Constituent Service

Topics

Overview

The First Amendment of the U.S. Constitution guarantees the “right of the people . . . to petition the government for a redress of grievances.”  Responding to inquiries of petitioners and assisting them before executive or independent government officials and agencies is an appropriate exercise of the representational function of each Member of Congress, as well as an important function of congressional oversight. 

In 1992, the Senate adopted S. Res. 273, which created Senate Rule 43.   The Rule prohibits Members from basing the decision to assist a petitioner before federal agencies and officials on whether the petitioner has contributed to the Member’s campaign or causes.  The Rule further cautions that a Member must make a reasonable effort to assure that representations made in the Member’s name by any Senate employee are accurate and conform to the Member’s instructions and to Senate Rule 43.

  • Merits of the Request

The Committee has recommended that prior to intervention with a government agency, a Member should consider both the merits of the constituent’s case, as well as the kind of agency involved, and the nature of the agency proceedings.  A review of the case might include consideration of whether the Senator’s office would perform the same service for any constituent similarly situated; the extent to which the proposed action or pattern of action deviates from normal office practice; and, if the Senator or staff member knows that an individual is a contributor, the history of donations by a contributor and the proximity of money and action, i.e., how close in time the Senator’s official action would be to his or her knowledge of or receipt of contribution(s).

  • No Special Treatment

The decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest. 

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Permissible Interventions with Federal Agencies

Generally, Senators have broad discretion in deciding whether and how to assist constituents.   As stated in Senate Rule 43, it is a legitimate function of a Senator’s office to intervene with officials of the executive branch and the independent regulatory agencies on behalf of individuals when the facts warrant.  Senate Rule 43 further provides that:

At the request of a petitioner, a Member of the Senate, or a Senate employee, may communicate with an executive or independent government official or agency on any matter to —

(a)  request information or a status report;

(b)  urge prompt consideration;

(c)  arrange for interviews or appointments;

(d)  express judgments;

(e)  call for reconsideration of an administrative response which the Member believes is not reasonably supported by statutes, regulations or considerations of equity or public policy; or

(f)  perform any other service of a similar nature consistent with the provisions of this rule.

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Prohibited Interventions with Federal Agencies

Federal Agency Proceedings

The Committee has recommended that Members not intervene if an executive branch agency is engaged in an ongoing enforcement, investigative, or other quasi-judicial proceeding.  Offices should first consult with the agency’s Congressional Liaison if there is any question about whether official intervention would be permissible. 

Ex Parte Communications

Federal law prohibits ex parte communications with an agency employee reasonably expected to be involved in decision-making regarding the merits of a proceeding.  Ex parte communications are oral or written communications made without proper notice to all parties and which are not on the public record.  This prohibition against ex parte contacts applies only to formal agency adjudications and rulemaking proceedings that are adjudicative in nature (so-called formal on-the-record rulemaking), both of which require that the agency’s decision be based only upon a record developed during a trial-like hearing. This provision was intended to ensure that decisions required by law to be made solely on the basis of a public record will not be influenced by secret discussions that some of the parties to the proceeding, or the public, do not know about. 

Status inquiries are considered an exception to the prohibition on ex parte communications.  However, only requests for status reports that do not affect the way a case is decided are exempted.

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Intervening with the Courts

The general advice of the Ethics Committee concerning pending court actions is that Senate offices should refrain from intervening in such legal actions (unless the office becomes a party to the suit, or seeks leave of court to intervene as amicus curiae) until the matter has reached a resolution in the courts. The principle behind such advice is that the judicial system is the appropriate forum for the resolution of legal disputes and, therefore, the system should be allowed to function without interference from outside sources.

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Intervening with Nongovernmental Entities
Senators are often asked to intervene between two private parties.  There is no Senate rule that prohibits Senators from intervening in private party matters.  Senators may intervene if they believe intervention is in their state’s interest.  However, Senators should be cautious when intervening in private party matters.   The Committee recommends that before intervening in private matters Senators and staff consult with the Ethics Committee. 
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Letters of Recommendation

Generally, there are no restrictions on who a Member may recommend for employment.  Official Senate letterhead, however, may only be used when the person being recommended is either a current or former Senate employee or when the Member’s connection to the person being recommended is official in nature.  For example, a Member may use Senate letterhead on behalf of individual whom the Member came to know through the person’s contact with the Member’s Senate office.  The frank may only be used when the person being recommended is a current or former employee, including an intern or fellow, in the Member’s Senate office.

When the Member’s connection to a person being recommended is personal, Senate letterhead and the frank may not be used.  Instead, a Member should use personal letterhead or letterhead that states the Senator’s name followed by the words, “United States Senator.”  Such letterhead should be purchased with a Member’s campaign funds or personal funds, and the letterhead may not bear the Senate seal or any likeness thereof.  A depiction of the Capitol dome would be appropriate for such letterhead. 

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Constituent Services - FAQs

Q:  Can the Senator contact an executive branch agency on behalf of a constituent?  

A:  Senators have broad discretion regarding whether and how to help their constituents.  However, Senators are not permitted to make decisions to provide or deny assistance based on party affiliations and contributor status.  In addition, the Committee has recommended Senators consider whether the agency is performing a quasi-judicial, adjudicative, or enforcement function and should not contact an agency involved in such functions.   Before contacting an executive branch agency on behalf of constituents, offices should first contact the Congressional liaison for that agency to see if such intervention would be permitted at that time. 

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Rule XLIII

Representation by Members53

1. In responding to petitions for assistance, a Member of the Senate, acting directly or through employees, has the right to assist petitioners before executive and independent government officials and agencies.

2. At the request of a petitioner, a Member of the Senate, or a Senate employee, may communicate with an executive or independent government official or agency on any matter to—

(a) request information or a status report;

(b) urge prompt consideration;

(c) arrange for interviews or appointments;

(d) express judgments;

(e) call for reconsideration of an administrative response which the Member believes is not reasonably supported by statutes, regulations or considerations of equity or public policy; or

(f) perform any other service of a similar nature consistent with the provisions of this rule.

3. The decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest.

4. A Member shall make a reasonable effort to assure that representations made in the Member’s name by any Senate employee are accurate and conform to the Member’s instructions and to this rule.

5. Nothing in this rule shall be construed to limit the authority of Members, and Senate employees, to perform legislative, including committee, responsibilities.

6.54 No Member, with the intent to influence solely on the basis of partisan political affiliation an employment decision or employment practice of any private entity, shall—

(a) take or withhold, or offer or threaten to take or withhold, an official act; or

(b) influence, or offer or threaten to influence the official act of another.

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53 Rule established by S. Res. 273, 102–2, July 2, 1992.

54 Paragraph 6 added pursuant to Pub. L. 110–81, Sep. 14, 2007.