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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.
Once House employees have completed their official duties, 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 facilities, or otherwise use official resources. Executive branch personnel are subject to restrictions on partisan political activity by the Hatch Act (5 U.S.C. § 7321 et seq.), but those restrictions do not apply to congressional employees.16
It should be stressed that although House employees are free to engage in campaign activities on their own time, in no event may a Member or office compel a House employee to do campaign work. To do so would result in an impermissible official subsidy of the Member’s campaign.17 The prohibition against coercing staff or requiring staff members to do campaign work is quite broad. It forbids Members and senior staff from not only threatening or attempting to intimidate employees regarding doing campaign work, but also from directing or otherwise pressuring them to do such work.
What constitutes a staff member’s “own time” is determined by the personnel policies that are in place in the employing office. Time that is available to a staff member, under those policies, to engage in personal or other outside activities may instead be used to do campaign work, if the individual so chooses. This free time may include, for example, a lunch period, time after the end of the business day, and annual leave. However, a Member may not adjust the work requirements of the congressional office, or add unpaid interns during the campaign, in order to create more “free” time for staff to do campaign work. To help ensure compliance with the rules, office policies on employee leave and other free time should be in writing and distributed to all employees.
In addition to engaging in campaign activity while on annual leave or during other free time, employees may do so by –
However, prior to going on LWOP status, an employee should carefully review the requirements for that status that are set out in the Members’ Handbook and the Committees’ Handbook issued by the Committee on House Administration and should consult with staff of that committee as necessary.
Employees who do campaign work while remaining on the House payroll should keep careful records of the time they spend on official activities and, separately, on campaign activities, and demonstrate that campaign work was not done on official time. There is no set format for maintaining such time records.
The rules governing campaign work by House employees were implicated in a Committee on Ethics disciplinary case that was completed in the 106th Congress.19 In that case the Committee determined that a Member had violated the House Code of Official Conduct in that his staff members worked for his campaign during regular office hours without taking annual leave or going on Leave Without Pay status, or taking any other steps to ensure that those services were rendered during time that was properly deemed the employee’s “own time.”20 The employees in that office took “administrative leave” whenever they performed campaign work. However, they were paid their full congressional salary while on “administrative leave,” and the office had no system in place to ensure that time spent in that status was recorded and was either made up at alternate times or charged as vacation time.21
All House employees who do campaign work should bear in mind that they continue to be bound by the laws and rules applicable to House employees. This applies to employees who go to part-time status, and it applies as well to employees on LWOP status, who continue to be employees of the House (and continue to be eligible for certain employee benefits) even though they are not receiving compensation from the House. House employees should take particular note of the following.
The Prohibition Against Making a Contribution to One’s Employing Member. A provision of the federal criminal code, 18 U.S.C. § 603, makes it unlawful for any federal officer or employee to make certain campaign contributions to “the employer or employing authority of the person making the contribution.” Accordingly, an employee of a Member office is prohibited from making a “contribution” as that term is used in the statute to his or her employing Member.
The contributions to which the statute applies are those made to influence a federal election – that is, the term contribution is defined in the statute by reference to the definition of that term stated in the Federal Election Campaign Act (FECA) (2 U.S.C. § 431(8)). The statute goes on to provide that a contribution to an “authorized committee” as defined in the Act (id. § 432(e)(1)) is considered a contribution to the individual who authorized the committee.
The prohibition against an employee making such a contribution to the individual’s employing Member is absolute. A House employee may not make such a contribution even if the contribution was entirely unsolicited and the employee genuinely wishes to make the contribution. As a result of this statute, a House employee may not purchase a ticket to a campaign fundraising event for the employing Member.23
The definition of the term contribution in the FECA is quite detailed, setting out a number of items that either do or do not constitute a contribution for purposes of the Act.24 The definition is elaborated upon in the implementing regulations issued by the Federal Election Commission (FEC).25 Staff members who do campaign work need to be familiar with those provisions so as to avoid making a prohibited contribution to their employing Member.
In particular, staff members should be aware that under FEC regulations, most outlays that an individual makes on behalf of a campaign are deemed to be a contribution to that campaign from that individual.26 This is so even if it is intended that the campaign will reimburse the individual promptly. The major exception to this rule is for outlays that an individual makes to cover expenses that he or she incurs in traveling on behalf of a campaign.27
Accordingly, a House employee should not make any outlay on behalf of the employing Member’s campaign, other than outlays for the employee’s personal travel expenses that are consistent with the FEC regulations, or for another purpose that is deemed not to constitute a contribution under FECA or the regulations.28
Example 6. A Member’s campaign wishes to purchase some souvenirs from the House gift store to give as gifts to the Member’s supporters. An employee of the Member’s congressional office may not purchase the items with her own money or a personal credit card, even if the campaign makes arrangements to reimburse her promptly. However, the Member may purchase the souvenirs with his personal funds and receive reimbursement from the campaign.
Thus when a House employee undertakes to do campaign work – on the employee’s own time and outside of congressional space, in accordance with the rules summarized above – the individual should make appropriate arrangements with the campaign to ensure that he or she will not be called upon to make any improper outlays. The arrangements may include, for example, providing the individual, in advance, with any funds that might be needed to cover anticipated campaign expenses, or providing the individual with use of a campaign credit card.
While the law prohibits House employees from making campaign contributions to their employing Member, the law does not prohibit them from making a campaign contribution to any other candidate, including another House Member. In addition, the law does not prohibit House employees from making contributions to multicandidate political committees, such as a PAC or the Democratic or Republican Congressional Campaign Committees, even though some of the proceeds received by such committees may eventually be spent for the benefit of the contributor’s employee. In making such a contribution, however, an employee should not earmark it for use in the campaign of the employing Member, because that could be deemed a contribution from the employee to the Member.29
With regard to those contributions from House employees that are not prohibited by 18 U.S.C. § 603, both Members and staff should bear in mind that a separate provision of the federal criminal code, 18 U.S.C. § 606, prohibits the use of intimidation to secure such contributions. Specifically, that statute makes it unlawful for a Senator, Representative, or federal officer or employee to discharge, demote, or promote another federal officer or employee, or to threaten or promise to do so, for making or failing to make “any contribution of money or other valuable thing for any political purpose.”
Requirement That Each Employee Perform Duties Commensurate With Compensation. Under House Rule XXIII, clause 8 a Member is always responsible for ensuring that each of his or her employees performs official duties that are commensurate with the compensation that the employee receives from the House. Thus when it is anticipated that an employee will be assuming significant campaign duties, it may be necessary for the employing Member to make an appropriate reduction in the employee’s House pay.
Certainly an appropriate reduction in salary is necessary when a full-time employee goes to part-time status in the congressional office in order to do campaign work. Members and staff should also bear in mind that bonuses, including “lump sum” payments, are for the performance of official duties only, and they are not to serve as compensation or a reward for campaign work.30
The Gift Rule. The provisions of the gift rule (House Rule XXV, clause 5) that apply with regard to campaign and political activity are summarized below at the end of this chapter. Members as well as staff are subject to those provisions of the gift rule when engaging in campaign or political activity. A full explanation of the gift rule is found in Chapter 2 of the House Ethics Manual.
Prohibition Against Representing Others Before Federal Agencies. Provisions of the federal criminal code (18 U.S.C. §§ 203, 205) generally prohibit House employees from representing anyone before any government agency, department, court or officer in any matter in which the United States is a party or has an interest. The latter statute applies whether or not the House employee is compensated for his or her services.
These statutes would appear to prohibit a House employee from, for example, representing a campaign committee in a matter before the FEC. However, it also appears that these statutes do not prohibit a House employee from completing and signing contribution and expenditure reports to be filed with the FEC. 31 (although such work would have to be done outside of congressional space and on the employee’s own time, in accordance with the rules summarized above). Further information on these statutes is contained in Chapter 5 of the House Ethics Manual.
For “Senior Staff,” the Annual Limitation on Outside Earned Income and the Outside Employment Restrictions. House employees who are paid at or above the “senior staff” level for more than 90 days in a calendar year are subject both to an annual limitation on their outside earned income and to a set of restrictions on their outside employment.32 (House Members and officers are subject to these same provisions.) As a general matter, the limit and restrictions apply to senior staff who do campaign or political work on a compensated basis.
The “senior staff” pay level is determined on a calendar year basis, and during calendar year 2011, it is an annual rate of $119,553.60. Accordingly, any House employee who is paid at or above that rate for more than 90 days during calendar year 2011 is subject to the outside earned income limitation and the outside employment restrictions. The pay threshold for other years is available from the Ethics Committee staff.
The dollar amount of the outside earned income limitation is also determined on a calendar year basis, and for calendar year 2011, the limitation is $26,955. Thus when a House senior staff member works part-time for a campaign, he or she may not receive compensation for campaign services rendered in calendar year 2011 that exceeds $26,955. The annual limitation applicable to other years is available from the Ethics Committee staff.
However, the Committee has determined that the outside earned income limitation does not apply to the campaign salary received by a senior staff member who is on Leave Without Pay status.
Example 7. A senior staff member is paid a total of $30,000 by her employing Member’s campaign for work done during calendar year 2008. Of that amount, $15,000 was paid for campaign services provided while the staff member was on LWOP status. The staff member has not violated the outside earned income limitation, because the amount paid for work done while on LWOP status does not count toward the annual limitation.
Further information on the outside earned income limitation is found in Chapter 5 on outside employment and income.
The outside employment restrictions define certain activities for which senior staff (as well as House Members and officers) may not receive any compensation whatsoever. The restrictions prohibit senior staff from, among other things, (1) receiving compensation for practicing any profession that involves a fiduciary relationship, including, for example, law or accounting, and (2) serving for compensation as an officer or director of any entity.
Accordingly, a senior staff member, as defined above, may not receive any compensation for either providing legal services to a political organization, or for serving as an officer (such as treasurer) of such an organization. Further information on the employment restrictions applicable to Members, officers, and employees is found in Chapter 5 of the House Ethics Manual.
At times a House employee wishes to run for an elective office while continuing as an employee. There is no absolute prohibition against a staff member becoming a candidate for a state or local elective office, but such activity is subject to a number of restrictions. Most importantly, the individual’s employing Member must consent to the candidacy, and the employee must comply with the rules and requirements on performing campaign activity. Those requirements include that the employee perform congressional duties that are commensurate with the compensation he or she receives from the House – and thus that compensation be reduced proportionately with any reduction in the employee’s time in the congressional office – and that any campaign activity be performed on the individual’s own time, and outside of congressional space. Further guidance on the matter of staff candidacy for local office is provided in Chapter 5 of the House Ethics Manual. An employee considering a candidacy for elective office should contact the Committee for specific advice.
However, different considerations apply when a Member is departing office, and one of the Member’s employees wishes to become a candidate to succeed the Member. In that circumstance, the Committee has taken the position that the staff member must terminate his or her employment in the congressional office upon becoming a candidate.16 Among the considerations on which this Committee determination is based are the significant time demands of a congressional candidacy, and the strong potential for conflict of interest when an employee is seeking to succeed the employee’s employing Member.
The Committee has also determined that, subject to certain restrictions, a staff member contemplating becoming a candidate to succeed the individual’s employing Member may engage in pre-candidacy, “testing the waters” activities without terminating his or her congressional employment. The restrictions include that the individual may do so only if his or her employing Member consents, the employee complies with the rules and regulations that are generally applicable to campaign activity by employees, and the employee’s activities do not go beyond “testing the waters” as defined by the Federal Election Commission (FEC). The permissible “testing the waters” activities are described in the FEC publication, Campaign Guide for Congressional Candidates and Committees. Among the activities that are prohibited under that advice are any that indicate that the individual has in fact become a candidate, such as the use of general public political advertising, or the raising of funds beyond those reasonably necessary to determine whether one should become a candidate.
16 The restrictions on executive branch personnel were considerably eased in a 1993 enactment, the Hatch Act Reform Amendment, Pub. L. 103-94, 107 Stat. 1001 (1993).
17 Depending on the circumstances, compelling a House employee to do campaign work may also violate a provision of the federal criminal code, 18 U.S.C. § 606. That statute covers intimidation to secure not only monetary contributions for a political purpose, but anything of value, apparently including services.
19 H. Rep. 106-979, supra note 2
20 Id. at 3G, 3I, 6-7, 51-64.
21 Id. at 54.
23 Regarding the circumstances in which a House employee may accept a free ticket to a campaign fundraising event, see discussion below on “Gift Rule Provisions Applicable to Campaign Activity.”
24 2 U.S.C. § 431(8). The statute provides that among the items that do not constitute a contribution for purposes of FECA is “the value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee.” Id. § 431(8)(B)(i). Thus a House employee does not make an impermissible contribution to his or her employing Member by doing volunteer work for the Member’s campaign.
25 11 C.F.R. § 100.51 et seq.
26 Id. § 116.5(b).
27 Outlays for one’s own travel will not be deemed a contribution if either (1) the campaign provides reimbursement within 60 days after the expenses are incurred if payment was made by credit card, or within 30 days in all other cases (id. § 116.5(b)(1), (2)), or (2) the individual’s outlays for transportation do not exceed $1,000 with respect to a single election, regardless of whether the campaign reimburses the outlays (id. § 100.79(a)).
28 One set of provisions that may be applicable here is that which excludes from the definition of “contribution” an expenditure by an individual of up to $1,000 per election for food, beverages, and invitations for a campaign event held in the individual’s home or in a church or community center. See 2 U.S.C. § 431(8)(B)(ii) and 11 C.F.R. §100.75-.77. Another provision excludes from the definition of “contribution” the use of computer equipment in connection with internet activities for the purpose of influencing a federal election. 11 C.F.R. § 100.94.
29 See 11 C.F.R. § 110.6.
30 For guidance on “lump sum” payments, see Chapter 7 on staff rights and duties.
31 See U.S. Office of Government Ethics (“OGE”) Advisory Opinions 85 x 3 and 81 x 21, regarding the applicability of 18 U.S.C. §§ 203, 205 to a federal employee preparing income tax returns for others. Copies of OGE advisory opinions are available through OGE’s website.
32 House Rule 25, clauses 1, 4; 5 U.S.C. app. 4 §§ 501-505.
33 The same requirement will usually apply when an employee runs for the House in a newly created district resulting from reapportionment, and that district includes part of his or her employing Member’s district. Any employee considering running for the House in these circumstances should contact the Committee for specific advice.