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September 16, 2014

September 16, 2014

Can Answering a Campaign Call Break the Law? | A Question of Ethics

Q. As an aide to a Member of the House, I have a question about the rule requiring the separation of campaign work from official House activities. In our office, we are generally careful about keeping these separate. But, one problem we run into time and again is that people outside the House are not at all familiar with the distinction. For example, we frequently receive calls or emails about the Member’s upcoming campaign at our Member’s House office. We don’t want to run afoul of the rules. But, we don’t want to ignore folks either. What can we do?

A. Campaign season is upon us! Does it ever really go away?

Yes, campaigning has become a year round activity, and members and staffers must always be mindful of rules governing campaign activity. But, as November approaches, the increased activity and urgency makes the risk of violations grow even greater.

While there are many, many rules governing campaign activity by House staffers, your question concerns the prohibition against using official House resources for campaign purposes. Let’s take a look at that rule and see how it might apply to your quandary.

Broadly, official House resources may only be used for official House purposes. They may not be put to personal use or used for campaign activities. These restrictions derive from the general rule that congressional allocations of funds must be used for the purpose for which they are allocated.

As you point out, many House staffers and campaign staffers are familiar with the prohibition against using House resources for campaign purposes, and responsible House offices and campaigns take care to comply with it. For example, a compliant House staffer would never perform campaign activities while at work or using official House resources. Staffers who wish to work on campaigns generally know that they must do so outside their congressional office and on their own time.

Unfortunately, though, many people who contact these offices, including constituents, are not aware of these rules. In fact, some even seem unaware there is any distinction at all between someone acting in their official capacity as opposed to for campaign purposes. So, when these people contact a House office with a campaign question, what can you do? Do you have to ignore them?

The short answer is no. The rules do not require incivility. But you do need to be careful about how you respond.

Last month, the House Committee on Ethics issued a memorandum about campaign activity that might help. It contains no new rules, but instead is a “reminder to the House about commonly encountered issues” related to campaign activity. In addition to a top 10 list of “things to remember” about campaign activity, the memorandum contains a useful series of questions and answers with tips from the committee itself.

One question is right on point. It asks: “What do I do if people call, email, stop in, or write to the congressional office about campaign activities?” The memorandum answers generally that congressional offices receiving such communications may refer them to the appropriate campaign office. Conversely, campaign offices may refer to their respective congressional offices any communications it receives regarding officially related matters. All such referrals, the memorandum says, should come at the expense of the campaign.

The memorandum offers several tips for how congressional offices can handle these types of communications without running afoul of the law. Broadly, it says the “best practice” is to use the least amount of official resources necessary to forward the communications to where they belong. More specifically, for calls, the memorandum says  the campaign should bear the expense of any long-distance calls in response to messages left at the office related to campaign activity. For letters, a congressional office should consider having on hand envelopes and stamps paid for by the campaign that can be used in responding to letters about the campaign to inform the sender to contact the campaign. And, for emails, congressional offices may simply forward the email to a campaign email address, and then the campaign may respond.

Note that there can be severe sanctions for those who blur the lines between campaign activity and official work, including steep fines and even jail time. When answering the phone, the rules don’t require you to be rude. Just careful.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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Influence Industry Remembers ‘Unique’ Thomas H. Boggs Jr. | K Street Files

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Boggs, who died on Monday, is remembered warmly by his colleagues. (CQ Roll Call File Photo)

Thomas H. Boggs Jr. had the clout of an oracle, the air of a senator and a joie de vivre that gleefully declared his family’s Louisiana roots.

The son of the late House Majority Leader Thomas Hale Boggs and Rep. Lindy Boggs built his firm into the top grossing K Street practice. He was an institution himself, representing trial lawyers, businesses and associations until his death Monday of an apparent heart attack at age 73. Lawmakers and presidents of both parties sought more than his campaign cash; they wanted his counsel. He gave them both.

“He was a pioneer in our industry,” said Haley Barbour, founder of the BGR Group and the former Republican governor of Mississippi. “But for most of us who knew him, he was just a great friend and very, very smart.” Full story

September 15, 2014

Lobbyist Thomas H. Boggs Jr. Dies at Age 73

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Boggs died of an apparent heart attack (CQ Roll Call File Photo).

Thomas Boggs Jr., partner at Patton Boggs, a major lobbying firm in Washington, died Monday at the age of 73.

The Washington Post first reported the news that Boggs died at his home in Chevy Chase, Md. Boggs’ sister, journalist Cokie Roberts, told the Post that her brother died of an apparent heart attack.

Boggs joined Patton Boggs as a partner in 1966 and became one of the must influential lawyers and lobbyists in Washington. His firm merged earlier this year with Squire Sanders to become Squire Patton Boggs.

Journalist Carl Bernstein wrote in 1998 that Boggs was “Washington’s premier agent of influence.”

Boggs’ family has been influential in Washington since the mid-20th Century. His father, Thomas Hale Boggs Sr., served in Congress for nearly 60 years and was the House majority leader until his disappearance while on a flight to Alaska in 1972. Following her husband’s death, Corinne Claiborne “Lindy” Boggs joined the House, where she served for more than 15 years. She died last year.

Sen. Mark Begich, D-Alaska, whose father, Rep. Nick Begich, D-Alaska, was on the same fateful Alaska plane as the senior Boggs, released the following statement about the junior Boggs’ death: “I was saddened to learn of the passing of respected lawyer and advocate Tommy Boggs. Our two families have known each other for a long time and have been through much together.  Tommy was a larger than life personality in the nation’s Capitol, yet was gracious and generous and visited Alaska at my invitation. My family will always have a special connection to the Hale Boggs family, including the late Congresswoman Lindy Boggs. Deborah and I will be keeping them in our thoughts.”

Boggs made an unsuccessful run for Congress in 1970. But since then he has wielded considerable power in Washington. Patton Boggs now employs nearly 350 lawyers around the world. Boggs himself represented dozens of corporations, state and foreign governments and trade associations.

Related Stories:

Squire Sanders, Patton Boggs Decide NOT to Call The Whole Thing Off

 

Lindy Boggs’ Old-World Path to Congress Blazed a Trail for the New

Patton Boggs Retained for Chris Christie Bridge Fight

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War Powers Resolution Nags a Reluctant Congress | Procedural Politics

In his Sept. 10 address to the nation, President Barack Obama asserted he already had authority to go after the Islamic State of Iraq and the Levant but would welcome congressional action to underscore the U.S. commitment. Leaders of both parties in Congress, while supportive of the president’s aims, visibly balked at holding a direct vote to authorize military action, at least before the midterm elections. It was a rare profile in bipartisanship if not courage.

To date, the president has been pursuing a limited mission to protect American personnel and threatened religious minorities in Iraq. Obtaining a full-fledged congressional debate and vote for wider military action would both educate the public and fulfill Congress’ responsibilities under the war powers resolution. Failure to pass such a measure, however, would throw the administration’s foreign policy credibility into further disarray.

A year to the day before his Sept. 10 address to the nation, the president asked Congress for authority to enforce his “red line” against Syria for using chemical weapons on its own people. Congress made clear then it didn’t want such a vote and that, if taken, it would fail. Before the matter came to a head the confrontation was preempted by a Russian-brokered deal with the Assad regime.

By contrast, in 2011, the president avoided seeking such a vote from Congress for the NATO air strikes against Libya’s Gadhafi regime to head-off an anticipated massacre of civilians. The president leaned instead on support from the Arab League and United Nations.

The War Powers Resolution was enacted by Congress in 1973 over President Richard Nixon’s veto. Nixon and all his successors called the act an unconstitutional intrusion on their authority as commander-in-chief to protect the nation. Especially objectionable was the requirement that, absent congressional approval, troops must be automatically withdrawn from hostilities after 60 days, or 90 days if the president certifies additional time is necessary to ensure their safe withdrawal.

The act was plagued from the start by ambiguities because a House-Senate conference committee did not fully resolve differences between the bodies. One section specifies “only” three situations in which the president can commit troops to hostilities: A declaration of war, specific statutory authorization, or to repel a direct attack on the U.S., its territories or armed forces.

Another section requires the president to report on situations in which U.S. forces “are introduced into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances,” or “into the territory, airspace or waters of a foreign nation while equipped for combat” — all without specific reference to any attack on the U.S., its territories or armed forces.

Not surprisingly, a group of 15 House members initially voted against the legislation for fear future presidents would consider it a three-month free pass to wage war anywhere for any reason without congressional acquiescence. That concern has proved especially prescient.

Presidents have generally honored the law’s reporting requirements when committing U.S. forces to hostilities or imminent hostilities. In the meantime, unless specifically asked for authority by the president, Congress prefers to avoid a vote on extending troop commitments beyond the deadline and does not insist on their automatic withdrawal thereafter. The unauthorized bombing war over Libya, for example, went on for seven months as the mission morphed from humanitarian to regime change.

Obama’s claim that he has authority for the latest military campaign under the 2001 Authorization for the Use of Military Force ignores Congress’ specific rejection in that instance of broader language requested by the Bush administration. In addition to requesting authority to “use of all necessary force” against those responsible for planning, authorizing, committing, aiding or harboring those who committed the 9/11 attacks, the administration wanted blanket authority to “to deter and preempt any future acts of terrorism or aggression against the United States.” Congressional negotiators said “no.”

The Constitution is clear that the power to declare war resides in Congress. History shows, however, that the residents aren’t always home or answering the door when a president or circumstances come knocking.

Don Wolfensbeger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

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September 9, 2014

Kevin McCarthy Pledges Return to Regular Order | Procedural Politics

Newly minted House Majority Leader Kevin McCarthy, R-Calif., began his first day on the job promising committee process, regular order and civility — a good start and tall order.

In his Aug. 1 Washington Post op-ed, the California Republican observed that committees “act as idea factories for policies from both sides, and as majority leader I will commit to the committee process and regular order.” Moreover, he recognized that building relationships is essential “to help restore civility,” and said that while “friendships alone won’t break Washington’s logjam, … a sense of mutual respect is necessary for constructive dialogue.”

In those simple phrases, McCarthy summed-up what many both inside and outside Congress, including the past four speakers, have been saying for years is wrong with Washington and what should be done to fix it. One of the most recent outside critiques to that effect comes from the Bipartisan Policy Center’s Commission on Political Reform, co-chaired by former Senate majority leaders Trent Lott and Tom Daschle, former Sens. Olympia Snowe and Dirk Kempthorne, and former Agriculture Secretary Dan Glickman.

The 29-member bipartisan commission, with which I had the pleasure to work, issued its final report on June 24, “Governing in a Polarized America: A Bipartisan Blueprint to Strengthen Our Democracy.” The three-part analysis covers problems with elections, Congress and citizen engagement. In the Congress piece, the commission identifies “the re-election imperative” as driving the modern culture of Congress, with power now concentrated in party leaders at the expense congressional committees and “a culture of positive legislating.”

The commission does not recommend a comprehensive set of formal rules changes for what it sees as a dysfunctional Congress but instead proposes a series of common sense building blocks to engender trust among members, across parties and branches, and through a fully-functioning committee system.

Five-day workweeks, with three-weeks in Washington synchronized between the bodies, followed by one-week district and state work periods, are urged to enable Congress to properly perform its legislative responsibilities. A two-year budget and appropriations process is put forward both to ensure greater fiscal regularity and give authorizing committees time to carry-out their policymaking and oversight roles.

Periodic bipartisan caucus gatherings, both to explore areas for joint action and to build closer relationships among members across party lines are proposed, as are more frequent bipartisan leadership meetings with the president. Majority and minority party members alike should be afforded greater opportunities to participate in committee, floor and conference deliberations to foster consensus building around legislative products that can garner public acceptance.

How is it that that so many leaders of both parties have periodically called for restoring the regular order but have failed to make good on their promises? It’s not a matter of hypocrisy, a lust for personal power or opposition party resistance. It is due more to a culture of convenience that has grown up around non-deliberative legislative shortcuts that free-up members to spend much of their time in Washington raising campaign funds for themselves and parties, followed by four-day weekends in their home states mending political fences (and raising more campaign cash).

The re-election imperative and culture of convenience are powerful counterforces against restoring a culture of legislating. To make that transition will not require a major overhaul of House and Senate rules but simply a strong commitment by leaders and followers alike to reactivate a legislative process already in place and bind it with the types of relationships the new majority leader says are essential to a civil, functioning body.

Cultural change is an arduous challenge but most members realize our system cannot go on as it has –hyper-polarized and gridlocked — and survive. Members must work at reestablishing the respect and confidence of the American people and that means working once again as a full-time, fully representative legislative body. Happy Constitution Day next week!

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

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September 8, 2014

Constitutional Amendment Debate Roils ACLU | Rules of the Game

The emotional debate over free speech versus free political spending, which erupted onto the Senate floor this week, exposes a deep rift on Capitol Hill and at the nation’s leading civil rights group, the American Civil Liberties Union.

“There is a very, very significant divide within the ACLU on this,” said New York University law professor Burt Neuborne, one of six prominent former ACLU officials who wrote to members of the Senate Judiciary Committee on Sept. 4 to publicly denounce the national ACLU’s campaign finance position. The letter was released as the Senate prepared to take up a resolution authored by New Mexico Democrat Tom Udall to amend the Constitution to permit political spending limits, something the Supreme Court has ruled violates the First Amendment.

“While, as present and former leaders at the ACLU, we take no position in this letter on whether a constitutional amendment is the most appropriate way to pursue campaign finance reform, we believe that the current leadership of the national ACLU has endorsed a deeply contested and incorrect reading of the First Amendment as a rigid deregulatory straitjacket that threatens the integrity of American democracy,” read the letter, which was signed by Neuborne, the ACLU’s former national legal director, and by its former executive director, Aryeh Neier, and its onetime general counsel, Norman Dorsen, among others.

In an interview with CQ Roll Call, Neuborne said he spearheaded the letter in response both to a June ACLU letter to the Judiciary panel strongly opposing a constitutional amendment, and to conservative leaders’ tendency to invoke the ACLU in denouncing the amendment. Full story

Niger Innis Hopes to Expand Tea Party Base and Influence | Downtown Moves

With an eye on looming legislative battles over immigration, the Export-Import Bank and foreign policy, Niger Innis is on a mission to prove that the tea party is still a force to be reckoned with on Capitol Hill.

“Liberals and GOP political elites alike have simultaneously assailed the tea party movement as racist, radical, and now irrelevant,” Innis said in a July statement announcing that he is the new executive director of TheTeaParty.net, one of the country’s largest tea party organizations.

An African-American man raised in Harlem, Innis plans to prove those commentators wrong by promoting an inclusive message. Full story

September 2, 2014

Moelis CEO Donated Thousands to Cantor Before Hiring Him

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(Tom Williams/CQ Roll Call File Photo)

The head of the investment bank that just hired Republican Eric Cantor for more than $1 million a year has been a loyal political supporter of the former House majority leader from Virginia.

Ken Moelis, chairman and CEO of Moelis & Co., gave $5,000 to Cantor’s leadership political action committee, Every Republican is Crucial, just 12 weeks before he reportedly opened talks with Cantor about joining the bank. Moelis also personally gave the maximum $5,200 in this election cycle to Cantor’s campaign committee. Cantor’s new gig as vice chairman and managing director for the bank will earn him $400,000 this year, with a $400,000 signing bonus and $1 million worth of stock.

The Cantor donations were among $100,000 that Moelis gave to Republican candidates and party committees in the 2012 and 2014 election cycles, according to Federal Election Commission data tallied by the Center for Responsive Politics. Full story

August 11, 2014

Antonia Ferrier Settles Into New Role at Forbes-Tate | Downtown Moves

ferrier008 072814 445x299 Antonia Ferrier Settles Into New Role at Forbes Tate | Downtown Moves

Ferrier, at her new Forbes-Tate digs downtown. (Tom Williams/CQ Roll Call)

Veteran Capitol Hill staffer Antonia Ferrier is still adjusting to her new role as a lobbyist.

The energetic former staffer is now a senior vice president at Forbes-Tate, a public policy consulting firm in D.C. Although Ferrier is excited about her new job, she said, “the Senate and the Hill will always feel a little bit like home.”

Ferrier is not able to use her Hill contacts for business yet, because staffers-turned-lobbyists are banned from contacting colleagues for one year. But she can use her experience in both chambers to advise clients about the right time to lobby lawmakers. “As a consultant you just help provide the right context, the right background, the right knowledge to help them determine whether to engage or not,” Ferrier said. Full story

Number of Laws Congress Enacts Isn’t the Whole Picture | Procedural Politics

The 113th Congress may well become the least productive Congress in modern history based on the number of bills signed into law. That is the measure many observers use to assess the institution’s productivity. But it does not provide the most complete or accurate picture.

As of Aug. 1, only 142 bills have been enacted into law, of which 118 or 83 percent have been non-controversial and bipartisan in nature. For that latter category, I look at public laws that initially pass the House under the suspension of the rules process that allows only 40 minutes of debate, no amendments and requires a two-thirds vote for passage. The most notorious suspension bills, accounting for 14 percent of all suspension laws in this Congress, are those naming (or renaming) post offices, federal buildings, court houses and veterans’ facilities after notable constituents.

Other suspension bills strike gold coins, designate memorials, monuments or historic sites, convey federal lands or buildings to localities, or deal with national parks, wilderness areas or Indian tribes. A few suspensions reauthorize expiring agencies and programs, usually without major changes. I once presented a paper on the increasing use of suspension bills, “Suspended Partisanship in the House: How Most Laws Are Really Made,” which a noted political scientist later cited as evidence Congress is not totally partisan.

A three-dimensional look at the changing numbers, size and content of laws over the last three decades (1983-2012) reveals the following: the number of public laws has dropped 62 percent, the number of pages per statute has increased by 52 percent and minor laws (suspensions) have jumped from 35 percent to 79 percent of all laws. Put another way, Congress is shying away from more substantive, controversial legislation today in favor of passing home crowd pleasers.

Divided party government and the fierce competition for control of both chambers every two years are largely responsible for the discrepancy between legislative input and final output as both parties use legislation more for campaign messaging than actual policymaking. This is evident in the number of measures passed versus those enacted as of Aug. 1. The House passed 509 bills, including 39 measures from the Senate, while the Senate passed 224 bills, including 116 from the House.

When one subtracts the 106 House originated bills and 36 Senate bills that have become law, there remain 354 House passed bills still pending in the Senate and 72 Senate passed bills pending in the House (including comprehensive immigration reform).

The disequilibrium is further illustrated by the Senate’s failure to pass any of the 12 regular appropriations bills, even though the House has passed and sent over seven of the measures and the Senate appropriations committee has reported eight.

It was once a joke among House members that the Senate is the place where good House bills go to die. That observation no longer evokes even a chuckle from the lower body. Senators of both parties have also expressed frustration about the paltry number of bills considered and amendments they have been allowed to offer over the last several months. The exceptions are the scores of amendments the majority leader has offered to “fill the tree” and block others’ amendments.

The majority blames the inaction on minority obstruction in the form of threatened filibusters and politically toxic amendments while the minority blames majority trepidation about taking any action that might have political consequences. The problem is, Congress is supposed to be the place where politically consequential actions are taken, not a safe house for the politically faint of heart. Past Congresses cast tough votes and let the electoral chips fall where they may. Today, members are apparently counting on voters not calling in their chips for lack of sufficient active players.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

August 4, 2014

McCain Staffer Rachael Dean Lands at Javelin | Downtown Moves

dean012 072514 445x310 McCain Staffer Rachael Dean Lands at Javelin | Downtown Moves

Dean, seen here in the Russell Senate Office Building. (Tom Williams/CQ Roll Call)

Seven years ago, 20-year-old Rachael Dean entered the doors of Sen. John McCain’s campaign war room just as the Arizona Republican’s presidential race was getting off the ground.

Now Dean, who first started as an intern, has left her post as press secretary in McCain’s press shop to take a shot at working in the private sector. After going from tackling graveyard shifts in campaign war rooms to fending off feeding frenzies beside McCain at the 2012 Republican Convention, she starts Monday at Alexandria-based Javelin, a public relations, literary and digital agency started by two Donald Rumsfeld team alumni.

When Dean hit it off with founders Keith Urbahn and Matt Latimer, she decided to make the switch to Javelin — seeing the move as “the perfect next step.” Dean said Javelin, whose past projects include revamping Foreign Policy’s website, treats every client with careful precision. Full story

July 29, 2014

Mini-Mega Donors Dominate Downtown Giving | K Street Files

In the jet-set world of the country’s biggest political donors, K Street can seem puny.

Individual lobbyists typically do not reach into the highest levels of personal campaign contributions; that’s an echelon billionaires dominate.

But K Street’s elite mini-mega donors have blown beyond the former federal “max out” limitation of $123,200 that the Supreme Court threw out this spring in its McCutcheon v. Federal Election Commission decision.

Now that lobbyists — and anyone else — can give to all congressional candidates, as well as to party coffers and political action committees, K Street’s biggest donors have to search for new ways of saying “no.” And sometimes that translates into a simple “yes.”

“With me, it’s always a matter of the good causes that come along that may make you do one more,” said former Rep. Vic Fazio, D-Calif., a senior adviser with Akin Gump Strauss Hauer & Feld LLP. With the Senate in play and races likely to tighten up as the midterm elections approach, Fazio said it isn’t easy to say no.

“A time may come, in October, where I will be incommunicado,” Fazio said, half jokingly. “Out of phone range.”

kategraphpic072914 445x340 Mini Mega Donors Dominate Downtown Giving | K Street Files

(Chris Hale/CQ Roll Call)

Full story

July 28, 2014

Speaker’s Lawsuit Against Obama Is a Longshot | Procedural Politics

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(Tom Williams/CQ Roll Call)

Speaker John A. Boehner’s plan to sue the president for overstepping constitutional boundaries has produced a cascade of volume and verbiage in media echo chambers. In a memo to his colleagues, Boehner explained, “President Barack Obama has declined to faithfully execute the laws of our country — ignoring some statutes completely, selectively enforcing others, and at times, creating laws of his own.” The president in return has called the suit a “stunt” and waste of taxpayer dollars.

I give the speaker two cheers for standing up for the institution of Congress in the face of what he perceives as questionable unilateral actions by the president to get what he wants. The president did give Congress fair warning of his intentions last January when he said, “We’re not just going to be waiting for legislation in order to make sure we’re providing Americans the kind of help they need.” He added, “I’ve got a pen and I’ve got a phone…and I can use that pen to sign executive orders and take executive actions….”

The speaker’s initiative is designed in part to divert and relieve pressures from some in his party who want to impeach the president — something that would be politically suicidal and downright stupid. However, I have withheld the third cheer for the speaker’s stand because I think the judicial route is a long shot and the wrong shot.

It is a long shot because the odds are heavily against Congress being granted standing as an injured party in the president’s delay of the health care act’s employer mandate which is the target of Boehner’s suit. Even if Congress clears that hurdle, the courts would likely dismiss the suit as a “political question” between the branches — something in which courts have traditionally been reluctant to intervene.

It is the wrong shot because Congress should not be entrusting its fate to the third branch of government. If Congress clears the first two hurdles, the Supreme Court could well rule against it: hard cases make bad law and mad lawmakers. Even if not, such a precedent can only enhance the powers of the courts if either of the first two branches can go running to them any time it has a dispute with the other branch and expect intervention.

I am reminded of hearings before the Joint Committee on Congressional Operations in February 1974 on “Congress and Mass Communications.” The hearings were prompted by a persistent 20th century concern that the legislative branch was losing public confidence, power and stature vis-a-vis the executive, in part because the president dominates the airwaves (though President Richard Nixon’s press at the time wasn’t all that great in the wake of Watergate scandal revelations).

My boss then, GOP Congressman John B. Anderson of Illinois, cautioned the committee against falling into the “media mandate trap” of tailoring legislative behavior and actions to maximize media coverage. He quoted Yale law professor Alexander Bickel’s testimony earlier in the decade on war powers: “The way for Congress to resume control over the foreign and war policy of the United States is to resume. The way to redress the balance is to redress it — by action.” Paraphrasing Bickel’s sentiments, Anderson said: “The way for Congress to make the news is to make news. The way to redress the balance is to redress it — by action.”

House Republicans are understandably angry over the president’s repeated assertions they have not taken action to help the middle class when in fact they have enacted several jobs-related bills and passed dozens of others that have gone nowhere in the Senate. Meantime, the president is doing what his predecessors have done by acting unilaterally to implement his agenda.

Whether Obama is pushing the constitutional envelope or shredding it is a matter of interpretation. Regardless, the two branches can better address their differences by reengaging each other in the national interest than by waging perpetual spitting matches in the national media.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

July 22, 2014

GOP Struggles With Fundraising for Women’s Initiatives | Rules of the Game

WVPOL14 012 070414 445x294 GOP Struggles With Fundraising for Womens Initiatives  | Rules of the Game

Capito raised more than her opponent in the race for Senate in West Virginia. (Bill Clark/CQ Roll Call File Photo)

It’s been a promising year for Republican women who have set out to fix their party’s “woman problem,” but not good enough for their bank accounts.

Republicans launched a new crop of super PACs, recruitment programs and messaging campaigns to boost the GOP’s female candidates and win over women who vote. The latest such effort, an unrestricted super PAC unveiled in June by former Hewlett-Packard CEO Carly Fiorina, cleared $1 million in its first four weeks.

“We cannot permit liberal orthodoxy to marginalize women or suppress their enthusiasm for our candidates,” declared Fiorina, chairwoman of the American Conservative Union Foundation, in the mission statement for her new Unlocking Potential Project. The Unlocking Potential PAC’s top donors last month were Marmik Oil Co. President Michael Murphy and his wife, Arkansas designer Sydney Murphy, who each gave $500,000. Full story

When Is a Tweet an Ethics Violation? | A Question of Ethics

Q. As a staffer for a Member of the House, one of my responsibilities is to run his official Twitter and Facebook accounts, and I have a question about permissible uses of those accounts. The Member occasionally likes to help political allies by making public endorsements during their campaigns. I figure it is okay to announce these via Twitter as I have seen other Members do it, but another staffer in our office said the rules might not allow it. It’s not really against the rules to tweet endorsements of other candidates, is it?

A. Are there restrictions on members’ use of Twitter? You bet there are.

The restrictions derive from a fundamental principle about the permissible uses of federal funds: “Appropriations shall be applied only to the objects for which the appropriations were made.” Put another way, when Congress allocates federal funds for a particular purpose, the funds may be used only for such purpose.

This restriction extends to resources purchased with official funds. The House Committee on Ethics has said “official resources of the House must, as a general rule, be used for the performance of official business of the House,” and not campaign or political purposes. Moreover, the Ethics Committee requires all official resources be used in accordance with the Members’ Handbook, published by the Committee on House Administration.

The rapid rise of social media in recent years has raised new questions about how to apply these rules, many of which were created before social media’s advent. According to a Congressional Research Service report, as of January 2012, more than three quarters of members had official Twitter accounts. Two and a half years later, that figure may be approaching 100 percent.

While the House Ethics Manual does not specifically address the permissible content of members’ official media accounts, the Members’ Handbook does. It allows members to establish “social media accounts,” which the handbook defines as “profiles, pages, channels or any similar presence on third-party sites that allow individuals or organizations to offer information about themselves to the public.” However, and this is important, “Member-controlled content on Social Media Accounts is subject to the same requirements as content on Member websites.”

Specifically, content of websites, and therefore social media accounts, must “be in compliance with Federal law and House Rules and Regulations applicable to official communications and germane to the conduct of the Member’s official and representational duties.” Content must not include “personal … or campaign information” nor “grassroots lobbying or solicit support for a Member’s position.”

Although not specifically addressing social media accounts, the House Ethics Manual states that “the general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking.”

Taken together, the Ethics Committee guidance and the Member’s Handbook suggest that endorsing campaigns via official social media accounts, such as Twitter, could indeed draw the attention of the Ethics Committee. While the committee has never admonished any member for sending a campaign tweet from an official House Twitter account, you should not interpret this as a license to use official Twitter accounts for non-official purposes. Social media such as Twitter and Facebook are still relatively new, and the committee has previously taken action against misuses of older forms of communication. In March 1996, the committee advised a member that he had violated rules governing the use of official resources by using a House fax machine to send a mass communication on House letterhead criticizing a potential campaign opponent.

The safer course, then, is to do what many members are already doing: Use official social media accounts for permissible official purposes, and establish other social media accounts — e.g., personal or campaign accounts — for other purposes.

Notably, the Members’ Handbook’s restrictions on the content of social media accounts do not govern these unofficial accounts. Of course, if you do go that route, it is important to remember to distinguish between official and unofficial accounts.

Specifically, the handbook states that “Members should ensure their social media URLs and account names reflect their position.” Conversely, members’ personal and campaign accounts should not give the impression that they are the members’ official account.

As you can see, in managing your members’ social media accounts, you’ve got your hands full.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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