Campaign funds may not be converted to personal use (e.g., loaned to the Member) or used for official expenses.
Campaign funds may be used only for bona fide campaign or political purposes.
Money received at testimonials or other fundraisers must be treated as campaign funds.
A Member may not use official resources, including funds, supplies, and equipment, for campaign activity.
Employees of the House are not covered by the ``Hatch Act'' and may engage in partisan campaign activity in their free time.
Staffers may not make political contributions to their employing Members of Congress.
Members of Congress are prohibited from soliciting political contributions from their staff, as well as from other Federal employees.
Members of the House, like all candidates, must abide by the provisions of the Federal Election Campaign Act concerning required record keeping, reporting, registration, and organization.
Federal law prohibits:
* receiving corporate, labor union, foreign national, and government contractor contributions;
* soliciting contributions from Federal employees;
* soliciting contributions in Federal (including House) office buildings;
* accepting contributions over specified statutory limits;
* making cash contributions over $100;
* misrepresenting oneself as working on behalf of a particular candidate or circulating anonymous campaign literature;
* failing to report contributions received or expenditures made.
Numerous restrictions limit the use of campaign funds by Members of the House of Representatives. Like all candidates for Federal office, Members are subject to regulations on campaign finance pursuant to the Federal Election Campaign Act of 1971, as amended. (FOOTNOTE 1) Under the provisions of that act, the Federal Election Commission (FEC) has been established as an independent regulatory agency to oversee Federal campaign finance procedures and practices. Members should thus examine closely provisions of the Federal Election Campaign Act, regulations promulgated by the FEC, (FOOTNOTE 2) and explanatory publications prepared by the FEC. In addition, certain campaign activities may run afoul of provisions of the Federal Criminal Code.
(FOOTNOTE 1) 2 U.S.C. secs. 431-455.
(FOOTNOTE 2) Title 11 of the Code of Federal Regulations.
This chapter will focus on those provisions not specifically under the authority of the FEC, including Criminal Code provisions and restrictions in the House rules. In addition, it will briefly highlight the major provisions of the large body of Federal campaign law relating to registration, disclosure and use of campaign contributions. Advisory opinions interpreting specific provisions of that law may be requested from the FEC.
Members and supervising employees should carefully counsel all House staff as to the requirements and restrictions pertaining to political activities. The distinction between official and campaign responsibilities should be made clear. Campaign work should be kept out of the congressional office, and vice versa. Management controls, such as time and attendance records, should be implemented to permit adequate supervision of both Washington and district staff and to document compliance with applicable standards.
The rules of the House restrict Members' use of their campaign funds. These rules require that campaign funds be used solely for campaign or political purposes and specifically prohibit the use of campaign funds for personal (FOOTNOTE 3) or official purposes. (FOOTNOTE 4) Campaign funds may not be used to prepare or to print any mass mailing sent under the Member's frank. (FOOTNOTE 5) Any proceeds from testimonials or other fundraisers must be treated as restricted campaign contributions. (FOOTNOTE 6)
(FOOTNOTE 3) Donnald K. Anderson, Clerk of the House of Representatives, Rules of the House of Representatives, 102d Cong. (1991) (hereinafter House Rules), Rule 43, cl. 6.
(FOOTNOTE 4) House Rule 45.
(FOOTNOTE 5) House Rule 46, cl. 3.
(FOOTNOTE 6) House Rule 43, cl. 7.
Nonincumbent candidates for the House are governed only by 2 U.S.C. sec. 439a, since they are not subject to House rules. That statute was amended in the 96th Congress to prevent all candidates, whether incumbent or not, from using excess campaign funds for personal purposes. Not only do statute and rule prohibit diversion of campaign funds to personal use, but such diversion could also transform the funds into taxable personal income to the individual. (FOOTNOTE 7)
(FOOTNOTE 7) Rev. Proc. 68-19, 1968-1 C.B. 810; Rev. Rul. 74-23, 1974-1 C.B. 17.
A Member of the House of Representatives shall keep his campaign funds separate from his personal funds. A Member shall convert no campaign funds to personal use in excess of reimbursement for legitimate and verifiable campaign expenditures and shall expend no funds from his campaign account not attributable to bona fide campaign or political purposes.
-- House Rule 43, clause 6.
House Rule 43, clause 6, prohibits Members from mingling their campaign funds with their personal funds and limits the use of campaign funds to bona fide campaign or political purposes. The Select Committee on Ethics of the 95th Congress explained that ``[t]he intent of this rule is to restrict the use of campaign funds to politically-related activities and thus to prohibit their conversion to personal use or to supplement official allowances.'' (FOOTNOTE 8) As part of the Ethics Reform Act of 1989, (FOOTNOTE 9) the phrase ``bona fide campaign purposes'' was amended to read ``bona fide campaign or political purposes'' in order to reflect the longstanding interpretation that campaign funds need not be exclusively applied towards an immediate reelection campaign. Rather, ``[f]or purposes of this rule, campaign expenditures and political expenditures are synonymous.'' (FOOTNOTE 10)
(FOOTNOTE 8) House Select Comm. on Ethics, Final Report, H. Rep. No. 95-1837, 95th Cong., 2d Sess. 16 (1979).
(FOOTNOTE 9) Pub. L. No. 101-194, sec. 802(c), 103 Stat. 1716, 1773 (1989).
(FOOTNOTE 10) Final Report, H. Rep. No. 95-1837, supra note 8, at 15. See also House Bipartisan Task Force on Ethics, Report on H.R. 3660, 101st Cong., 1st Sess. 60 (Comm. Print, Comm. on Rules 1989), reprinted in 135 Cong. Rec. H9253, H9270 (daily ed. Nov. 21, 1989) (hereinafter Bipartisan Task Force Report).
The rule does not define ``bona fide campaign purpose.'' (FOOTNOTE 11) The Select Committee on Ethics of the 95th Congress, in its Final Report, provided the following guidance as to possible political purposes for which campaign funds might legitimately be used:
(FOOTNOTE 11) See 123 Cong. Rec. 5900 (Mar. 2, 1977) (statement of Representative Frenzel on H. Res. 287).
The Federal Election Commission and the Internal Revenue Service define political expenditures as a payment or gift of anything of value made for the purpose of influencing the selection, nomination, or election of an individual to public office. However, the FEC and IRS have interpreted this definition broadly to encompass the traditional politically-related activities of Members of Congress. Thus, if a Member determines, for example, that advertisements in publications of civic organizations, the mailing of holiday greetings to constituents, or travel to meetings with local party officials, would constitute a political expenditure, as so defined, or are otherwise politically-related, then he may use campaign funds for that purpose. Any such political expenditures must be fully disclosed in accordance with the reporting requirements of the FEC Act. (FOOTNOTE 12)
(FOOTNOTE 12) Final Report, H. Rep. No. 95-1837, supra note 8, at 16.
As long as Members do not convert campaign funds to personal or official uses, they generally have wide discretion as to what constitutes a bona fide political purpose.
On four separate occasions, the Committee on Standards of Official Conduct has investigated Members for transferring campaign funds to personal accounts or borrowing from their campaign funds. The Committee found violations of Rule 43, clause 6 in all cases. Having issued four separate public reports condemning the practice, the Committee believes that all Members should at this point be on notice that they may not borrow from their campaigns.
The first case, in the 96th Congress, resulted in a House censure of the Member. (FOOTNOTE 13) This Committee, in recommending censure, noted that for a charge of conversion of campaign funds to personal use to be sustained, ``it must be proved that the expenditures were not for reimbursement for legitimate prior campaign expenditures, and that the funds were in fact applied to personal use.'' In the instance in question, the Committee concluded ``that these transfers [from campaign accounts to personal accounts] were made to repay personal loans [of the Member] and to cover outstanding obligations against his personal checking account.'' (FOOTNOTE 14)
(FOOTNOTE 13) See 26 Cong. Rec. 13801-820 (June 10, 1980).
(FOOTNOTE 14) House Comm. on Standards of Official Conduct, In the Matter of Representative Charles H. Wilson (of California), H. Rep. No. 96-930, 96th Cong., 2d Sess. 6 (1980).
Again, in the 99th Congress, the Committee found that the rule had been violated when a Member borrowed money from his campaign to engage in personal investments: ``[W]hen a candidate borrows money from his own campaign, a presumption is raised that [the] candidate is receiving a personal benefit -- i.e., use of the money.'' (FOOTNOTE 15) While such a presumption could be overcome, the Committee took the position that any use of campaign funds personally benefiting the Member, rather than ``exclusively and solely'' benefiting the campaign, is not a bona fide campaign purpose:
(FOOTNOTE 15) House Comm. on Standards of Official Conduct, Investigation of Financial Transactions of Representative James Weaver with his Campaign Organization, H. Rep. No. 99-933, 99th Cong., 2d Sess. 13 (1986).
Moreover, a bona fide campaign purpose is not established merely because the use of campaign money might result in a campaign benefit as an incident to benefits personally realized by the recipient of such funds, such as where . . . the individual has the discretion of whether to share benefits he might realize from the use of campaign money.
. . . [T]he Committee believes that any other interpretation and application of the third prohibition of Rule XLIII, clause 6, would open the door to a potentially wide range of abuse and could result in situations where campaign moneys were expended for the personal enjoyment, entertainment, or economic well-being of an individual without any clear nexus that the funds so expended achieved any political benefit to the disburser (campaign organization) of the funds. (FOOTNOTE 16)
(FOOTNOTE 16) Id. (emphasis in original).
In the 100th Congress, the Committee issued two letters of reproval to Members for violating Rule 43, clause 6. In the first of these cases, the Member's campaign committee loaned $1,000 at seven percent interest to his administrative assistant to ease some personal short-term financial difficulties and loaned $4,800 at the same interest rate to the Member to enable him to purchase a car for personal and campaign use in the district. (FOOTNOTE 17) The Committee concluded that these loans were not undertaken exclusively and solely to benefit the campaign.
(FOOTNOTE 17) House Comm. on Standards of Official Conduct, In the Matter of Representative Richard H. Stallings, H. Rep. No. 100-382, 100th Cong., 1st Sess. (1987).
The second case involved a variety of financial transactions in 1978 and 1982 through 1985. The Member borrowed funds from his campaign committee, used a campaign certificate of deposit as collateral for a personal loan, and failed to report the debt he owed to his campaign committee as well as debts to various financial institutions. The Committee stated:
The Committee feels that there is no circumstance in which a Member could borrow from his campaign and satisfy the requirement that the use of the funds would exclusively and solely benefit the campaign. Therefore, the Committee takes the firm position that a Member may not borrow funds from his campaign. The act of borrowing shall be construed as a violation of the provision of House Rule XLIII, clause 6, which requires that all campaign expenditures must be for a bona fide campaign expense.
The Committee takes the firm position that there is a presumption that a Member has borrowed from his campaign in violation of House Rule XLIII, clause 6, when funds are withdrawn under the guise of repayment of prior unreported loans to the campaign. (FOOTNOTE 18)
(FOOTNOTE 18) House Comm. on Standards of Official Conduct, In the Matter of Representative Charles G. Rose III, H. Rep. No. 100-526, 100th Cong., 2d Sess. 23-24 (1988) (emphasis added).
While personal (and official) use of campaign funds is prohibited, certain expenses that arise as a direct result of winning election may be deemed campaign-related. The Committee recognizes that certain expenses occur as a successful candidate is making the transition from candidate to elected official. The Committee has determined that a new Member's moving expenses to relocate to Washington, D.C. may legitimately be paid from campaign funds, as long as these expenses are incurred reasonably contemporaneously with the beginning of the congressional term. The campaign fund may also pay for a reception in honor of an individual's swearing in as a Member of Congress, even if the reception is held in the congressional office. This is the only instance where the Committee has allowed campaign funds to be used for an event held in the House office buildings.
Example 1. Member A takes his family on a Caribbean vacation to rest up after a particularly grueling but successful campaign. A may not pay for the vacation with campaign funds.
Example 2. Member B maintains a petty cash fund in the congressional office to pay for nonofficial expenses, such as coffee for the staff and plants for the office. B may not use campaign funds for these purposes. B may use personal funds.
The 1977 amendments to the Rules of the House made by H. Res. 287 were specifically intended to build a ``wall between campaign funds and official allowances.'' (FOOTNOTE 19) Thus, the Rules of the House have long prohibited Members from maintaining or using an ``unofficial office account,'' that is, using nonappropriated, private funds such as campaign contributions to defray official expenses of the Member. (FOOTNOTE 20) As a result of a 1990 statutory change codifying House Rule 45, Federal law now similarly bars all Members of Congress from using campaign funds for official expenses. (FOOTNOTE 21)
(FOOTNOTE 19) House Comm'n on Admin. Review, Financial Ethics, H. Doc. No. 95-73, 95th Cong., 1st Sess. 18 (1977).
(FOOTNOTE 20) House Rule 45. See Chapter 6 for a detailed discussion of Rule 45 and the reasons for prohibiting the use of campaign funds for official expenses.
(FOOTNOTE 21) See 2 U.S.C. sec. 59e(d)(1).
In Advisory Opinion No. 6, this Committee noted that in the absence of any definition in Rule 45 or Rule 43 of ``political'' or ``official'' expenses, a Member has wide discretion in designating a particular expenditure as political or official. ``However, [the] committee is of the view that once the Member makes his determination, he is bound by it. A single event cannot, for purposes of the House rules, be treated as both political and official.'' (FOOTNOTE 22) Therefore, in the situation that prompted the issuance of the advisory opinion, the Member could have designated a town meeting either as a political (campaign) event or as an official (representative) one. But by sending announcements of the meeting under the frank (which can be used only in the conduct of official business), the Member defined the event as an official one and thus could not use campaign funds or any other private funds to advertise or to conduct the meeting without violating Rule 45 or Rule 43, clause 6.
(FOOTNOTE 22) House Comm. on Standards of Official Conduct, Advisory Opinion No. 6 (Sept. 14, 1982) (emphasis in original), reprinted in 128 Cong. Rec. 24349 (Sept. 21, 1982) and at the end of this chapter. See also discussion of Town Meetings and Conferences in Chapter 9 of this Manual.
Conversely, if a Member designates an event as political by using campaign funds for it, no official resources may then be used. This means that congressional staff should not make the arrangements, invitations may not go out under the frank, and the congressional telephone number may not be designated for RSVPs. Political fundraisers may never use official resources.
Example 3. Member A may not use campaign funds to purchase business cards for her congressional office staff.
Example 4. Member B holds an official town meeting in his district, organized by official staff and advertised under the frank. B may not use campaign funds to buy refreshments for the meeting.
The Ethics Reform Act authorized ``the incidental noncampaign use of vehicles owned or leased by a campaign committee of a Member of the House of Representatives'' under ``appropriate conditions'' as determined by this Committee. (FOOTNOTE 23) This provision allows for common sense accommodations of a Member's busy schedule, but not a wholesale conversion of campaign assets to personal, official, or other nonpolitical purposes. Members should therefore guide their conduct by a rule of reason, and consult the Committee's Office of Advice and Education if in doubt as to whether a particular contemplated use would be considered incidental and appropriate.
(FOOTNOTE 23) Pub. L. No. 101-194, supra note 9, sec. 802(d), 103 Stat. at 1773. See 2 U.S.C. sec. 29d note. See also Bipartisan Task Force Report, supra note 10, at 34-36, 135 Cong. Rec. H9263.
Example 5. Member A has three events scheduled in her district one day. The first and last are political events; the second is an official event. She may use the car leased by her campaign to travel to all three events.
Example 6. Member B's teenager asks permission to borrow the campaign car to go on a date. Member B must decline. This would not be an appropriate use of a campaign resource.
Federal law provides that only appropriated funds, and not private contributions, may be used to pay the cost of preparing, printing, and distributing mass mailings under the frank. (FOOTNOTE 24) This statutory provision, enacted in 1981, codified provisions that had been in the Rules of the House since 1977. (FOOTNOTE 25)
(FOOTNOTE 24) 39 U.S.C. sec. 3210(f).
(FOOTNOTE 25) House Rule 46, cl. 3.
The rationale behind the restriction on the use of campaign funds, or other private funds, for defraying the cost of mass mailings under the frank was explained by the House Commission on Administrative Review:
The Commission believes that since the franking privilege is reserved for ``official materials,'' it is inappropriate for franked mass mailings to be printed and prepared with private or political funds.
The Commission believes that it is necessary to make a clear separation between the public purpose and private interest in the use of the frank, and therefore, private funds should not be used to print ``official documents.'' (FOOTNOTE 26)
(FOOTNOTE 26) Financial Ethics, H. Doc. No. 95-73, supra note 19, at 19.
The Rules of the House provide that any funds received from testimonial dinners or other fundraising events are to be treated as campaign contributions, subject to all the restrictions on campaign funds. (FOOTNOTE 27) Thus, such proceeds may be used only for bona fide campaign or political purposes, rather than for personal or congressional office uses.
(FOOTNOTE 27) House Rule 43, cl. 7.
The Select Committee on Ethics found in an Advisory Opinion that a direct mail solicitation by a Member of the House or the spouse of a Member constitutes a ``fund-raising event'' for purposes of House Rule 43, clause 7. Thus the proceeds of such a solicitation must be treated as campaign contributions and may not be converted to personal use by the Member. The Select Committee noted that a major purpose of the revisions of the Code of Official Conduct was to prevent Members from cashing in on their official positions in the Congress. (FOOTNOTE 28) That committee also found, in Advisory Opinion No. 11, that a Member may not accept for his unrestricted personal use the proceeds of a fundraiser conducted by a group that is independent from the Member. (FOOTNOTE 29)
(FOOTNOTE 28) House Select Comm. on Ethics, Advisory Opinion No. 4 (Apr. 6, 1977), reprinted in Final Report, H. Rep. No. 95-1837, supra note 8, app. at 61, and at the end of this chapter.
(FOOTNOTE 29) House Select Comm. on Ethics, Advisory Opinion No. 11 (May 11, 1977), reprinted in Final Report, H. Rep. No. 95-1837, supra note 8, app. at 76, and at the end of this chapter.
The Committee on Standards has determined that Members may use campaign funds to defend legal actions arising out of their campaign, election, or the performance of their official duties. The Committee deems the protection of a Member's presumption of innocence to be a valid political purpose. These funds remain campaign contributions, however, subject to all the restrictions and prohibitions of other campaign contributions, including the reporting requirements, contribution limits, and prohibitions on corporate, labor union, and government contractor contributions. Such treatment accords with rulings of the Federal Election Commission. (FOOTNOTE 30)
(FOOTNOTE 30) See FEC Advisory Op. 1986-9, 2 Fed. Election Camp. Fin. Guide (CCH) para. 5851, at 11,267 (Apr. 22, 1989); FEC Advisory Op. 1977-39, 1 id. para. 5264, at 10,211 (Aug. 26, 1977).
In addition (or instead), a Member, officer, or employee may choose to set up a ``legal defense fund'' independent of any campaign fund. (Officers and employees obviously do not have the option of using campaign funds and would have to resort to separate legal defense funds for actions arising out of their official duties.) The Select Committee on Ethics established an exemption to Rule 43, clause 7, such that funds raised specifically for legal defense are not deemed to be campaign contributions. (FOOTNOTE 31) Such legal defense funds are, however, subject to the gift rule. (FOOTNOTE 32)
(FOOTNOTE 31) See Final Report, H. Rep. No. 95-1837, supra note 8, at 15. See also FEC Advisory Op. 1983-37, 1 Fed. Election Camp. Fin. Guide (CCH) para. 5737, at 11,013 (Nov. 18, 1983); FEC Advisory Op. 1983-21, id. para. 5725, at 10,994 (Sept. 20, 1983); FEC Advisory Op. 1979-37, id. para. 5419, at 10,450 (July 19, 1979).
(FOOTNOTE 32) See Chapter 2 for discussion of additional restrictions on legal defense funds under the gift rule.
The redistricting process arising out of the 1990 census has led to the creation of redistricting funds, set up to promote the interests of the constituents of individual districts. A Member may associate with and raise money for such a fund provided that it represents the views of a wide range of constituents and not solely those of the Member, and that the Federal Election Commission agrees that the fund is independent of the Member's campaign committee and not subject to the Federal Election Campaign Act. No official resources may be used in support of a redistricting fund. The amounts raised would not, under these circumstances, be treated as personal gifts, campaign contributions, or supplements to the official expenses allowance. Such a fund would not be subject to the jurisdiction of this Committee, and no contribution limits or reporting requirements would apply.
Campaign funds that are in excess of amounts needed to defray the cost of campaigning are subject to the same restrictions as campaign funds in general. The 96th Congress amended 2 U.S.C. sec. 439a to prohibit the use of excess campaign funds for personal purposes by anyone except those who were Members of Congress on January 8, 1980, the date the amendment became effective. Since House rules prohibit such diversion to personal use, however, no Member regardless of tenure in the House, could then or may now make personal use of campaign funds while in office. (FOOTNOTE 33)
(FOOTNOTE 33) See FEC Advisory Op. 1978-94, 1 Fed. Election Camp. Fin. Guide (CCH) para. 5379, at 10,384 (Dec. 15, 1978) as to the use of excess campaign funds of a deceased Member of Congress. For the remainder of the 102nd Congress, permissibility of converting campaign funds for personal purposes in such cases would depend on whether the deceased Member had been in Congress on Jan. 8, 1980. See also FEC Advisory Op. 1980-41, id. para. 5491, at 10,558 (May 16, 1980).
Moreover, in the Ethics Reform Act of 1989, Congress repealed this ``grandfather'' provision, which allowed those Members who were in office on January 8, 1980 to convert excess campaign funds to personal use upon retirement. (FOOTNOTE 34) Under the new law, after the end of the 102nd Congress, no Member will be able to use campaign funds for personal purposes. Those Members who were in office in 1980 and leave office before the swearing in of the 103d Congress (in January 1993) will be limited to the unrestricted amount in their campaign funds as of November 30, 1989 (the date of enactment of the Ethics Reform Act).
(FOOTNOTE 34) Pub. L. No. 101-194, supra note 9, sec. 504, 103 Stat. at 1755 (amending 2 U.S.C. sec. 439a). See 2 U.S.C. sec. 439a note.
The statute still allows campaign funds to be donated to charities described in sec. 170(c) of the Internal Revenue Code, (FOOTNOTE 35) to be contributed to any national, state, or local committee of a political party, or to be used for ``any other lawful purpose.'' (FOOTNOTE 36) The Select Committee on Ethics stated in its Final Report that House rules also would allow the contribution of excess campaign funds to a qualified charitable organization or to a political party or another candidate, as permitted by FEC regulations. (FOOTNOTE 37) Under the provisions of both the Federal statute and House rules, excess campaign funds may be invested for use in a future political campaign. In addition to the general reporting requirements concerning the disposition of campaign funds, the political committee may be liable for tax on the interest earned on campaign funds. (FOOTNOTE 38)
(FOOTNOTE 35) 26 U.S.C. sec. 170(c).
(FOOTNOTE 36) 2 U.S.C. sec. 439a. See also FEC Advisory Op. No. 1980-113, 1 Fed. Election Camp. Fin. Guide para. 5562, at 10,692 (Nov. 7, 1980).
(FOOTNOTE 37) Final Report, H. Rep. No. 95-1837, supra note 8, at 16-17.
(FOOTNOTE 38) See IRS Form 1120-POL, ``U.S. Income Tax Return for Certain Political Organizations,'' and Instructions.
Committee on House Administration regulations specify that the various allowances for a Member's office are for ``official expenses'' and for the ``conduct of the official and representational duties of the office.'' (FOOTNOTE 39) These regulations derive in large part from 31 U.S.C. sec. 1301(a), providing that official funds are to be used only for the purposes for which appropriated, as well as from statutory authorizations for allowances. (FOOTNOTE 40) It is thus inappropriate to use any official resources to conduct campaign or political activities. A Member may make nonpartisan voter registration materials available in a congressional office, but may not actually register people to vote there.
(FOOTNOTE 39) Comm. on House Admin., U.S. House of Representatives Congressional Handbook sec. 2.I.A, at 2.1 (Sept. 1985) (hereinafter Congressional Handbook).
(FOOTNOTE 40) See, e.g., 2 U.S.C. secs. 42c, 43b, 46g, 56, and 122.
Members must regularly certify that all official funds have been properly applied. Not only may a false certification bring criminal penalties, but any amount improperly paid may be recovered by the Government. (FOOTNOTE 41)
(FOOTNOTE 41) 18 U.S.C. 1001 provides a criminal penalty for submitting a false statement to the Government; the False Claims Act, 31 U.S.C. secs. 3729-3731, permits assessment of a penalty of up to three times the amount wrongly claimed. See discussion of False Claims and Fraud in Chapter 6 of this Manual.
Mailing lists procured, compiled, maintained, or produced with appropriated funds may be used only for official purposes. Official mailing lists may not be shared with a Member's campaign committee or otherwise be used for campaign purposes. No name or address from any such list may be affixed to a campaign or other mailing not bearing the Member's frank. A congressional office may acquire a mailing list compiled by an unofficial source (including a campaign committee) only if the list is available on the same terms to other entities. If such a list is generally available, a Member's congressional office and campaign committee could each buy the same list and thereby acquire the same information.
House Rule 43, clause 11, provides:
A Member of the House of Representatives shall not authorize or otherwise allow a non-House individual, group, or organization 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.
When the Committee's Advisory Opinion regarding Rule 43, clause 11, was issued in 1979, this provision was viewed as not preventing a Member from using a facsimile of official stationery for his or her own campaign. (FOOTNOTE 42) (Obviously, a Member may not use stationery printed at Government expense for campaign business.) Since a letter advocating a Member's reelection or soliciting campaign contributions must include a conspicuous statement indicating the sponsor of the communication (generally, the campaign committee), it was believed unlikely that such correspondence would be misinterpreted as an official communication from the House or an endorsement by the Congress. (FOOTNOTE 43) However, since the 1979 Advisory Opinion was published, Congress has amended Federal law relating to official-appearing stationery.
(FOOTNOTE 42) See House Comm. on Standards of Official Conduct, Advisory Opinion No. 5, reprinted in 125 Cong. Rec. 7286 (Apr. 4, 1979) and at the end of Chapter 9 of this Manual.
(FOOTNOTE 43) 2 U.S.C. sec. 441d. Note that this campaign law requires an affirmative disclosure of the source of the communication (e.g., ``Paid for by the Doe for Congress Committee''); a mere statement of who is not the source (e.g., ``Not printed at Government expense'') does not suffice.
The Deceptive Mailings Prevention Act of 1990 (FOOTNOTE 44) provides that any solicitation by a non-governmental entity, which uses any insignia or any term or symbol implying Federal Government connection, endorsement, or approval, must carry a disclaimer, both on the internal documents and on the envelope, conspicuously stating that it is not an official mailing. (FOOTNOTE 45) The House Committee on Post Office and Civil Service, in its report to accompany the bill, made it clear that the statute would apply to campaigns:
(FOOTNOTE 44) Pub. L. No. 101-524, 104 Stat. 2301 (Nov. 6, 1990) (codified at 39 U.S.C. sec. 3001(h)-(i)).
(FOOTNOTE 45) Id.; see also United States Postal Service, Domestic Mail Manual, Issue 40, secs. 123.421-.422, at 124 (Sept. 15, 1991).
The provisions of this bill apply to political mailings by individuals, political parties, and political action committees. Any political mailing seeking funds by use of a solicitation that looks like a bill, or by the use of a name, symbol, or insignia which creates the impression that the mailing is connected with or approved by any branch of the Federal Government would be subject to this legislation. (FOOTNOTE 46)
(FOOTNOTE 46) House Comm. on Post Office and Civil Service, Deceptive Mailings Prevention Act of 1989, H. Rep. No. 101-178, 101st Cong., 1st Sess. 6 (1989).
Two provisions of the Criminal Code also militate against use of facsimiles of official stationery for campaign mailings. Use of the Great Seal of the United States on letterhead may convey an impression of officiality. The Federal Criminal Code (FOOTNOTE 47) provides misdemeanor penalties for the knowing display of a likeness or facsimile of the Great Seal on (among other things) stationery, in a manner reasonably calculated to convey a false impression of sponsorship or approval by the Government of the United States. The Department of Justice has consistently advised Members of Congress and campaign committees that the display of the Great Seal on stationery used for solicitation of funds or political support is a violation of this provision. (FOOTNOTE 48) In 1986, for example, it was publicly disclosed that the Justice Department had informed a Member of the House that his use of the Great Seal on a letter soliciting support for a congressional candidate was improper. (FOOTNOTE 49)
(FOOTNOTE 47) 18 U.S.C. sec. 713.
(FOOTNOTE 48) See Letter from John C. Keeney, Acting Ass't Att'y General, Crim. Div., U.S. Dep't of Justice, to Representative Louis Stokes, Chairman, House Comm. on Standards of Official Conduct (Aug. 9, 1984) (on file at Committee office).
(FOOTNOTE 48) See Washington Times, Jan. 23, 1986, at 2-A.
The General Counsel to the Clerk of the House has distinguished the Great Seal from ``congressional seals,'' which he has advised may be used by Members on Christmas cards and other items that are neither printed nor mailed at official expense. (FOOTNOTE 50) Nevertheless, to avoid any dispute as to whether ``congressional seals'' are facsimiles of the Great Seal, Members may wish to use a likeness of the Capitol Dome instead. The Dome is in the public domain and therefore is not protected in the same manner as the Seal.
(FOOTNOTE 50) The Permissibility of the Use of ``Congressional'' Seals on Christmas Cards and Other Items Neither Printed Nor Mailed With Official Funds, Memorandum from Steven R. Ross, Gen. Counsel to the Clerk, to Representative Louis Stokes, Chairman, House Comm. on Standards of Official Conduct (Oct. 16, 1984) (on file at Committee office).
Another Criminal Code provision (FOOTNOTE 51) makes it unlawful for any person to solicit or receive any campaign contribution, as defined in the Federal Election Campaign Act, (FOOTNOTE 52) in any room or building occupied in the discharge of official government duties, including House office buildings. (FOOTNOTE 53) Campaign solicitations bearing letterhead with the congressional address of a Member's Washington D.C. or district office could be viewed as violating this provision.
(FOOTNOTE 51) 18 U.S.C. sec. 607(a) (providing a penalty of a fine of not more than $5,000, or imprisonment for not more than three years, or both).
(FOOTNOTE 52) 2 U.S.C. sec. 431(8).
(FOOTNOTE 53) The statute provides, however, that unsolicited contributions received in a congressional office may be accepted if turned over to the Member's campaign committee within seven days of receipt. See 18 U.S.C. sec. 607(b) and discussion of Campaign Activity in Federal Buildings, at page 285 of this chapter.
House employees are compensated from funds of the Treasury for regular performance of official duties. They are not paid to do campaign work. In the words of the United States District Court for the District of Columbia: ``It is clear from the record that Congress has recognized the basic principle that government funds should not be spent to help incumbents gain reelection.'' (FOOTNOTE 54)
(FOOTNOTE 54) Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), aff'd, 461 U.S. 911 (1983).
As noted in Chapter 5, however, the ``Hatch Act'' does not apply to congressional employees. (FOOTNOTE 55) Once employees have completed the official duties assigned, they are free to engage in campaign activities on their own time, as volunteers or for pay, as long as they do not do so in congressional offices or otherwise use official resources. Additionally, employees may engage in campaign activities while on annual leave, leave of absence, or in part-time employment status, provided the time spent on both official and campaign activities is carefully documented. Staff may not be required to do political work as a condition of House employment.
(FOOTNOTE 55) The ``Hatch Act'' prohibits executive branch employees from taking active part in political campaigns. 5 U.S.C. sec. 7324.
The Federal District Court recognized, ``To state the obvious, it is simply impossible to draw and enforce a perfect line between the official and political business of Members of Congress''. (FOOTNOTE 56) In responding to ``official'' inquiries from the press or constituents, for example, congressional staffers may need to address questions that relate to a Member's political campaign. Similarly, scheduling assistance and information from the official staff may be requested by the campaign staff to ensure that no conflict occurs between the Member's campaign schedule and official agenda. Committee on Standards of Official Conduct Advisory Opinion No. 2 (FOOTNOTE 57) acknowledged that, as a practical matter, it may be impossible to have an absolute separation of duties. However, the general distinction between official representational and legislative duties on the one hand and political activities on the other is a longstanding distinction in Congress, recognized specifically in such provisions as the franking law, (FOOTNOTE 58) the rule on unofficial office accounts, (FOOTNOTE 59) and the Federal Election Campaign Act. (FOOTNOTE 60) The Committee ``expects Members of the House to abide by the general proposition'' that staffers are to work on campaign-related matters on their own time, after the completion of their official duties. (FOOTNOTE 61)
(FOOTNOTE 56) Common Cause v. Bolger, supra note 54, 574 F. Supp. at 683.
(FOOTNOTE 57) House Comm. on Standards of Official Conduct, Advisory Opinion No. 2 (July 11, 1973), reprinted in 119 Cong. Rec. 23691-92 (July 12, 1973) and at the end of Chapter 5 of this Manual.
(FOOTNOTE 58) 39 U.S.C. sec. 3210(a).
(FOOTNOTE 59) House Rule 45.
(FOOTNOTE 60) 2 U.S.C. sec. 439a.
(FOOTNOTE 61) Advisory Opinion No. 2, supra note 57.
Example 7. A reporter calls Member A's congressional press secretary to obtain information on some legislation A is sponsoring. In the course of the interview on the legislation, the reporter asks how A perceives the bill will affect his upcoming reelection campaign. The press secretary may answer the question.
Example 8. A reporter calls Member A's congressional press secretary to obtain A's comment on charges raised about A's political opponent. The press secretary should refer the call to A's campaign staff or to the Member.
Example 9. Various employees on Member B's official staff also volunteer on her campaign. B's political opponent levels charges of ethical improprieties against her, which B believes require an immediate response. Her congressional staff may not spend their official workday preparing the campaign's response.
Example 10. Congressional staffer C works for Member B and also volunteers on B's campaign. B asks C to prepare a response, after official working hours, to the charges raised by her political opponent. C may comply, but C may not stay late at the office, using congressional resources such as the office computer and the official mailing list, to do the campaign assignment.
Example 11. Member D invites his campaign workers, including some volunteers from his congressional staff, to come to his home on a Saturday to help stuff envelopes for a campaign mailing. The congressional staff may attend.
Example 12. Various employees on Member E's official staff have volunteered to help E's campaign run a telephone fund drive. The may not stay late at the congressional office and make the calls from there.
The U.S. Criminal Code makes it unlawful to solicit or to receive any political contribution in any building where Federal employees work. (FOOTNOTE 62) This includes the Capitol, House office buildings, and district offices. Rules of the House Office Building Commission also specifically prohibit the soliciting of contributions in any House facility. (FOOTNOTE 63)
(FOOTNOTE 62) 18 U.S.C. sec. 607.
(FOOTNOTE 63) These rules, promulgated pursuant to 40 U.S.C. sec. 175, are reprinted in the Congressional Handbook, supra note 39, at 2.25 and 7.16, and at the end of Chapter 6 of this Manual.
The criminal statute recognizes that unsolicited campaign contributions may be received through the mail or a supporter may unexpectedly tender a contribution in person within a congressional office. When this situation occurs, the law specifically provides that the contribution may be accepted, provided it is forwarded within seven days to the appropriate campaign organization. (FOOTNOTE 64) If a Member or staffer learns in advance that campaign contribution may be tendered in a House office building, he or she should discourage this action and direct the donor instead to the Member's authorized campaign committee.
(FOOTNOTE 64) 18 U.S.C. sec. 607(b).
Federal criminal law specifically prohibits Members of Congress, candidates for Congress, and Federal employees from soliciting political contributions from Federal Government employees, including employees of the House of Representatives. (FOOTNOTE 65) Unlike the statute prior to its 1980 amendment, the current provision prohibits only the solicitation of political contributions from Federal employees and does not prohibit the receipt of such contributions. (FOOTNOTE 66) As discussed above, however, other criminal laws prohibit the solicitation and receipt of contributions in any building where Federal employees work, including House office buildings and Members' district offices, (FOOTNOTE 67) and prohibit employees from contributing to their employing authority. (FOOTNOTE 68)
(FOOTNOTE 65) 18 U.S.C. sec. 602. This Committee's guidance concerning political activities of Members, officers, and employees of the House is reprinted at the end of this chapter. Dear Colleague letter from Julian C. Dixon, Chairman, and Floyd D. Spence, Ranking Minority Member, House Comm. on Standards of Official Conduct (Nov. 21, 1985).
(FOOTNOTE 66) See Comm. on House Admin., Federal Election Campaign Act Amendments of 1979, H. Rep. No. 96-422, 96th Cong., 1st Sess. 25 (1979). Under the former statute, Members of Congress were also prohibited from receiving contributions from Federal employees, including their staff, even when no solicitation of the contribution was shown. See Brehm v. United States, 196 F.2d 769, 770 (D.C. Cir.) (upholding the conviction of a Member of Congress for receiving campaign contributions from staff even without specific finding of solicitation or shakedown), cert. denied, 344 U.S. 838 (1952).
(FOOTNOTE 67) 18 U.S.C. sec. 607.
(FOOTNOTE 68) 18 U.S.C. sec. 603.
The statute (at 18 U.S.C. sec. 602) prohibits the ``knowing'' solicitation of political contributions from any other Federal employee or officer. Inadvertent solicitations of Federal employees, therefore, such as when part of a general fundraising campaign aimed at the public at large, were not intended to be violations of this provision or its predecessor. (FOOTNOTE 69) As stated in the House Report on the Federal Election Campaign Act Amendments revising section 602:
(FOOTNOTE 69) See 113 Cong. Rec. 25703 (Sept. 11, 1973).
In order for a solicitation to be a violation of this section, it must be actually known that the person who is being solicited is a federal employee. Merely mailing to a list [which] will no doubt contain names of federal employees is not a violation of this section. (FOOTNOTE 70)
(FOOTNOTE 70) H. Rep. No. 96-422, supra note 66, at 25.
In the 99th Congress, this Committee undertook a Preliminary Inquiry into allegations that Federal law had been violated in connection with political solicitations from congressional staff in House office buildings. (FOOTNOTE 71) At issue was a ``Dear Colleague'' letter advertising a political fundraising event and urging the involvement of the staff of recipient Members. The Committee noted that the letter had been prepared by a contractor without the Members either being aware of or approving the substance of the solicitation. However, the report did point out ``the need for any organization involved in political fundraising efforts to institute such procedural safeguards as are necessary to avoid any question that it is acting in accordance with those laws governing political solicitations.'' (FOOTNOTE 72)
(FOOTNOTE 71) House Comm. on Standards of Official Conduct, Investigation of Alleged Improper Political Solicitation, H. Rep. No. 99-277, 99th Cong., 1st Sess. (1985).
(FOOTNOTE 72) Id. at 5. While H. Rep. No. 99-277 contains the Committee's views on the statute's operation, the Department of Justice has discretion as to whether to seek prosecution in any particular case.
Since the statute aims to protect employees who, because of their employment and position, may be subject to coercion or ``political assessment,'' section 602 ``does not apply to solicitation of Members of Congress.'' (FOOTNOTE 73) This interpretation is consistent with the construction of the predecessor statute to 18 U.S.C. sec. 602. A resolution adopted by the House in the 63rd Congress, 2d Session (1913), affirmed that the prior law ``should not be construed to prohibit one Senator or Member of Congress from soliciting campaign contributions from another Senator or Member of Congress.'' (FOOTNOTE 74)
(FOOTNOTE 73) 125 Cong. Rec. 36754 (Dec. 18, 1979).
(FOOTNOTE 74) See 6 Clarence Cannon, Cannon's Precedents of the House of Representatives sec. 401, at 571-573 (1935).
An employee of the Federal Government may not make a political contribution to a Member of Congress or another Federal official who is the employer or employing authority of the contributor. (FOOTNOTE 75) Prior to an amendment effective in 1980, (FOOTNOTE 76) congressional staff and other employees of the Federal Government were prohibited from making political contributions to any other Federal officer, employee, or Member of Congress, regardless of the employment relationship of the parties. (FOOTNOTE 77) Although in practice the statute was not strictly enforced, (FOOTNOTE 78) such a restriction on employees had been in effect in some form since the late 1800's. (FOOTNOTE 79)
(FOOTNOTE 75) 18 U.S.C. sec. 603.
(FOOTNOTE 76) Pub. L. No. 96-187, 96th Cong., 2d Sess., 93 Stat. 1367 (1980).
(FOOTNOTE 77) See 18 U.S.C. sec. 607 (1976 Code); See generally Senate Comm. on Rules and Admin., Review of Laws Related to Contributions Made by or Solicited from Senate Officers and Employees and the Use of Official Staff by Holders of Public Office in Federal Campaigns, S. Rep. No. 95-500, 95th Cong., 1st Sess. 5-7 (1977).
(FOOTNOTE 78) Letter from Henry E. Peterson, Ass't Att'y Gen., Crim. Div., by Thomas J. McTiernan, Chief of the Fraud Section, U.S. Dep't of Justice (Aug. 12, 1974), reprinted in S. Rep. No. 95-500, supra note 77, app. at 43-44.
(FOOTNOTE 79) See Section 14 of the Pendleton Act, 22 Stat. 403 (1883). Similar restrictions on some Federal employees making political contributions to other employees, and receiving such contributions from other employees, have been upheld against constitutional challenge. See Ex Parte Curtis, 106 U.S. 371 (1882); United States v. Wurzbach, 280 U.S. 396 (1930).
Under current 18 U.S.C. sec. 603, a congressional employee is prohibited from making political contributions only to his or her boss, that is, the employer or employing authority. As explained in the House Report accompanying H.R. 5010 (96th Congress, 1st Session):
Section 603 has been amended to allow voluntary contributions from federal employees to other federal employees. If, however, the individual is employed by a Senator, Representative or Delegate or Resident Commissioner to Congress that employee cannot contribute to his or her employer although voluntary contributions to other Members of Congress would be allowed. An individual employed by a congressional committee cannot contribute to the chairman of that particular committee. If the individual is employed by the minority that individual cannot contribute to the ranking minority member of the committee or the chairman of the committee. (FOOTNOTE 80)
(FOOTNOTE 80) Federal Election Campaign Act Amendments of 1979, H. Rep. No. 96-422, supra note 66, at 26.
Congressional staff may contribute to any candidate, including a Member of Congress, except the employer or employing authority of the staffer. In addition, a congressional employee may contribute to a committee or organization that is not the ``authorized committee'' or campaign committee of the candidate. Generally, under Federal campaign law, a multicandidate committee or a PAC, which supports more than one Federal candidate, may not be designated as an ``authorized committee'' of a candidate. (FOOTNOTE 81) Therefore, congressional staff may make political contributions to multicandidate political committees such as the Democratic or Republican Senatorial or Congressional Campaign Committee, the Republican or Democratic National Committee, or any PAC, even though some of the proceeds received by such committees may eventually be expended for the benefit of the contributor's employer. In making such a contribution, however, an employee should not specifically earmark it for use in the campaign of the employing Member, since that could be deemed a contribution from the employee to the Member. (FOOTNOTE 82)
(FOOTNOTE 81) 2 U.S.C. sec. 432(e)(3).
(FOOTNOTE 82) See 2 U.S.C. sec. 441a(a)(8); 11 C.F.R. sec. 110.6.
For the purposes of current restrictions on contributions by congressional employees, the term ``contribution'' is defined in 2 U.S.C. sec. 431, the Federal Election Campaign Act, as amended. This definition specifically excludes the value of voluntary services provided by an individual to a candidate or committee. Thus, staffers may voluntarily provide services on their own free time to their employing Members' campaigns. In addition, the definition of ``contribution'' refers only to Federal election campaigns, so a congressional employee may make a political contribution in any state or local contest, including one in which a Federal officer or employee is running or soliciting funds. However, the FEC includes within its definition of contribution any outlays that an individual makes on behalf of a campaign, regardless of expection of reimbursement. Under this regulation, a House employee who volunteers on his or her employing Member's campaign may not pay any expenses for the campaign, even if the campaign promptly pays the staffer back. (FOOTNOTE 83)
(FOOTNOTE 83) 11 C.F.R. sec. 116.5(b) (issued June 27, 1990). See Memorandum to all Members, Officers, and Employees from Louis Stokes, Chairman, and James V. Hansen, Ranking Minority Member, House Comm. on Standards of Official Conduct (June 11, 1991), reprinted at the end of this chapter.
Fundraising dinners, testimonials, and similar events are common methods for candidates to raise money for an upcoming political campaign or to pay off previous campaign debts. The price of a ticket to such an event is generally considered a campaign contribution from the purchaser of the ticket to the candidate on whose behalf the event is being held. (FOOTNOTE 84) Thus, a congressional employee should not purchase such a ticket or contribute money to a fundraiser or testimonial given for his employer or employing authority. An employee could, however, attend a fundraiser as a nonpaying guest.
(FOOTNOTE 84) See House Rule 43, cl. 7; Federal Election Campaign Act Amendments of 1979, H. Rep. No. 96-422, supra note 66, at 16.
Under the Federal Election Campaign Act (FECA), each candidate for Federal office, including any Member of the House who is running for reelection, must designate a principal campaign committee. (FOOTNOTE 85) This committee, like all other political committees, must register with the FEC (FOOTNOTE 86) and be organized and keep records according to Federal campaign laws. (FOOTNOTE 87) Each candidate must also designate one or more national or state banks or similar, government-insured financial institutions, as a campaign depository. (FOOTNOTE 88)
(FOOTNOTE 85) 2 U.S.C. sec. 432(e)(1); 11 C.F.R. sec. 101.1. Regardless of whether action is not taken to qualify under state law, an individual is deemed a candidate under the FECA once $5,000 has been raised or spent towards election. 2 U.S.C. sec. 431(2); 11 C.F.R. sec. 100.3.
(FOOTNOTE 86) 2 U.S.C. sec. 433; 11 C.F.R. sec. 102.1.
(FOOTNOTE 87) 2 U.S.C. sec. 432(a)-(d); 11 C.F.R. Part 102.
(FOOTNOTE 88) 2 U.S.C. sec. 432(h)(1); 11 C.F.R. sec. 103.2.
The campaign committees of candidates for the House must file periodic, detailed reports, on forms provided by the FEC, with the Clerk of the House as custodian for the FEC, showing the receipt of political contributions and the making of political expenditures. (FOOTNOTE 89) Each committee must also file copies of such statements with the Secretary of State, or similar state officer, of the relevant state. (FOOTNOTE 90)
(FOOTNOTE 89) 2 U.S.C. sec. 434; 11 C.F.R. Parts 104-105.
(FOOTNOTE 90) 2 U.S.C. sec. 439; 11 C.F.R. Part 108.
Federal campaign laws prohibit Members of and candidates for Congress from receiving political contributions from the treasury funds of a corporation, labor organization, or national bank. (FOOTNOTE 91) Additionally, contributions may not be accepted from Federal government contractors. (FOOTNOTE 92) Corporations, labor organizations, membership organizations, or cooperatives may, however, establish separate segregated funds, often referred to as political action committees, or ``PACs.'' Even a government contractor may set up a PAC. PACs collect voluntary contributions from which they may then make their own political expenditures and contributions. PACs may not solicit funds by threats of job discrimination or reprisals or by requiring dues or assessments as a condition of employment. (FOOTNOTE 93) Members and candidates for the House may receive contributions from PACs, up to the contribution limits specified by Federal law.
(FOOTNOTE 91) 2 U.S.C. sec. 441b; 11 C.F.R. Part 114.
(FOOTNOTE 92) 2 U.S.C. sec. 441c; 11 C.F.R. Part 115.
(FOOTNOTE 93) 2 U.S.C. secs. 441b(b)(3), 441c(b); 11 C.F.R. secs. 114.5(a), 115.3.
Federal law restricts the amount of political contributions that may be made by, and accepted from, individuals and political committees. A ``Multicandidate'' political committee -- which is registered for at least 6 months with the FEC, receives contribution from more than 50 people, and contributes to at least 5 Federal candidates -- may contribute up to $5,000 to a candidate for every primary, runoff, or general election in which the candidate's name appears on the ballot (and may contribute up to $5,000 to other political committees during a calendar year and up to $15,000 to national political party committees). (FOOTNOTE 94) The PACs of corporations and labor unions are often multicandidate committees which may make contributions of up to $5,000 per candidate per election (primary and general). If a political committee is not a qualified multicandidate committee, it may make contributions of up to only $1,000 per election to a candidate. (FOOTNOTE 95) The FEC maintains a list, updated monthly, of committees that have qualified as multicandidate. (FOOTNOTE 96)
(FOOTNOTE 94) 2 U.S.C. sec. 441a(a)(2), (4); 11 C.F.R. sec. 110.2
(FOOTNOTE 95) 2 U.S.C. sec. 441a(a)(1)(A); 11 C.F.R. sec. 110.1.
(FOOTNOTE 96) 2 U.S.C. sec. 438(a)(6).
An individual may contribute up to $1,000 to any candidate for each primary, runoff, or general election. An individual may contribute no more than $5,000 per year to any other political committee, $20,000 per year to a national political party committee, and $25,000 in total in a calendar year. (FOOTNOTE 97) Candidates, however may contribute unlimited amounts of their own money to their own campaigns. (FOOTNOTE 98)
(FOOTNOTE 97) 2 U.S.C. sec. 441a(a)(1), (3); 11 C.F.R. secs. 110.1, 110.5.
(FOOTNOTE 98) See Buckley v. Valeo, 424 U.S. 1, 51-54 (1976) (per curiam).
Political contributions may not be made by foreign nationals not lawfully admitted to the United States for permanent residence, (FOOTNOTE 99) by public utility holding companies (FOOTNOTE 100) and by one person in the name of another. (FOOTNOTE 101) Cash contributions of over $100 are also prohibited. (FOOTNOTE 102)
(FOOTNOTE 99) 2 U.S.C. sec. 441e; 11 C.F.R. sec. 110.4(a).
(FOOTNOTE 100) 15 U.S.C. sec. 79l(h).
(FOOTNOTE 101) 2 U.S.C. sec. 441f; 11 C.F.R. sec. 110.4(b).
(FOOTNOTE 102) 2 U.S.C. sec. 441g; 11 C.F.R. sec. 110.4(c).
The following is a brief list of specific statutory prohibitions relating to campaign activities by Members and employees of the House.
A Member or employee of the House may not --
(1) promise to use support or influence to obtain Federal employment for anyone in return for a political contribution (18 U.S.C. sec. 211).
(2) deprive, attempt to deprive, or threaten to deprive anyone of employment or any other benefit, provided for or made possible by an Act of Congress appropriating relief funds, because of that person's political affiliation (18 U.S.C. sec. 246).
(3) pay or offer to pay any person to vote or to withhold a vote or to vote for or against any candidate in a Federal election (18 U.S.C. sec. 597).
(4) solicit, accept, or receive an expenditure in consideration of a vote or the withholding of a vote in a Federal election (18 U.S.C. sec. 597).
(5) use any appropriation by Congress for work relief or for increasing employment, or exercise any authority conferred by any appropriations act, for the purpose of interfering with, restraining, or coercing any individual in the exercise of the right to vote (18 U.S.C. sec. 598).
(6) as a candidate, directly or indirectly promise to appoint any person to any public or private position for the purpose of procuring support for that candidacy (18 U.S.C. sec. 599).
(7) promise employment or any other benefit provided for or made possible by any Act of Congress as a reward for political activity or support (18 U.S.C. sec. 600).
(8) cause or attempt to cause anyone to make a political contribution by denying or threatening to deny any government employment or benefit provided for or made possible, in whole or in part, by any Act of Congress (18 U.S.C. sec. 601).
(9) solicit political contributions from any other Federal employee or from any person receiving salary or compensation for services from money derived from the United States Treasury (18 U.S.C. sec. 602).
(10) (staffers only) make a political contribution to any Member of Congress who is one's employer or employing authority (18 U.S.C. sec. 603).
(11) solicit or receive political contributions from persons known to be entitled to or to be receiving relief payments under any Act of Congress (18 U.S.C. sec. 604).
(12) furnish, disclose, or receive for political purposes the names of persons receiving relief payments under any Act of Congress (18 U.S.C. sec. 605).
(13) intimidate any Federal officer or employee to secure political contributions (18 U.S.C. sec. 606).
(14) solicit or receive political contributions in a Federal building, other than unsolicited contributions that are transferred to a political committee within seven days (18 U.S.C. sec. 607).
(15) knowingly accept a contribution in excess of limitations under Federal law of $1,000 to a candidate from any person or $5,000 to a candidate from a multicandidate political committee (2 U.S.C. sec. 441a(a), (f)).
(16) receive any political contribution from the organizational or treasury funds of a national bank, corporation, or labor organization (2 U.S.C. sec. 441b(a)).
(17) knowingly solicit contributions from Government contractors (2 U.S.C. sec. 441c(a)(2)).
(18) make an expenditure for any general public political advertising that anonymously advocates the election or defeat of a clearly identified candidate (2 U.S.C. sec. 441d).
(19) solicit, accept, or receive a contribution from a foreign national (2 U.S.C. sec. 441e).
(20) knowingly accept a contribution made by one person in the name of another person (2 U.S.C. sec. 441f).
(21) fraudulently misrepresent oneself as speaking or acting on behalf of a candidate (2 U.S.C. sec. 441h).
To the extent that an individual may make political contributions or expenditures as discussed above, the individual may not --
(a) make cash contributions to any candidate which total more than $100 (2 U.S.C. sec. 441g);
(b) make contributions in excess of $1,000 per election to any candidate, $5,000 per calendar year to political committees, or $20,000 per calendar year to national party committees, or make contributions aggregating over $25,000 per calendar year (2 U.S.C. sec. 441a(a)).
(c) make a contribution in the name of another (2 U.S.C. sec. 441f).
(d) make independent expenditures in excess of $250 without filing a report with the Federal Election Commission (2 U.S.C. sec. 434(c)(1)).
(FOOTNOTE 1) Originally issued September 14, 1982, this opinion has been updated to reflect changes to applicable rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716.
General Interpretation of House Rule XLIII, Clause 6, and House Rule XLV.
The Committee has received an inquiry concerning the application of House Rule XLIII, clause 6, and Rule XLV, to the use by a Member of campaign funds to advertise or promote a town meeting in his district and in areas newly added to the district by reapportionment after notice of the meeting has been mailed under the frank.
House Rule XLIII, clause 6, prohibits a Member from expending funds from his campaign account that are not attributable to ``bona fide campaign or political purposes.'' Rule XLV, clause 1, bars a Member from maintaining, or having maintained for his use, ``an unofficial office account.'' These provisions were included in the amendments to the House Rules made by H. Res. 287, 95th Congress, adopted pursuant to the recommendations of the Commission on Administrative Review. The Commission, in explaining the purpose of these rules, observed (Financial Ethics, H.R. Doc. No. 95-73, 95th Congress, 1st Session 23 (1977)):
The Commission strongly believes that a wall should be built between political expenses and public money, that private money should not be relied upon to pay for the conduct of the House's official business. It regards such a wall as critically important to the integrity of the representative process . . . .
Although federal statutory law (2 U.S.C. sec. 439a) generally would allow a Member to use excess campaign funds to defray ordinary and necessary expenses incurred in connection with holding office, the amendment to House Rule XLIII, clause 6, made by H. Res. 287, 95th Congress, specifically prohibits this practice. As the Select Committee on Ethics observed in its Final Report (H.R. Report No. 95-1837, 95th Congress, 2nd Session (1979)): ``The intent of this rule is to restrict the use of campaign funds to politically related activities and to thus prohibit their conversion to personal use or to supplement official allowances.'' Rule XLV has a similar purpose. It was intended to eliminate the potential for ``influence peddling'' through private financing of the official expenses of Members of Congress.'' See Financial Ethics, supra, at 18.
In adopting these rules, the House was aware that ``there are gray area expenditures which could be classified (as) either political or official . . . .'' See Final Report of the Select Committee on Ethics, supra. The rules do not include any definition of ``political'' or ``official'' expenses. As Representative Frenzel observed during the debate on H. Res. 287, 95th Congress (123 Cong. Rec. 5900 (March 2, 1977):
What is political is a matter of fact rather than of definition . . . .
(W)hat we have tried to do is to confine expenses from political accounts or volunteer committee accounts to expenses that are political. By and large, that definition will be left up to the Member and to his volunteer committee, and as it is broadly defined under the election law. (Emphasis added.)
The Select Committee on Ethics, in its Final Report, supra, also expressed the view that Members should make the determination as to whether gray area expenditures are to be classified as political or official.
This Committee agrees that the determination as to whether a particular expense is for political or official purposes should be made by the individual Member. A gathering of a Member's constituents at a ``town meeting'' could be either a political (campaign) event, or an official (representative) one. In such a case, the Member is free to use his judgment in defining it as political or official. However, this Committee is of the view that once the Member makes his determination, he is bound by it. A single event cannot, for purposes of the House rules, be treated as both political and official.
When a Member sends announcements of a town meeting under the frank, he has thereby made the decision that the event is an official one. Under Federal law, the franking privilege may only be used in the conduct of official business. 39 U.S.C. sec. 3210(a)(1). Having thus defined the event as an official one, he may not then use campaign funds (Rule XLIII, clause 6) or any other private funds (Rule XLV) to conduct, promote, or advertise the event. (It is noted that Rule XLV was intended to prohibit the expenditure of private monies for official purposes even if no particular account or repository as such is maintained. See the colloquy between Representatives Panetta and Obey during the debate on H. Res. 287, 95th Congress, 124 Cong. Rec. 5941 (March 2, 1977).
Because the town meetings that are the subject of this opinion were promoted in the first instance by means of the frank, they thereby become official and representational functions and it is an improper mixture of public and campaign funding to promote such official town meetings as political events. In a case such as this, the wall between public and private funding is easily placed.
Having stated the general rule that certain events or activities may be deemed ``official'' or ``political'' but not both, and that the Member must exercise his judgment in making such determinations, there are long established practices not offensive to the principle of separation that are not affected by this Advisory Opinion.
One such practice is a campaign committee making use of materials originally generated and used solely in the course of the Member's official and representational duties once the official use of the material is exhausted. For example, a Member may, at official expense and by means of the franking privilege, reproduce and distribute otherwise frankable reprints from the Congressional Record, radio and television programs, correspondence from public officials, etc. The Committee believes that Rule XLV, which prohibits outside contributions for official purposes, does not ban a Member from later distributing such items at campaign committee expense provided all the expenses associated with reproducing and distributing the material are paid from campaign funds and the material itself or the context in which it is presented clearly establishes its campaign or political purposes and thus its non-official use, so that there would be no appearance that private funds are supplementing official allowances.
Another such practice occurs if an individual or organization without the Member's consent, expends funds or donates services to advertise or promote some official or representational activity of the Member. For example, no violation would occur if a radio to television station in a Member's district promoted a Member's previously announced town meeting in public service announcements.
(FOOTNOTE 1) Originally issued April 6, 1977, this opinion has been updated to reflect changes to applicable rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, and the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447.
Under House Rules, may a Member of the House or the spouse of a Member solicit cash gifts of less than $250 (FOOTNOTE 2) for personal use through a direct mass mailing?
(FOOTNOTE 2) When this opinion was originally issued, the gift rule prohibited acceptance of gifts of more than $100 from sources with a direct interest in legislation. The Ethics Reform Act of 1989 raised the acceptance threshold to $200, but expanded the prohibition to all sources (other than relatives). The Legislative Branch Appropriations Act raised the limit on what may be accepted from any source, effective January 1, 1992, to ``minimal value'' as established by 5 U.S.C. sec. 7342(a)(5) or $250, whichever is greater.
A Member of the House has requested an advisory opinion as to whether his proposal to solicit gifts of less than $250 for personal use would be in violation of House Rule XLIII.
House Rule XLIII, clause 4, prohibits acceptance of gifts aggregating over $250. Since the proposal would solicit only gifts of less than $250, it would not be in violation of clause 4. (FOOTNOTE 3)
(FOOTNOTE 3) Note, however, that since issuance of this opinion, the Ethics Reform Act of 1989 enacted 5 U.S.C. sec. 7353, which prohibits Government officials, including Members, officers, and employees of the House, from soliciting ``anything of value'' from a source that may be affected by the performance or non-performance of official duties, except as authorized by the Committee on Standards of Official Conduct. See the discussion of ``solicitation'' and this Committee's notice on the subject of October 9, 1990, prohibiting solicitation of personal financial benefits, in Chapter 2 of this Manual.
However, Rule XLIII, clause 7, appears to have direct application to the proposed plan to solicit gifts. Before March 3, 1977, Rule XLIII, clause 7, read as follows:
A Member of the House of Representatives shall treat as campaign contributions all proceeds from testimonial dinners or other fund-raising events if the sponsors of such affairs do not give clear notice in advance to the donors or participants that the proceeds are intended for other purposes.
This provision was designed to deal with situations in which donations were given to Members under the mistaken notion that they were to be used for campaign purposes when, in fact, they were treated as personal gifts. Hence, language was adopted which specified that unless advance notice was given, proceeds from fund-raising events could not be converted to personal use.
The House Commission on Administrative Review recommended that proceeds from testimonial dinners and other fund-raising events should not be allowed to be converted to personal use under any circumstances. Effective March 3, 1977, H. Res. 287 amended clause 7 to read simply:
A Member of the House of Representatives shall treat as campaign contributions all proceeds from testimonial dinners or other fund-raising events.
In a technical sense, then, the propriety of the proposal turns on the interpretation of a ``fund-raising event.'' There was no legislative history in defining the term fund-raising event when Rule XLIII was adopted in 1968.
But in view of the widespread use of mass mailings to raise funds (direct mail solicitation has become a principal fund-raising technique since 1968), it would appear that the proposal under consideration constitutes a fund-raising event. In the age of computerized mass mailings, it is unnecessary for people to gather together in a common place on a particular date to constitute a ``fund-raising event.''
Additionally, Rule XLIII, clause 2, would appear to have applicability in this case. The provision states:
A Member, officer, or employee of the House of Representatives shall adhere to the spirit and letter of the Rules of the House of Representatives and to the rules of duly constituted committees thereof.
A major thrust of the provisions contained in the new House Rules adopted March 2, 1977, was to severely limit the potential for Members to ``cash in'' on their positions of influence for personal gain. Therefore, a limitation on outside earned income was proposed and adopted. A proposal to abolish unofficial office accounts was offered and adopted. A proposal to prohibit the conversion of political funds to personal use was adopted. And the proposal discussed above to treat all proceeds from fund-raising events as campaign contributions was also adopted. Therefore, it would appear that a proposal to solicit funds for personal use would be contrary to the ``spirit'' of the House Rules adopted pursuant to H. Res. 287.
The final question concerns the propriety of a spouse raising funds through mass mail solicitation for the benefit of the Member. While the Select Committee recognizes the basic independence of the spouse, the spouse under these circumstances would be acting essentially on behalf of the Member. Thus, the Member would be conducting indirectly the very activities he would be prohibited from engaging in directly.
Consequently, the mass mail solicitation of funds by a spouse for a Member's use also appears to violate the ``spirit'' of House Rules.
A direct mail solicitation by a Member of the House or the spouse of a Member constitutes a ``fund-raising event'' for purposes of House Rule XLIII, clause 7. Proceeds from a ``fund-raising event'' for a Member must be treated as ``campaign contributions'' and cannot be converted to personal use by the Member. Therefore, any such attempt to raise funds for personal use through a mass mailing would be in violation of House Rule XLIII, clause 7. Additionally, any such activity would appear to be contrary to the spirit of House Rules and, therefore, in violation of House Rule XLIII, clause 2.
(FOOTNOTE 1) Originally issued May 11, 1977, this opinion has been updated to reflect changes to the applicable rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, and the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447.
The Select Committee has been asked whether a Member could accept proceeds from a fund-raising event for the Member's unrestricted personal use, if the event were sponsored by a group independent of the Member.
House Rule XLIII, clause 7, as amended on March 2, 1977, prohibits the conversion of proceeds from testimonial dinners or other fund-raising events to a Member's personal use. The Select Committee stated in Advisory Opinion No. 4 that a mass mailing constituted a fund-raising event for purposes of Rule XLIII, clause 7, and concluded that neither a Member nor his spouse could directly solicit funds for personal use by a fund-raising technique such as a mass mailing.
An additional question has been asked which concerns the acceptance of funds for a Member's unrestricted personal use that are raised by a group independent of the Member, his spouse, staff, or campaign committee.
As a general proposition, House Rules do not affect the actions of any individuals or organizations which are independent of a Member of Congress. The issue before the Select Committee, however, is not whether an independent group may conduct a fund-raising event, but whether a Member may accept the proceeds of such an event given in his behalf when such proceeds are for the Member's unrestricted personal use.
A major thrust of the provisions contained in the new House Rules was to severely limit the potential for Members of Congress to use their positions of influence for personal gain. In this context, therefore, it is irrelevant whether the Member himself solicits these funds, or whether the Member accepts funds for personal use. Thus, to allow a Member to accept such proceeds if raised by a paper ``Dinner Committee,'' ``Fund-raising Committee,'' or similar subterfuge would render Rule XLIII, clause 7, meaningless.
Finally, the Committee recognizes the distinction between the treatment of proceeds from a fund-raising event for purposes of Rule XLIII, clause 7, and acceptance of gifts for purposes of Rule XLIII, clause 4. Clause 4 does not prohibit the acceptance of gifts. Clause 7, however, addresses gifts from fund-raising events, specifying that proceeds from such events should not be treated as personal gifts, but as campaign contributions.
Dear Colleague:
The purposes of this advisory letter is to provide Members with guidance concerning political activities which may be undertaken by Members, officers, and employees of the House of Representatives. The letter is occasioned by the recent issuance of this Committee's report concerning the results of its investigation of an alleged improper political solicitation. See H. Rept. 99-277, issued September 19, 1985. Since publication of the report, various Members have indicated (both formally and informally) their desire that the Committee provide some brief recitation and analysis of those activities which may be engaged in by Members and their staffs. The Committee believes and agrees that these requests for guidance merit a prompt and clear response to the issues raised. Accordingly, the following discussion is intended to clarify the Committee's thoughts and approach to such matters.
The issues raised by solicitation of a Federal employee (i.e., someone on a Member's staff) was addressed in detail in the Committee's recent report of September 19, 1985. In sum, it is illegal to coercively solicit a political contribution from such an individual. Both case law and the Department of Justice take the approach that, under 18 U.S.C. sec. 602, an individual is subject to prosecution where it is shown that a Federal employee was pressured to make a political contribution to a Federal election, such as one involving the election of a Member of Congress. The Committee adopts this analysis of the statute. In so doing, the Committee is mindful of the view that some have urged that coercion not be considered an element of the offense addressed by 18 U.S.C. sec. 602. The Committee is not persuaded that this would be a proper reading of the statute in light of the expressed analyses of the Department of Justice and the courts in implementing its provisions. While it may well be that coercion should not be considered an element of the crime, this is a matter which should be specifically addressed in legislation. Until such time, this Committee will treat as improper, subject to investigation and, as appropriate, sanction, any indication that an individual subject to this Committee's jurisdiction has applied coercion to a Federal employee for the purpose of extracting a political contribution.
The Committee's September 19, 1985, report also addressed the matter of soliciting political contributions in a Federal building, an activity which is rendered illegal by 18 U.S.C. sec. 607. As reflected in the report, this Committee takes the view that section 607 embraces not only the location where a solicitation is received, but also the location from which it is prepared or distributed. It is this Committee's position that under no circumstances should any Federal resources be utilized to support the implementation of a political solicitation activity. Such resources would include using office space to draft, edit, type, duplicate, or assemble mailing materials, as well as the ultimate distribution of such matter. Similarly, this prohibition would also apply to the use of staff resources on ``official'' time to conduct such activities.
The September 19, 1985 report did, however, take the view that sections 602 and 607 are complementary provisions -- the former insulating Federal employees from political shakedowns, the latter insulating the Federal workplace from such activities. This is not to say that noncoercive solicitations in a Federal area would avoid the attention and concern of this Committee. Indeed, the Committee emphasizes its view that no activities of a political solicitation nature should occur with the support of any Federal resources (staff or space) in order to avoid any question that a violation of 18 U.S.C. sec. 607 has occurred.
While not a focus of the recent report, several questions have been raised regarding the propriety of Members receiving political contributions in their offices. In this connection, the Committee invites Members' attention to 18 U.S.C. sec. 607(b). This provision states that the prohibition against receiving solicitations in a Federally protected area does not apply to contributions received by staff in a Member's office so long as the contribution was not solicited in a manner which directs the contributor to mail or deliver the contribution to a Federal area (i.e., Member's office) and provided that such contributions are transferred within seven days of receipt to a political committee. The Department of Justice guidance on this aspect of the statute also clearly indicates that the Department's Criminal Division believes Congress intended that Members be permitted to personally receive unsolicited contributions in their offices to the same extent as their staffs. The Committee concurs with this interpretation of the statute.
Another issue on which guidance has been sought relates to the propriety of a Member receiving a political contribution from an individual on that Member's staff. Such contributions are expressly prohibited by law. The provisions of 18 U.S.C. sec. 603 make it a crime for an individual to make a political contribution to the employer or employing authority of the person making the contribution regardless of whether the employee is coerced or volunteers to make the contribution.
The September 19, 1985, report notes that Member to Member solicitations are not viewed as within the prohibitions of either 18 U.S.C. sec. 602 or 607 even where such solicitations occur in a Member's office. Indeed, there is precedent in the House of Representatives supporting this conclusion. Thus, while Members may engage in such activities, Member to staff solicitations, regardless of where they occur, raise the issues discussed above concerning application of 18 U.S.C. sec. 602. It is for this reason the Committee admonishes Members to be extremely cautious when pursuing political solicitation activities.
The Committee realizes that there well may be other questions relevant to the conduct of political activities not addressed in the foregoing discussion. Should such questions arise, the Committee suggests that interested Members contact the Committee staff in order to receive advice on the matters raised. Finally, the Committee invites all Members' attention to the Ethics Manual for Members, Officers, and Employees of the U.S. House of Representatives, and more specifically Chapter 10 (FOOTNOTE 1) thereof entitled, ``Campaign funds and Practices,'' which contains a detailed discussion of such issues.
(FOOTNOTE 1) Now Chapter 8.
We hope this letter will be of assistance and clarification to you regarding the conduct of political activities.
Sincerely,
Julian C. Dixon
Chairman
Floyd D. Spence
Ranking Minority Member
TO: All Members, Officers, and Employees of the U.S. House of Representatives
FROM: Committee on Standards of Official Conduct Louis Stokes, Chairman James V. Hansen, Ranking Minority Member
Members and congressional staff should be aware of a regulation issued by the Federal Election Commission (FEC) which was recently brought to the attention of this Committee. The regulation casts doubt on the legality of expenditures made by employees on behalf of their employing Members' campaigns, even if they expect swift reimbursement.
Employees of the House of Representatives are not subject to the Hatch Act. They are generally free to engage in either paid or volunteer campaign activities, as long as no official time or resources are used for such purposes, and provided staff are not compelled to do campaign work as a condition of continued congressional employment.
Under 18 U.S.C. sec. 603, a House employee may not make to his or her employing Member ``any contribution within the meaning of section 301(8) of the Federal Election Campaign Act'' (2 U.S.C. sec. 431(8)). Violations are punishable by imprisonment for up to three years and a fine. Staff may volunteer services on behalf of the employing Member since such voluntary efforts are not considered to be a ``contribution.'' See 2 U.S.C. sec. 431(8)(B)(i).
The difficulty arises when a congressional employee finds it necessary to make an outlay on behalf of the campaign of an employing Member which will be reimbursed quickly. The FEC regulation, found at 11 C.F.R. sec. 116.5(b), was promulgated June 27, 1990. It provides in pertinent part as follows:
The payment by an individual from his or her personal funds, including a personal credit card, for the costs incurred in providing goods or services to, or obtaining goods or services that are used by or on behalf of a candidate or a political committee is a contribution . . . .
The exigencies of a congressional campaign may require action by a campaign worker on short notice. An individual may be called upon, for example, to arrange a rental car for campaign use or pick up some yard signs, anticipating prompt reimbursement in each case. Under the above-cited regulation, such an individual is deemed to have made a contribution. If the individual is also a congressional employee of the candidate, the effect of the regulation appears to be to make the contribution a criminal act under 18 U.S.C. sec. 603.
To avoid possible problems, the FEC suggests alternative procedures that may be taken instead of relying on out-of-pocket outlays. Staff engaged in campaign work could be provided with checks drawn on campaign committee accounts, be given authority to use a campaign credit card, or use a campaign petty cash fund for transactions under $100.
Anyone desiring further information, including copies of the Committee's exchange of correspondence with the Federal Election Commission, should contact the Committee's Office of Advice and Education, at (202) 225-3787.