing officer of the House of Representatives in furtherance of a fraudulent scheme. (FOOTNOTE 44) In another case, a Federal appellate court 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.'' (FOOTNOTE 45)
(FOOTNOTE 43) Congressional Handbook, supra note 2, sec. 2.III.B.2.c, at 2.19.
(FOOTNOTE 44) United States v. Bramblett, 348 U.S. 503 (1955).
(FOOTNOTE 45) United States v. Diggs, 613 F.2d 988, 997 (D.C. Cir. 1979), cert. denied, 446 U.S. 982 (1980).
Other criminal provisions of the United States Code prohibit:
* making false or fictitious claims upon the United States; (FOOTNOTE 46)
(FOOTNOTE 46) 2 U.S.C. sec. 287.
* conspiring to defraud the Government by obtaining or aiding in obtaining the payment of false claims; (FOOTNOTE 47)
(FOOTNOTE 47) 2 U.S.C. sec. 286; see also 18 U.S.C. sec. 371.
* knowingly stealing or ``converting to [one's] use or the use of another . . . any money or thing of value of the United States. (FOOTNOTE 48)
(FOOTNOTE 48) 18 U.S.C. sec. 641.
(FOOTNOTE 49) 39 U.S.C. sec. 3201.
(FOOTNOTE 50) 39 U.S.C. sec. 3210(b)(1).
The 1991 Legislative Branch Appropriations Act established for the first time an ``official mail allowance'' for franked mail and mandated public disclosure of Members' expenditures under the frank and the contents of their mass mailings. (FOOTNOTE 51) A Member's annual allowance is capped at three times the cost of a first class mailing to every address in the district. Members may supplement their mail allowance from their clerk hire and official expense accounts by up to $25,000 a year but may not use extra mail allowance to supplement their other accounts. The mail allowance may not be used for special mail services such as express mail, certified mail, registered mail, address corrections, postal insurance, and return receipt. These services may be purchased, but only with funds from the official expense allowance. The use of the official mail allowance is jointly regulated by the Committee on House Administration and the House Commission on Congressional Mailing Standards.
(FOOTNOTE 51) See 2 U.S.C. sec. 59e.
(FOOTNOTE 52) See 2 U.S.C. sec. 501(a).
(FOOTNOTE 53) 2 U.S.C. sec. 501(d).
(FOOTNOTE 54) 2 U.S.C. sec. 501(e).
It is illegal to use a franked envelope or endorsement to avoid paying postage on a private letter or package. Criminal fines may be levied for such abuse. (FOOTNOTE 55) The Commission will view as an act of good faith an offer by a Member to pay restitution to the Treasury for the cost of improper use of the franking privilege. (FOOTNOTE 56)
(FOOTNOTE 55) 18 U.S.C. sec. 1719.
(FOOTNOTE 56) House Comm'n on Congressional Mailing Standards, Regulations on the Use of the Congressional Frank by Members of the House of Representatives, ch. 2, sec. 20, at 19 (Sept. 1991) (hereinafter Franking Regs.).
The Commission's regulations are available in booklet form and 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 booklet includes examples of permissible and impermissible items or mailings. The Commission suggests that each Member of the House ``assign a staff member familiar with the franking law and regulations to supervise preparation of the mailing so that obvious violations of the franking law are avoided before submitting the material for an advisory opinion.'' (FOOTNOTE 57)
(FOOTNOTE 57) Id., ch. 3, sec. 5.B., at 24.
The Commission has emphasized that Members remain ultimately responsible for their staffs' decisions on using the frank:
The actual determination of whether or not to send a particular piece of mail under a Member's frank probably will be made by his staff who prepare his mail for delivery. An improper use of the frank by a staff member, ranging from an inadvertent mistake on a single letter to a willful abuse on a mass mailing, will be imputed to his Member, under most circumstances. To help avoid these violations of the franking law, with all of their resultant possible penalties and reflections on the effective administration of his office, a Member should reasonably ensure that his staff knows what kinds of mail are frankable by providing for the training and supervision of these employees and their familiarization with these regulations. Members should encourage their staff, especially in the case of all mass mailings, to consult with and seek the advice of the Commission to the greatest extent possible. (FOOTNOTE 58)
(FOOTNOTE 58) Id., ch. 1, sec. 8, at 4-5 (emphasis added).
(FOOTNOTE 59) 39 U.S.C. sec. 3218. If there is no surviving spouse, then a member of immediate family of the Member may be designated by the Clerk of the House.
(FOOTNOTE 60) 39 U.S.C. sec. 3210(b)(3).
Material relating to the official business of a House committee, subcommittee, or congressional commission may be sent under the frank of the chairman, ranking minority member, or any other member of the entity. (FOOTNOTE 61) As noted in the regulations of the Franking Commission, the authorization to use the franking privilege of a Member extends to official committees created by Congress and made up exclusively of Members but does not extend to informal groups of Members, ``whose business relates to political, party policy, or special interest or regional matters,'' such as Legislative Service Organizations. (FOOTNOTE 62)
(FOOTNOTE 61) Franking Regs., supra note 56, ch. 1, sec. 4, at 2-3.
(FOOTNOTE 62) Id.
The franking law specifically prohibits the loaning of a Member's frank to any group, organization, or person other than the official congressional committees noted above and the Republican conference or Democratic caucus of the House. (FOOTNOTE 63) Franking regulations note that ``[t]his section expressly prohibits the use of the frank for the benefit of charitable organizations, political action committees, trade organizations, and so forth.'' (FOOTNOTE 64) The regulations on the frank also ban providing franked envelopes to members of the public for return mail to a Member or committee of Congress. (FOOTNOTE 65) The House Postmaster provides ``Orange Bags'' and ``Direct District Office Pouches'' for expedited delivery of franked mail between a Member's Washington, D.C. and district offices.
(FOOTNOTE 63) 39 U.S.C. sec. 3215.
(FOOTNOTE 64) Franking Regs., supra note 56, ch. 1, sec. 5, at 3.
(FOOTNOTE 65) Id., ch. 1, sec. 5, at 4.
(FOOTNOTE 66) 39 U.S.C. sec. 3210(a)(2).
2. Newsletters and press releases dealing with the impact of laws on governments and the public, official actions of Members, discussions of proposed or pending legislation, and positions of Members on, and arguments for and against such matters (39 U.S.C. sec. 3210(a)(3)(B)). (FOOTNOTE 67)
(FOOTNOTE 67) See Franking Regs., supra note 56, ch. 2, sec. 4, at 8-12, for examples of frankable and nonfrankable items in newsletters, and guidelines on use of personal references to the Member and pictures or sketches of the Member in newsletters.
3. Questionnaires seeking public opinion (39 U.S.C. sec. 3210(a)(3)(C)).
4. Mail between a Member's various congressional offices (39 U.S.C. sec. 3210(a)(3)(D)).
5. Mail to other Members of Congress and all other legislators (39 U.S.C. sec. 3210(a)(3)(E)).
6. Mail expressing congratulations to a person who achieved some public distinction (39 U.S.C. sec. 3210(a)(3)(F)). (FOOTNOTE 68)
(FOOTNOTE 68) For these purposes, graduation from high school is considered a public distinction.
7. Mail consisting of Federal regulations or other publications containing general information (39 U.S.C. sec. 3210(a)(3)(G)).
8. Mail containing nonpartisan voter registration or election information (39 U.S.C. sec. 3210(a)(3)(H)).
9. Mail containing biographical material or pictures in Federal publications or in response to specific requests (39 U.S.C. sec. 3210(a)(3)(I)-(J)). (FOOTNOTE 69)
(FOOTNOTE 69) See Franking Regs., supra note 56, ch.2, sec. 14, at 17; see also id. sec. 4(c), at 10-12, as to guidelines and requirements for pictures and sketches of the Member in newsletters.
10. The Congressional Record (39 U.S.C. sec. 3212a).
11. Public documents printed at the order of Congress (39 U.S.C. sec. 3211).
12. Seeds and agricultural reports (39 U.S.C. sec. 3213).
2. Mail containing greetings from a Member's family unless it is a brief reference in otherwise frankable mail (39 U.S.C. sec. 3210(a)(5)(B)(i)).
3. Any card expressing holiday greetings (39 U.S.C. sec. 3210(a)(5)(B)(iii)).
4. Mail containing reports of a Member's or his family's activities other than in connection with official functions and activities of the Member (39 U.S.C. sec. 3210(a)(5)(B)(ii)).
5. Mail containing solicitations for political support for the sender or any person or party or a vote or financial assistance for any candidate (39 U.S.C. sec. 3210(a)(5)(C)). (FOOTNOTE 70)
(FOOTNOTE 70) For example, references to upcoming campaigns, filings for reelection, or expressions of gratitude for election are nonfrankable items in newsletter or news releases.
6. Mail that is purely personal to the sender or to any other person (39 U.S.C. sec. 3210(a)(4)).
7. Mail expressing condolences to a person who has suffered a loss or expressing congratulations on a personal distinction (Franking Regs., ch. 2, sec. 8, at 14).
In 1980, former 2 U.S.C. sec. 439b, which prohibited any solicitations under the frank, was repealed. (FOOTNOTE 71) The Franking Commission has, however, retained the policy against solicitations in its regulations. (FOOTNOTE 72) No material that is not independently frankable may be inserted into a franked envelope.
(FOOTNOTE 71) Pub. L. No. 96-187, sec. 105(1), 93 Stat. 1354 (1980).
(FOOTNOTE 72) Franking Regs., supra note 56, ch. 2, sec. 6, at 13.
(FOOTNOTE 73) 39 U.S.C. sec. 3210(a)(5)(D).
The franking law and the Rules of the House of Representatives (FOOTNOTE 74) require that before any mass mailing is made, a sample or description of the material to be mailed must be submitted to the Franking Commission for an advisory opinion on frankability. The cost of preparing and printing a mass mailing may be defrayed only from appropriated funds, (FOOTNOTE 75) and these expenses are not reimbursable from the official allowance unless the mailing is frankable. Private funds may not be used to prepare, to print, or to distribute any material for a franked mass mailing. The Commission on Administrative Review believed it ``necessary to make a clear separation between the public purpose and private interest in the use of the frank, and, therefore, private funds should not be used to print `official documents.''' (FOOTNOTE 76)
(FOOTNOTE 74) 39 U.S.C. sec. 3210(d)(6)(A); House Rule 46, cl. 3.
(FOOTNOTE 75) 39 U.S.C. sec. 3210(f); House Rule 46, cl. 4.
(FOOTNOTE 76) Financial Ethics, H. Doc. No. 95-73, supra note 19, at 19.
House rules and the franking law also restrict franked mass mailings during political campaigns. A Member who is a candidate for a statewide office may send franked mass mailings only within his or her own congressional district. (FOOTNOTE 77) Further a Member may not send any mass mailings under the frank during the 60 days immediately before any primary or general election in which the Member is a candidate. (FOOTNOTE 78)
(FOOTNOTE 77) 39 U.S.C. sec. 3210(a)(6)(A)(ii); House Rule 46, cl. 5.
(FOOTNOTE 78) 39 U.S.C. sec. 3210(a)(6)(A), (C); House Rule 46, cl. 6.
(FOOTNOTE 79) 39 U.S.C. sec. 3210(a)(7), (d)(1); Franking Regs., supra note 56, ch. 2, sec. 4.B(3), at 23.
(FOOTNOTE 80) 39 U.S.C. sec. 3210(d)(4); Franking Regs., supra note 56, ch. 2, sec. 4.B(4), at 23.
(FOOTNOTE 81) Congressional Handbook, supra note 2, sec. 2.III.F.16.c, at 2.58.
(FOOTNOTE 1) Issued May 9, 1977.
Acceptance of in-kind services for official purposes.
FOR ISSUANCE House Rule XLV 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 XLV refers to an unofficial office account as a fund, repository, or process whereby funds are received or expended. The reasons for adopting new Rule XLV, 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 peddling'' 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 XLV 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 XLV 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-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 purpose of supporting the activities of a Federal or State officeholder which contains excess campaign funds . . . '' (11 CFR 113.1b). Such excess campaign funds include contributions of ``anything of value.'' Therefore, according to the FEC definition, 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 XLV, 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 XLV. 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 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 XLV 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 XLV 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.
For purposes of House Rule XLV, the private contribution of in-kind services for official purposes is prohibited. However, Rule XLV does not apply to services provided by federal, state and local government agencies, or to the occasional use of privately-owned meeting space where no public accommodations are reasonably available for meeting with constituents. Nor does Rule XLV 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.
Pursuant to the authority conferred on the House Office Building Commission by the act of March 4, 1907 (34 Stat. 1365, as amended (40 U.S.C. 175)) the following rules and regulations are promulgated governing the use and occupancy of rooms and spaces, including terraces, entrances, lobbies, foyers, corridors, cafeterias, restaurants and areas appurtenant thereto, in the Cannon, Longworth, and Rayburn House Office Buildings, in the House Annexes, the House of Representatives Garages, and the Capitol Power Plant:
(1) Property damage: Willful destruction, damage, desecration or removal of any Government property or part thereof is prohibited.
(2) Photographs: Photographing, televising, recording, or broadcasting of committee proceedings is not permitted, except as provided for by the Rules of the House. Visitors are permitted to take photographs of the public areas in the House office buildings with hand-held cameras if the photographs are not intended for commercial purposes. The use of flash equipment or other special photolighting devices, tripods, or other bulky accessory equipment is not permitted unless special permission is obtained from the House Office Building Commission. Applications for such special permission should be made to the Speaker.
(3) Soliciting, commercial ventures, and other nongovernmental activities: The soliciting of alms and contributions, commercial soliciting, and vending of all kinds, the display or distribution of commercial advertising, the collecting of private debts, or the distribution of material such as pamphlets, handbills, and flyers, in any of the areas covered by these regulations is prohibited. Staff organizations, duly recognized by the House Office Building Commission, may charge a fee for attendance at any function sponsored by the organization in conducting the function. This fee must be closely calculated to cover only the costs incurred by the organization in conducting the function. This section does not apply to national or local drives for funds for welfare, health, and other purposes sponsored or approved by the House Office Building Commission, or to personal notice posted by employees on authorized bulletin boards.
(4) Use of meeting rooms: The use of meeting rooms under the jurisdiction of the House Office Building Commission is restricted to Congressionally related uses or purposes which serve Members, Committees, Officers or organizations of the Congress. Conditions and procedures for use of the rooms may be promulgated by the Commission. If costs for catering services are to be defrayed by a non-governmental entity, that entity will be required to pre-pay an amount equal to fifty percent of the anticipated catering costs of the event. The remaining costs are payable at the time of the event.
(5) Weapons and explosives: No person, except Members of the Capitol Police and individuals authorized by law, or by regulations promulgated by the Capitol Police Board, shall enter any of the areas covered by these regulations who has in his possession, openly or concealed, any dangerous or deadly weapon, explosive, incendiary, or electronic device, and the use or discharge thereof is prohibited.
(6) Disturbances: The making of any oration, or the utterance of any loud, threatening or abusive language or sound, or the use of any device or sound amplification system which emits loud, threatening, or abusive language or sound, is prohibited.
(7) Obstruction: Assembling, loitering and congregating singly or in groups, in or about the entrances and exits or obstructing the foyers, corridors, and rooms covered by these regulations, or displaying any flag, banner, or device designed or adapted to bring into public notice any person, party, organization, or movement, is prohibited.
(8) Compliance with regulations: Persons entering, in or on the areas covered by these regulations shall comply with all official signs of a prohibitory or directory nature, and, during emergencies, with directions of the Capitol Police or other authorized authority. Any person who fails or refuses to comply with these regulations, or who fails or refuses to comply with directives of the Capitol Police or other authorized personnel, shall be subject to arrest and prosecution.