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Below is a condensed version of this topic. For complete guidance please refer to the House Ethics Manual, Chapter 4 on campaign activity.
This section addresses the laws, rules, and standards of conduct on three subjects related to campaign or political contributions:
While the federal gift statute (5 U.S.C. § 7353) broadly restricts the ability of House Members and staff to solicit things of value from virtually anyone, even when no personal benefit to the solicitor is involved, legislative materials concerning the statute state that it does not apply to the solicitation of political contributions.34 Consistent with those materials, the Ethics Committee has long taken the position that the restrictions on solicitation set forth in that statute do not apply to political solicitations. However, in soliciting campaign or political contributions, Members and staff are subject to a number of other restrictions, as follows.
No Knowing Solicitation of Federal Employees. A provision of the federal criminal code, 18 U.S.C. § 602, prohibits Members of Congress and staff (as well as candidates for Congress and other federal employees) from knowingly soliciting any contribution from any other federal officer or employee.
The contributions to which this statute applies are those made to influence a federal election. That is, the term contribution is defined in this statute by reference to the definition stated in the Federal Election Campaign Act (“FECA”) (2 U.S.C. § 431(8)). (As discussed above, “contribution” is defined in the same manner in the statute prohibiting federal employees from making a contribution to their employer, 18 U.S.C. § 603.)
The statute prohibits the “knowing” soliciting of contributions from federal employees. Accordingly, an inadvertent solicitation of a federal employee, such as may occur in a general fundraising campaign aimed at the public at large, would not violate the statute.35 In addition, the statute does not prohibit the receipt of unsolicited contributions from House or other federal employees (although, as previously noted, a separate statute prohibits those employees from making a contribution to their employer).
It is clear both from the terms of 18 U.S.C. § 602 and from its legislative history36 that the solicitation of contributions by House Members from other Members does not violate the statute. It is also permissible under the statute for House and other federal employees to solicit contributions from Members.
No Solicitation in House Offices, Rooms, or Buildings. The prohibition against House Members or employees soliciting campaign or political contributions in or from House offices, rooms, or buildings is very broad. With one minor exception that is discussed below, the prohibition applies to all forms of solicitations – solicitations made in person, over the telephone, or through the mail – and it applies to solicitations of any kind of campaign or political contribution, including contributions subject to FECA, and contributions for a state or local campaign, and so-called “soft money” contributions.
A telephone solicitation from a House office or building would not be permissible merely because the call is billed to a credit card of a political organization or to an outside telephone number, or because it is made using a cell phone in the hallway. Similarly, when a House Member or employee makes solicitation calls somewhere else, such as at one of the campaign committee offices, and has to leave a message, the individual should not leave his or her House office telephone number for the return call. In addition, a fundraising mailing should not be either prepared or assembled in a House room or office, even if no House equipment or supplies are used in the process.
These prohibitions derive from both a provision of the federal criminal code, 18 U.S.C. § 607,37 as well as from rules and standards of conduct of the House. The criminal statute makes it unlawful “to solicit or receive a donation of money or other things of value in connection with a Federal, State, or local election from a person who is located in a room or building occupied in the discharge of official duties.” The statute prohibits the solicitation or receipt of contributions, including “soft money” contributions, by federal officials and from anyone who is located in a federal building occupied by federal officials or employees used to discharge official duties. (The provisions of this statute regarding the receipt of such contributions in those rooms and buildings are discussed below.) The statute by its terms applies to the House office buildings, the Capitol, and district offices.
In addition, the rules issued by the House Office Building Commission concerning the use of the House office buildings prohibit the soliciting of contributions in the buildings other than for certain charitable purposes.38 Moreover, as discussed above, the House rooms, offices, and buildings are considered official resources, and as such, they are not be used for the conduct of any campaign or political activity, including the solicitation of contributions.
However, with one exception,39 the rules and standards of conduct enforced by the Ethics Committee do not prohibit Members from soliciting (or receiving) campaign or political contributions from other Members in the House buildings. Long ago the House took the position that Member-to-Member solicitation is permissible, notwithstanding a criminal statute (predecessor to current 18 U.S.C. § 607) that generally barred political solicitations in federal buildings.40 The Ethics Committee has reiterated that position in a number of advisory memoranda it has issued to the House, the first of which was dated November 21, 1985.
Several points regarding Member-to-Member solicitation in the House buildings should be noted:
No Use of Other Official Resources. The laws, rules, and standards of conduct discussed above that generally prohibit the use of official House resources for campaign or political activity certainly prohibit their use in soliciting campaign or political contributions. The resources subject to this prohibition include office equipment, such as the computers, telephones and fax machines, office supplies, official stationery, and congressional staff time. House employees may be involved in soliciting campaign contributions only on their own time and outside of congressional space, as discussed above.
No Use of a Facsimile of Official Stationery. Later in this chapter, the rules on letterhead used for campaign purposes are discussed. Those rules clearly apply to any letter that solicits campaign or political contributions.
No Link With an Official Action or Special Access. The chapter on gifts makes the point that a House Member or employee should never accept any gift that is linked to any official action that he or she has taken or is being asked to take, and it includes a discussion on the criminal bribery and illegal gratuities statutes. Similarly, no solicitation of a campaign or political contribution may be linked to an action taken or to be taken by a Member or employee in his or her official capacity. An early work on congressional ethics addresses this subject as follows:
It is probably not wrong for the campaign managers of a legislator . . . to request contributions from those for whom the legislator has done appreciable favors, but this should never be presented as a payment for the services rendered. Moreover, the possibility of such a contribution should never be suggested by the legislator or his staff at the time the favor is done. Furthermore, a decent interval of time should be allowed to lapse so that neither party will feel that there is a close connection between the two acts. Finally, not the slightest pressure should be put upon the recipients of the favors in regard to the campaign.41
The Ethics Committee has long advised Members and staff that they should always exercise caution to avoid even the appearance that solicitations of campaign contributions are connected in any way with an action taken or to be taken in their official capacity.
Example 8. A House staff member is working with representatives of a corporation on legislation supported by that corporation. The staff member may do campaign work consistent with the rules set out above, including soliciting contributions. However, at least while the staff member is doing that legislative work, and for a reasonable period thereafter, he should not solicit contributions from the representatives of that corporation.
Example 9. As part of its decision-making process on whether to continue to fund a particular Defense Department procurement, a committee sponsors an official fact-finding trip to the facilities of the manufacturer. Company officials propose to hold a campaign fundraiser for a participating Member while he is in town. The Member should decline the suggestion. (If such a trip were instead sponsored and paid for by the manufacturer, Member attendance at a fundraiser during the course of the trip may be precluded in any event by FEC rules. See Chapter 3 of the House Ethics Manual.)
Furthermore, a Member should not sponsor or participate in any solicitation that offers donors any special access to the Member in the Member’s official capacity. In this regard, in 1987 a Senate Committee Chairman invited lobbyists and PAC directors to join a “Chairman’s Council,” the members of which would donate $10,000 to his campaign and have breakfast with him once a month, at which legislative matters could be discussed.42 While the Senator dissolved the club soon after it was publicized,43 later in the year the Senate Ethics Committee issued a ruling on whether Senators may offer membership in policy discussion groups in return for campaign contributions. In discussing the matter, the Senate Committee observed:
Offering campaign contributors access to those discussions [of policy and legislative issues] in direct return for campaign contributions creates the appearance that contributors receive special access to the Members, and thereby exercise undue influence on the legislative process.
The Senate Committee’s ruling was as follows:
While solicitations offering access to policy discussion groups may violate no law or Senate rule, they nonetheless affect public confidence in the Senate. Therefore, Senators should not make solicitations which may create the appearance that, because of a campaign contribution, a contributor will receive or is entitled to either special treatment or special access to the Senator.44
House Members should adhere to the same rule with regard to official access.
Do Not Direct Contributions to a House Office. A solicitation for campaign or political contributions should not in any way request or suggest that the recipient mail or deliver a contribution to a House office. As explained immediately below, federal law allows the receipt of a contribution in a congressional office, but only if the contribution arrives there unexpectedly. Accordingly, for example, a written solicitation should not include any House office address. (For that matter, a House office address or telephone number should not be included on any political communication.) Likewise, oral solicitations should not contain any suggestion that response may be made to the congressional office.
The gift rule (House Rule XXV, clause 5) prohibits House Members and staff from accepting any gift except as specifically provided in the rule. One of the gifts that Members and staff may accept under a provision of the rule (clause 5(a)(3)(B)) is:
[a] contribution, as defined in section 301(8) of the Federal Election Campaign Act of 1971 (2 U.S.C. 431) that is lawfully made under that Act, [and] a lawful contribution for election to a State or local government office.
Accordingly, acceptance of an unlawful contribution under either FECA or applicable state law may violate the House gift rule as well.
Receipt of a Contribution in a House Office. A provision of the federal criminal code, 18 U.S.C. § 607, generally prohibits the receipt of federal campaign contributions “in a room or building occupied in the discharge of official duties by an officer or employee of the United States.” However, the statute includes, in subsection (b), an exception stating that the prohibition does not apply to contributions received by congressional staff, provided that two requirements are satisfied:
Accordingly, receipt of a contribution in a House office is permissible under the statute only if the contribution arrives there unexpectedly. Thus, as stated above, a solicitation should never request or suggest that a contribution be sent or delivered to a House office, and furthermore, Members and employees may not assent in advance to the sending or delivery of a contribution to a House office.
Example 10. In a conversation with an individual who will be visiting the Member in the congressional office, a staff person learns that the individual intends to give the Member a campaign contribution during the visit. The staff person should tell the individual that the Member will not be able to accept the contribution in the office and that an alternative means of tendering the contribution will have to be used.
However, merely because a contribution does not violate 18 U.S.C. § 607 in that it was presented or received in the office unexpectedly does not necessarily mean that the contribution may be accepted. A contribution that is linked with an official action that a Member or employee has taken or is being asked to take may not be accepted. This would occur, for example, if a purpose of an individual’s visit to the office, in addition to presenting a contribution, is to urge the Member to support a particular piece of legislation.
The requirement of 18 U.S.C. § 607 that a contribution be transferred to the campaign within seven days must be satisfied without use of any official resources. Campaign envelopes and stamps may be used to forward such contributions, and thus it may be desirable for a congressional office to have a supply of those envelopes and stamps for use in forwarding both contributions and campaign-related inquiries that are received in the office.
A Contribution Linked to an Official Action May Not Be Accepted. No solicitation of a campaign or political contribution may be linked to any action taken or to be taken by a Member or employee in his or her official capacity.
In a similar vein, a Member or employee may not accept any contribution that the donor links to any official action that the Member or employee has taken, or is being asked to take. In this respect, a campaign or political contribution is treated like any other gift, and acceptance of a contribution in these circumstances may implicate a provision of the federal gift statute (5 U.S.C. § 7353) or the criminal statutes on bribery and illegal gratuities.
Further information on this subject is available in Chapter 2 of the House Ethics Manual. Please note, however, that while certain token gifts of appreciation (such as candy or flowers) for an official action may be acceptable, no campaign contribution that is linked to an official action is ever acceptable.
Example 11. An office receives a letter from a constituent requesting casework assistance. A check made out to the Member’s campaign is enclosed with the letter, but the letter makes no reference to the check. While the office may assist the constituent, the check must be returned to the constituent. Because the check was sent with a request for assistance, it is impermissibly linked with an official action.
A solicitation for campaign or political contributions may not be linked with an official action taken or to be taken by a House Member or employee, and a Member may not accept any contribution that is linked with an action that the Member has taken or is being asked to take. A corollary of these rules is that Members and staff are not to take or withhold any official action on the basis of the campaign contributions or support of the involved individuals, or their partisan affiliation. Members and staff are likewise prohibited from threatening punitive action on the basis of such considerations.
Questions in this area have arisen most frequently on the matter of casework, and on this subject, the Ethics Committee has long advised Members and staff that they are not to give preferential treatment to casework requests made by the Member’s supporters or contributors. Instead, all requests for casework assistance are to be handled according to their merits. Advisory Opinion No. 1 of the Standards Committee, which was issued in 1970, states that one of the basic standards of conduct regarding casework is the following:
A Member’s responsibility in this area is to all his constituents equally and should be pursued with diligence irrespective of political or other considerations.45
Essentially the same point was made in a report issued by the Senate Select Committee on Ethics in connection with the “Keating Five” case:
The cardinal principle governing Senators’ conduct in this area is that a Senator and a Senator’s office should make decisions about whether to intervene with the executive branch or independent agencies on behalf of an individual without regard to whether the individual has contributed, or promised to contribute, to the Senator’s campaigns or other causes in which he or she has a financial, political or personal interest.46
While the guidance set forth above is specifically addressed to the handling of casework matters, that guidance is applicable to all official actions taken by Members and staff, including with regard to legislation. In this regard, one of the key provisions of the Code of Ethics for Government Service states, in 5, that government officials should “[n]ever discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not.” The Code further provides, in 10, that “public office is a public trust,” and thus the public has a right to expect House Members and staff to exercise impartial judgment in performing their duties.
More generally, one of the ultimate purposes of the ethics rules is to help ensure that each governmental action is taken on the merits of the particular question, rather than any extraneous factors. On this point, one scholar on government ethics has stated: “Ethics rules, if reasonably drafted and reliably enforced, increase the likelihood that legislators (and other officials) will make decisions and policies on the basis of the merits of issues, rather than on the basis of factors (such as personal gain) that should be irrelevant.”47
34 136 Cong. Rec. H1647 (daily ed. April 24, 1990) (regarding technical corrections to the Ethics Reform Act of 1989).
35 See 113 Cong. Rec. 25,703 (Sept. 11, 1973), and H. Rep. 96-422, supra note 22, at 25.
36 125 Cong. Rec. 36,754 (1979) (statement of Sen. Hatfield).
37 The statute was amended by § 302 of the Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 96 (March 27, 2002).
38 Rules of the House Office Building Commission were last revised in February 1999 (available from the Speaker’s office).
39 See House Rule 4, cl. 7 (“A Member, . . . officer, or employee of the House, or any other person entitled to admission to the Hall of the House or rooms leading thereto by this rule, may not knowingly distribute a political campaign contribution in the Hall of the House or rooms leading thereto.”).
40 6 Cannon’s Precedents of the House of Representatives § 401 (1936), concerning a resolution on this matter that was approved by the House in 1913.
41 Paul H. Douglas, Ethics in Government 89-90 (1952).
42 Wash. Post, Feb. 3, 1987, at A1.
43 Id., Feb. 7, 1987, at A1.
44 Senate Select Comm. on Ethics, Interpretative Ruling No. 427 (Sept. 25, 1987).
45 The full text of Advisory Opinion No. 1 is reprinted in the appendices to this Manual.
46 Senate Select Comm. on Ethics, Investigation of Sen. Alan Cranston, S. Rep. 102-223, 102d Cong., 1st Sess. 11-12 (1991) (footnote omitted).
47 Congressional Ethics Reform: Hearings Before the Bipartisan Task Force on Ethics, U.S. House of Representatives, 101st Cong., 1st Sess. 113 (1989) (statement of Dennis F. Thompson).