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 rule16 and various federal statutes17 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.).
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 95th Congress, the Select Committee on Ethics concurred in this position.20
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 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.
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.
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.
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.
The Ethics Reform Act of 198924 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 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,â€? 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:
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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.
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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.
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Regulations of the House Office Building Commission generally prohibit soliciting and other nongovernmental activities in facilities of the House of Representatives.28
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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.
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 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.
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 servicesâ€? 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.
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.
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.
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.
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.
19 123 Cong. Rec. 5900 (Mar. 2, 1977).
20 H. Rep. 95-1837, supra note 15, at 16.
21 See H. Res. 201, 102d Cong., 1st Sess. (1991).
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, 101st Cong., 1st Sess. § 303, 103 Stat. 1716, 1746-47 (Nov. 30, 1989), as amended by Pub. L. 101-280, 101st Cong., 2d Sess., 104 Stat. 149 (May 4, 1990).
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.
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.â€?) (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].
30House Rule 25, cl. 5(e)(1).
31Code of Ethics for Government Service, ¶ 5, supra note 8.
32House Rule 23, cl. 3.
33See ¶ 4 House Building Comm’n Regs., supra note 28.
34 See Code of Ethics for Government Service, ¶ 5 supra note 8.
35 18 U.S.C. § 205(h).
36 See House Rule 24; Members’ Handbook, supra note 4.
37 See Members’ Handbook, supra note 4. |