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October 25, 2014

Are Members of the House Allowed to Hire Relatives? | A Question of Ethics

Q. I have a question about a recent “60 Minutes” segment I saw about nepotism among members of Congress. As I understand the report, it said that there are some circumstances in which nepotism is legal. This confused me. As a former House staffer, I’m pretty sure members are not allowed to hire relatives to work in their offices. What’s the deal? May members of the House hire relatives to work for them?

A. Yes and no.

You are correct that federal law prohibits members from hiring relatives to work in their House offices. But no law prevents members from employing relatives for their election campaigns. Here’s why:

Federal law broadly forbids a government official, including a member of Congress, from hiring or promoting any “relative” to any agency over which the official exercises authority or control.  Someone counts as a relative of a member under this restriction if they are a “father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.”

Ever since 1967, when the anti-nepotism statute was enacted, it has been illegal for a member to hire or promote anyone meeting this definition.

Congress takes this prohibition very seriously, with mechanisms in place to ensure compliance. For example, every month, as part of the official payroll authorizations, a member must certify that the employees on the payroll do not meet the definition of “relative.” False certifications can result in severe penalties.

House regulations also prohibit a member from using official funds to benefit a relative by way of a contract or otherwise. Unless an exception is provided by some other federal law, “no Member, relative of the Member, or anyone with whom the Member has a professional or legal relationship may directly benefit from the expenditure” of a member’s official expense allowance.

Despite all of these restrictions on hiring members’ relatives or paying them with official funds, federal law imposes virtually no restrictions on hiring relatives to work on members’ campaigns.

The use of campaign funds is governed by federal election law and overseen by the Federal Election Commission, which accords candidates “wide discretion in making expenditures to influence their election.” While FEC regulations prohibit “personal use” of campaign funds, they also state that payments to relatives do not count as personal use if “the family member is providing bona fide services to the campaign.”

As a result, it’s not uncommon for relatives to work on members’ campaigns. As the “60 Minutes” segment pointed out, critics of this practice argue that many campaign donors have no idea that the money they contribute to a member’s campaign might be used to compensate relatives.

Interestingly, critics also sometimes cite an opposite problem — that campaign donors do know that their contributions benefit a member’s relatives. The concern is that donors seeking to curry favor with a member can do so by contributing money that ultimately benefits relatives. There are strict limits on the gifts members may accept, and critics have argued that allowing campaign donations to benefit a member’s family is a potential way around those gift restrictions.

In defense of the practice, members who hire relatives for their campaigns have said that the work is legitimate and someone has to do it. Members should be allowed to hire the people they trust most, they argue. Moreover, existing law already mitigates the risk of abuse by prohibiting members’ campaigns from paying relatives more than they are worth.

Federal regulations state: “If a family member provides bona fide services to the campaign, any salary payment in excess of the fair market value of the services provided is personal use,” and therefore prohibited.

The FEC affirmed this is in a 2001 advisory opinion stating that a member’s campaign committee wouldn’t violate federal election regulations by hiring his wife as a consultant. The opinion cautioned, however, that the campaign’s contract with the member’s wife should conform to standard industry practice and contain terms customarily found in agreements between paid consultants and campaigns.

So, you are correct that members may not hire relatives to work in House offices. Yet they may hire relatives to work on their campaigns. Neither circumstance seems likely to change any time soon.

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