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October 20, 2015

FEC Clarifies Rules for Food and Drink at Fundraisers | A Question of Ethics

Q.  As someone who has worked on campaigns for Members of the House for many years, I have a question about campaign fundraisers. I had always thought that when donors attend a fundraiser where food and drink are served, their entire ticket price counts as a contribution from the donor. I heard recently though that when donors pay for the cost of food and drink they enjoy at a fundraiser, campaigns do not have to treat the payments as contribution. That seems rife for abuse. Is it true?

A.  Yes and no. A recent opinion issued by the Federal Election Commission says that, in limited circumstances, donors may pay for food and drink at campaign fundraisers without the payments counting as “contributions.” But, the circumstances in which this is permissible are narrowly defined, so be careful.

As you know, federal election law requires campaigns to record and disclose the source and amount of contributions they receive. It also imposes strict limits on the amounts that individuals may contribute to a campaign. In the current election cycle, an individual donor may contribute no more than $2,700 to a candidate’s committee, per election.

Candidates of course raise a substantial portion of funds via fundraising events. Typically, when a candidate’s committee hosts a fundraiser, the committee treats the full price of each ticket as a contribution from the purchaser. Federal law defines a contribution as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” “Anything of value” includes an in-kind contribution, as well as “[t]he entire amount paid to attend a fundraiser or other political event.”

Hillary Rodham Clinton’s campaign committee recently asked the FEC to clarify application of these rules to fundraisers where ticket prices do not include food, drink, and valet parking services, but instead attendees have the option to purchase their own such food, drink and parking services while in attendance. In making the request, the committee’s attorney argued that attendees’ payments for their own food, drink and parking, at their own discretion, should not count as contributions. “If an event attendee purchases a hot dog at a cart that happens to be set up outside of a Campaign event,” he wrote, “clearly the payment for the hot dog is not considered an in-kind contribution to the Campaign.” On-site purchases of food and beverages, he argued, should be no different.

The FEC agreed. Under the circumstances described in the campaign committee’s request, the commission said, payments for food, drink and valet parking do not count as contributions to the committee.

In reaching its conclusion, the commission first affirmed that if a committee includes the cost of food or beverages in the charge that donors must pay to attend the event, an attendee’s payment of that charge constitutes a contribution as a payment “to attend a fundraiser. The commission also warned that its conclusion about the treatment of attendees’ payments for their own food and beverage was based on the campaign committee’s representation that there would “not be any monetary consequences” to the committee related to whether fundraiser attendees chose to purchase food or beverages.

This point is significant, and the FEC took it to mean that whether attendees purchase or do not purchase food at the fundraiser would “not in any way affect the Committee’s costs for the event.” Thus, for example, the event venue could not offer the committee any discounts based on attendees’ actual or anticipated purchases of food and drink. And, there could not be a minimum charge for food and drink that the committee would be obligated to pay if attendees did not purchase enough food and drink. “Assuming that attendees’ purchases do not factor into the pricing of these or other charges to the Committee,” the commission said, “the purchases by attendees of their own food or beverages would not constitute in-kind contributions.”

The reasoning as to valet parking services was similar. The committee had told the commission that it did not plan to request the provision of valet parking services at the fundraiser. Thus, the commission concluded, “the attendees’ payments for their own valet parking will not relieve the Committee of expenses it would not otherwise incur, and those payments therefore will not be in-kind contributions.”

For campaigns looking to get the most bang for their buck out of fundraisers, this is good news. Provided they comply with the commission’s criteria, it’s one less expense to incur when hosting a fundraiser.

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

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September 8, 2015

Can Bartering Official Acts Ever Be Legal? | Question of Ethics

Q. I am hoping you can explain the recent ruling on Rod Blagojevich’s appeal of his corruption convictions. I know that the court upheld nearly all of his convictions, but I was interested to see that the court threw out several as well. Why did it do this, and is there any significance to the decision?

A. Some political trades are legal. Some are not. That distinction is at the heart of last month’s decision by the Seventh Circuit Court of Appeals in the case of former Illinois Gov. Rod Blagojevich.

Full story

July 14, 2015

What Does Bob McDonnell’s Case Mean for Members and Staffers? | Question of Ethics

Q. I am not an attorney, but I have several friends who are, and they seem to think that the latest development in Bob McDonnell’s legal case is significant. I know that McDonnell lost the appeal of his conviction on corruption charges. But, can you explain the legal significance of the case to a non-lawyer like me? Should it mean anything to those of us on the Hill?

A.  Yes, it should. Though Bob McDonnell was a state government official — governor of Virginia — he was tried in federal courts by federal prosecutors for violations of federal laws, the same laws that apply to government officials all around the country, including members and staffers on the Hill. Therefore, the recent decision by the 4th U.S. Circuit Court of Appeals in Richmond, Va., to reject McDonnell’s appeal could have consequences well beyond Virginia.

The issue in the case that many attorneys have been watching closely is what kinds of actions are covered by federal prohibitions on bribery. Federal law provides that public officials may not corruptly demand, seek or receive anything of value “in return for … being influenced in the performance of any official act.”

In the McDonnell case, there was little dispute that he and his wife received things of value from a Virginia businessman, including loans, trips, a Rolex watch and more. At issue was whether the gifts were part of an agreement between McDonnell and the businessman to obtain influence over anything that would qualify as an official act.

The government contended McDonnell took many acts to help the businessman’s efforts to launch a new health product. McDonnell argued on appeal, however, that nothing he did to help the businessman could be considered an official act under the law. The government’s refusal to distinguish “between official acts, and every other act an official takes,” McDonnell’s appeal brief said, “led it to indict and convict Governor McDonnell for conduct that has never been criminal.” The government’s “boundless definition” of official act, the brief said, “would make virtually every elected official … a criminal.”

Other former officials voiced similar concerns, including a group of 44 former state attorney generals, who filed a brief in support of McDonnell’s appeal. The court that convicted McDonnell “handed federal prosecutors virtually unfettered discretion to prosecute state officials for political courtesies and other innocent acts that are a routine part of American political life,” the brief argued. “No lunch with a lobbyist is safe.”

The appeals court disagreed, stating, “what the Government had to show was that the allegedly corrupt agreement [between McDonnell and the businessman] carried with it an expectation that some type of official action would be taken.” Whether McDonnell actually took such action was beside the point, the court said. Nevertheless, the government exceeded its burden, the court concluded, by showing McDonnell used the power of his office to influence governmental decisions in three matters within his “sphere of influence” — whether researchers at Virginia’s state universities would initiate a study of the product the businessman sought to launch; whether a state commission would allocate grant money to study one of the product’s key ingredients; and whether the health insurance plan for state employees would include the product in its coverage. With respect to studies by university researchers, for example, the court said McDonnell took steps such as “asking a staffer to attend a briefing, questioning a university researcher at a product launch, and directing a policy advisor to ‘see’ him about an issue.” By doing so, McDonnell “exploited the power of his office in furtherance of an ongoing effort to influence the work of state university researches.” This was “more than enough to support the jury’s verdict,” the court said.

It is possible that the Supreme Court could still reverse the 4th Circuit Court’s decision. And, even if it does not, the legal consequences of the decision remain to be seen. Some attorneys have disputed whether the impact will be as drastic as others have feared.

Nevertheless, there is one issue on which there seems to be a consensus: unless overturned, this type of victory in a high-profile public corruption case could embolden federal prosecutors to pursue future cases that test the limits of what counts as an official act for purposes of federal restrictions on bribery. Members and staffers take note.

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

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June 23, 2015

Are Lobbyists Banned From House and Senate Gyms? | A Question of Ethics

(CQ Roll Call File Photo)

A walking machine at the House Fitness Center. (CQ Roll Call File Photo)

Q. I am a former officer of the House now working as a lobbyist in Washington, D.C. I love my job, but sometimes wonder if we lobbyists are unfairly singled out and discriminated against. One example I recently learned about is that former members and officers who become lobbyists are apparently not allowed to use House exercise facilities, while other former members and officers are. Is this really true?

A. Lobbyists do get a bad rap, don’t they? At the federal level, many laws impose restrictions that apply to lobbyists but not to anyone else. And, in states, it can be even worse, where “lobbyist” can verge on being a bad word. Some states even require lobbyists to wear the virtual equivalent of a scarlet “L” whenever they are engaged in lobbying. Connecticut, for example, requires anyone engaged in lobbying to wear a badge identifying themselves as a lobbyist, with the “color, material, and other requirements of such badge … prescribed by regulation.” In 2011, a lobbyist was fined $10,000 for lobbying without a badge.

So, what about House exercise facilities? Full story

June 2, 2015

May Judicial Candidates Be Prevented From Seeking Campaign Funds? | A Question of Ethics

Q. I just read that in some states, people running for judicial positions may not seek contributions to their campaigns. This struck me as nonsensical, but the article said that the U.S. Supreme Court recently upheld the prohibition. Is it really the case that states prohibit judicial candidates from seeking campaign contributions? And, why would the Supreme Court allow these prohibitions?

A. You are campaigning for office, but you cannot seek money for your campaign. That would put a bit of a damper on things for our nation’s politicians, wouldn’t it?

Full story

April 28, 2015

May a Staffer Ask for a Free Meal? | A Question of Ethics

Q. I do not work on the Hill, but I have several friends who do, and I have a question about when it’s okay to buy them a meal. I had lunch the other day with a chief of staff of a member of the House of Representatives. He forgot his wallet and so asked if I could by lunch. I don’t know anything about government ethics rules, but he said it was fine because the rules allow staffers to accept meals and gifts worth less than $50 from anyone other than a lobbyist, and our tab was $40 after tip. I went ahead and paid based on this, but I later asked another staffer, and he said it was probably not okay for me to have done so. What gives?

A. Thanks for the great question, which illustrates a limitation on the exceptions to the gift rule that can be easy to overlook.

Full story

April 14, 2015

What Are the Charges Against Menendez? | A Question of Ethics

Q. As a resident of New Jersey, I have seen many different perspectives on the recent indictment of Bob Menendez. Some here in New Jersey are supporting him, while others have called for his resignation. What I want to know is what exactly the charges are against Menendez and what the government needs to prove. I’ve generally heard it referred to as a bribery case, but are there any other charges against Menendez? Full story

March 17, 2015

May Lobbyists Lobby Their Spouses? | A Question of Ethics

Q. I read that Rep. [Edward] Whitfield, R-Ky., is under investigation for allowing his wife to lobby his office on behalf of her employer. Is it illegal for someone to lobby their spouse? And if so, does that mean lobbyists who are married to Members of Congress cannot discuss policy with their spouse or have any contact with their spouse’s staff? That sounds like a difficult rule to follow. Is it really the case?

A. Last November, the House Ethics Committee announced it had decided to conduct a more in-depth review of allegations that Whitfield broke ethics rules by permitting his wife to lobby himself and his staff. The committee had been referred the matter by the Office of Congressional Ethics, which investigates ethics complaints to determine those that warrant further review by the committee. In accordance with ethics rules, when the committee announced its decision, it also released the OCE’s investigative report, which explains the allegations against Whitfield.

Full story

February 17, 2015

Can Selling Something Be an Ethics Violation? | A Question of Ethics

(Tom Williams/CQ Roll Call File Photo)

(Tom Williams/CQ Roll Call File Photo)

Q. I read that Rep. Aaron Schock, R-Ill., may face an ethics investigation for selling his house for too high a price. As a longtime House staffer, this worried me. I’ve sold several big-ticket items over the years — cars, a boat, houses, and while I’ve always tried to make sure that the selling price is not too low, it never occurred to me to ensure that the price is not too high. Can it really be an ethics violation to get too good of a deal on something I sell?

A. Good question. In theory, it is conceivable that selling something could give rise to an ethics violation. House gift rules prohibit members and staffers from accepting anything of value — including money — unless an exception applies. One of the exceptions allows receipt of something for which the recipient pays market value. Conversely, the House Ethics Manual says an improper gift may exist when a member or staffer is sold property at less than market value, “or receives more than market value in selling property.” Full story

February 3, 2015

Bundling Campaign Contributions Is Legal, but Carries Risks | A Question of Ethics

Q. I read about a recent court case where a lobbyist was sent to jail for arranging for a large group of people to make contributions to the campaign of Sen. Harry Reid, D-Nev. I had always thought that it was okay for someone to help organize a big group of campaign donors. Isn’t this known as “bundling,” and isn’t it legal?

A. Yes and yes. Bundling is a common practice and is, in fact, legal. But, the case you’re describing involved not merely bundling, but a more nefarious practice.

First, let’s talk about bundling. As you know, a bundler is someone who gathers campaign contributions from people within a particular organization or community and presents them to a campaign. Campaigns value bundlers for their connections and ability to drive large amounts of revenue. Broadly speaking, with some limitations, bundling is legal.

One of the reasons bundling can be important is because the law limits the amount of money an individual can contribute to a particular campaign. The idea is to prevent individuals from having undue influence over a candidate. In light of the limits, sometimes a supporter tries to help a candidate by encouraging other individuals to contribute to the candidate’s campaign. In 2007, Congress enacted legislation recognizing the practice of bundling, but requiring lobbyists who bundle contributions to make public filings disclosing the contributions they bundled.

None of this is at issue in the recent case you describe, in which a federal appeals court in Nevada upheld convictions of a Nevada man who did something much different than mere bundling. The case involved F. Harvey Whittemore, whom the court described as a “prominent attorney, developer, and lobbyist who has long been active in Nevada politics and political fundraising.” In 2007, Whittemore promised to raise $150,000 in contributions for Reid’s 2010 re-election, and told the campaign he would do so by a specific campaign finance filing deadline. Shortly before the deadline, the campaign still had not received any of the money Whittemore promised, and twice contacted him about it.

So far, so good.

Just days before the deadline, however, Whittemore gave $145,000 to 17 relatives and people he employed. Those who were single received $5,000, married couples received $10,000. Each individual recipient then contributed $4,600 to Reid’s campaign — the maximum amount permitted by law. Whittemore assembled the contributions and sent them all to Reid’s campaign, just beating the deadline.

Recipients of the money from Whittemore testified that he encouraged them to contribute to Reid’s campaign or, in some cases, actually told them the money he gave was intended to cover a contribution to the campaign.

This is not mere bundling. Rather, a jury in Nevada federal court concluded it is illegal circumvention of the limits on campaign contributions. Specifically, the court convicted Whittemore of violating the limits on his own campaign contributions as well as a statute that forbids making a contribution in the name of another.

The recent news about the case concerned the federal appeals court’s rejection of Whittemore’s appeal. While Whittemore’s attorneys made several arguments on appeal, a key one was that the money he gave to friends and employees was an “unconditional gift.” In short, the argument went, the transfers were gifts with no strings attached. As such, because the money became the recipients’ own money, and because Whittemore did not condition the gifts on any subsequent campaign contributions, he had not violated the campaign finance restrictions, even if he suggested that recipients consider making contributions.

The appeals court rejected the argument. It concluded that the key issue “is the source of the funds, regardless of the status of the funds under state property law at the time of the donation.” The jury had determined that Whittemore knew the named contributors were not in fact the “true source” of the contributions. Whittemore’s transfers of money to the recipients, the court said, amounted to “contributions” under federal law.

Whittemore was sentenced to two years in jail. Legitimate bundlers of campaign contributions need not worry about facing a similar fate. But, bundlers better make sure the money they are bundling is not really their own.

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

The 114th: CQ Roll Call’s Guide to the New Congress

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November 11, 2014

What Does a Gift Tag Have to Do With Breaking the Law? | A Question of Ethics

Q. I worked on the campaign of someone who has just been elected to the House of Representatives for the first time, and I expect to work for him in the House as well beginning in January. I recently met with some experienced staffers to learn the ins-and-outs of working on the Hill. One thing they filled me in on is how strict the gift limitations are, but what really stuck out was that the permissibility of a gift supposedly can depend somehow on the language of the tag or card that comes with it. I had trouble wrapping my head around this. Is this really true?

A. First, congratulations to you and your boss. Exciting times ahead.

As for your question: Yes, believe it or not, the language on a card attached to a gift can impact the legality of accepting it. In fact, some language on a gift tag could expose you and the donor to serious liability.

There are several sources of the limitations on gifts and other benefits members and staffers may receive, and it is important to consider them all any time you are offered a gift. One is the House gift rule. Broadly, the gift rule forbids you from accepting anything of value from anyone unless an exception applies. There is a long list of exceptions, including things such as gifts from family members, widely available opportunities and more. You should certainly familiarize yourself with the rule and the exceptions as you prepare for your job on the Hill.

But, complying with the law doesn’t end there. Just because a gift meets an exception to the House gift rule does not mean that it might not violate some other restriction. Bribery law, for example, criminalizes gifts given to influence an official act regardless of whether they might meet a gift rule exception.

The law that it sounds like the staffers you met with have in mind is a subsection of the federal bribery statute governing what have become known as “gratuities.” It provides that, as a government official, you may not accept anything of value given because of an official act you perform. Some have described it as a prohibition on a reward for an official act that has already been performed. The Supreme Court has said what makes a gratuity illegal is “a link between a thing of value and a specific official act for or because of which it was given.”

What does this have to do with gift tags? The House Ethics Manual has a few examples to illustrate.

Suppose you help introduce a bill, and you do so solely because you and your member believe it will be good for the country. Suppose also that there is a lawyer who favors the bill because it will benefit some of his clients. The lawyer sends you a small gift that meets one of the exceptions to the House gift rule, and attaches a note stating, “In appreciation for your good work on the bill.” According to the ethics manual, this would violate the ban on gratuities, and you would have to return the offering in question to the lawyer.

Another example involves a caseworker who helps a constituent with a Veterans’ Affairs claim. The following week, the constituent sends a modest restaurant gift certificate, with a note saying: “I’ll never be able to repay you for what you’ve done for me.” Again, the manual says this is an illegal gratuity and the caseworker must return it to the constituent.

In contrast, suppose during the holidays you receive a small gift from a lawyer that again meets one of the exceptions to the gift rules. This time, the gift tag says, “Season’s Greetings to you and peers!” Accepting this gift, the manual says, “is not prohibited by the bribery and illegal gratuity statutes.” This is because there is no apparent link between the gift and any official act.

Does any of this really matter? Yes.

Violations of the bribery and gratuity statues are federal crimes, and carry stiff penalties including fines and jail time. Several members who have been convicted of violations of the gratuity ban have gone to jail.

So, as you tackle all of the tasks that you and your member must accomplish to prepare for your time on the Hill, here’s one more to add to your to-do list. Learn the rules about gifts, bribery, and gratuities. They matter. And, some of them may surprise you.

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


How to Land a Job Working for a New Member of Congress

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October 14, 2014

Are Members Permitted to Help Companies in Which They Own Stock? | A Question of Ethics

Q. I heard that Rep. Tom Petri, R-Wis., may face ethics discipline because he assisted companies in which he owned stock. I know that Members are not supposed to use their position for their own personal gain, but I didn’t realize that meant they are disqualified from taking action on behalf of any companies in which they might own stock. Is that really the rule?

A. No, it is not. A member’s mere ownership of stock in a company does not disqualify the member from taking official acts on the company’s behalf. But, as the Petri matter illustrates, members should take special care when they assist companies in which they happen to own stock. Exactly what that means, unfortunately, is less than clear.

In a report made public last month the Office of Congressional Ethics, which filters allegations of misconduct for review by the House Committee on Ethics, concluded there is substantial reason to believe Petri “improperly performed official acts on behalf of companies in which he had a financial interest.” The OCE therefore recommended further review by the House Committee on Ethics, which it is now considering.

There is no dispute that Petri took official acts for companies in which he owned stock. That is allowed. At issue in the Petri case is whether he did so “improperly.” That is not. Full story

December 10, 2013

The Year in Congressional Ethics | A Question of Ethics

A famous Tacitus quote about government corruption raises a chicken and egg question. One common translation is: “The more corrupt the state, the more numerous the laws.” But it is also sometimes cited as, “The more numerous the laws, the more corrupt the state.”

So, which is it? Does corruption beget laws? Or, do laws beget corruption?

Perhaps both are right. That might explain why, in an era of expanding legislation and regulation, government ethics always seems to be a hot issue. When this column began after the ethics boom of late 2006, government corruption dominated headlines and exit polls. Seven years later, the frenzy over government corruption may have calmed a bit. But, those years have added thousands of new laws and regulations to a sum that was already too large to count. If Tacitus is right, the ever-growing number of laws in this country could mean that government corruption is ever-growing, too, notwithstanding reformists’ efforts to nip around its edges.

A look back at the year in congressional ethics provides no shortage of support for Tacitus. I asked several top practitioners of political law to name the government ethics story of the year, and there are many.

Ken Gross, a former associate general counsel of the Federal Election Commission, now of Skadden, cited Jesse L. Jackson Jr. as the saddest scandal of the year. In October, the former congressman was sentenced to more than two years in prison after pleading guilty to crimes that the judge described as using campaign funds as a “personal piggy bank.” His wife received a one-year sentence for her own role in the scandal. “Rising to the level of congressman and carrying the name of a famous civil rights leader proved to be too much,” Gross said, “ending in an inconceivable crash landing.”

Robert Walker, former chief counsel of the Senate Ethics Committee and now of Wiley Rein, added the Rick Renzi scandal to the year’s list of biggest stories. Over the summer, the former representative was convicted of 17 violations of federal criminal law, including extortion, bribery, insurance fraud, money laundering and racketeering. Three months later, he was sentenced to three years in prison. After the sentencing, prosecutor Mythili Raman said that Renzi “fleeced his own insurance company to fund his run for Congress, and then exploited his position for personal gain.” “Oh, how the — kind of — mighty are fallen,” Walker said.

Walker also cited another story for its significance “from a process point of view” — the confirmation of the Office of Congressional Ethics “as a fixture” in the ethics process. The OCE was created in 2008 to review allegations of misconduct by House employees to determine if they warrant further review by the House Ethics Committee. In the OCE’s early years, its relationship with the House Ethics Committee was not always smooth. Now, said Walker, “the OCE and the House Ethics Committee have arrived at a modus vivendi allowing them to exercise their overlapping — some might still say redundant — investigative authorities.”

Less than 60 years ago, there were no government entities specifically charged with considering allegations of misconduct by House employees. Today there are two.

Stefan Passantino of McKenna Long & Aldridge, who runs the Pay to Play Law Blog, agrees that improved process is the government ethics story of the year. In addition to the “growing acceptance by all of the role the OCE plays in the process,” Passantino cited the “workmanlike resolution of matters by the two ethics committees.”

But another story late in the year may put some of those developments in doubt. Last month, Dan Schwager left his post as chief counsel of the House Ethics Committee. Described by Walker as “an experienced professional and former prosecutor,” Schwager was widely respected in the field. If the lack of major public controversy is one measure of success of his job, Schwager’s two-and-a-half-year tenure was a successful one. His departure, Walker said, “could wind up being quite significant, depending on the direction the committee takes in hiring his successor.”

Indeed, as we look ahead to 2014, the filling of the chief counsel vacancy in the House Ethics Committee will be the story to watch. Yet, regardless who takes the job, government ethics is sure to remain as relevant as ever. Tacitus said so, however you translate him.

Correction: Dec. 11, 11:30 a.m.

A previous version of this article misstated the year of the ethics boom. It was 2006, not 1996.

October 29, 2013

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. Full story

October 15, 2013

Keep Working While Furloughed? | A Question of Ethics

Q. I am a staffer for a member of the House. The government shutdown has caused most members’ offices to furlough staffers, and I am one of them. Unfortunately, there are a number of things I was working on before the shutdown, and I’d like to be able to make some progress on them while on furlough. I’m not being paid either way, so I figure I might as well be productive. The problem is that I’ve been told I’m not supposed to do any work while out. Is this really prohibited?

A. Answering this question reminds me of the type of thing I might tell my young children when using reverse psychology. “Do not do any work. Whatever you do, you may not do any work.”

Believe it or not, those are essentially the marching orders for staffers who have been furloughed. A general prohibition prevents all nonessential federal workers, including nonessential House staffers, from working while on furlough.

The House Administration Committee confirmed this in guidance recently issued to members. “If I furlough an employee, can he/she still come into work?” asks one question in the guidance. The answer? “No, if you have decided that an employee is non-essential, he/she cannot perform official duties, (either at the office or at home).”

There are several reasons for this. One is an old law known as the Anti-Deficiency Act, which has its origins in 19th-century budget battles between the executive branch and Congress. Under the Constitution, no money may be drawn from the Treasury unless appropriated by Congress. This means that Congress generally has discretion over which government services to fund and how much to fund them.

During the 19th-century budget battles, executive branch departments would seek ways around the financial constraints of running out of funds appropriated to them. (Sound familiar?) One method was to allow employees to perform government services on a volunteer basis. When the volunteers later asked to be paid for their services, there would be a “deficiency” of funds. Congress would sometimes feel compelled to fill that deficiency so that the volunteers could receive retroactive payment for their services.

The Anti-Deficiency Act prohibits this practice. Specifically, it states that a federal official “may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” Federal officials have interpreted this to mean that when there is a lapse in appropriations for government services, they may not allow those services to continue on a volunteer basis.

Note that this doesn’t mean that all government services must shut down whenever there is a lapse in appropriations. As a 1995 memorandum by the Office of Management and Budget observed, the commonly used term “government shutdown” to refer to a lapse in appropriations is in fact an “entirely inaccurate description.” A true government shutdown, the memo states, would mean no air traffic control, FBI, customs services, border control, stock markets or VA hospitals, among other vital services. A “true shut down of the federal government,” the memo says, “would impose … incalculable amounts of suffering and loss.”

Thus, even during a lapse in appropriations, such as the current one, the Anti-Deficiency Act permits the continuation of certain essential services. The House has determined that the essential services of House staffers include those that are associated with constitutional responsibilities, the protection of human life or the protection of property. Each member must determine which of his or her staffers perform such duties. All others — that is, nonessential employees — must be placed on furlough.

Under the Anti-Deficiency Act, then, furloughed staffers may not perform their official duties on a volunteer basis while on furlough. The recent guidance by the House Administration Committee explains just how broad this prohibition is. For example, a member’s office “may not communicate with a furloughed employee about official duties and the furloughed employee may not perform official duties by email or telephone.” As a way to ensure compliance, the guidance suggests that a member’s office may even require furloughed staffers to turn in their cellphones, laptops and BlackBerrys.

One wonders whether even this is enough to comply. Keep in mind that, technically speaking, violations of the Anti-Deficiency act can be considered crimes, punishable by up to two years in jail. So, what if your mind strays and you start having productive thoughts about the projects you were working on before being furloughed? It seems that if you really want to make sure you don’t break the law against working while on furlough, merely turning in your cellphone and turning off your computer won’t do the trick.

Have you considered a lobotomy?

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