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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.
Official resources of the House must, as a general rule, be used for the performance of official business of the House, and hence those resources may not be used for campaign or political purposes. The laws and rules referenced in this section reflect “the basic principle that government funds should not be spent to help incumbents gain reelection.”3
What are the “official resources” to which this basic rule applies? Certainly the funds appropriated for Member, committee, and other House offices are official resources, as are the goods and services purchased with those funds. Accordingly, among the resources that generally may not be used for campaign or political purposes are congressional office equipment (including the computers, telephones, and fax machines), office supplies (including official stationery and envelopes), and congressional staff time.
Among the specific activities that clearly may not be undertaken in a congressional office or using House resources (including official staff time) are the solicitation of contributions; the drafting of campaign speeches, statements, press releases or literature; the completion of FEC reports; the creation or issuance of a campaign mailing; and the holding of a meeting on campaign business. The same prohibition applies to any activity that is funded to any extent with campaign funds, even if the activity is not overtly political in nature.
The misuse of the funds and other resources that the House of Representatives entrusts to Members for the conduct of official House business is a very serious matter. Depending on the circumstances, such conduct may result in not only disciplinary action by the House, but also criminal prosecution. Moreover, while any House employee who makes improper use of House resources is subject to disciplinary action by the Committee on Ethics, each Member should be aware that he or she may be held responsible for any improper use of resources that occurs in the Member’s office. The Committee has long taken the position that each Member is responsible for assuring that the Member’s employees are aware of and adhere to the rules, and for assuring that House resources are used for proper purposes.4
Specific laws and rules that prohibit the use of official resources for campaign or political purposes are summarized in the remainder of this section. The effect of these laws and rules is generally to preclude campaign or political activity from taking place in congressional offices. However, the Committee has long recognized that there are certain limited activities in a congressional office that, while related to a Member’s campaign, are permissible. Those activities are described in this section.
Members and staff should be aware that the general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking. Thus the prohibition applies to, for example, campaigns for the presidency, the U.S. Senate, or a state or local office, and it applies to such campaigns whether the Member is a candidate or is merely seeking to support or assist (or oppose) a candidate in such a campaign.
Example 1. A Member wishes to issue a press release announcing that he is endorsing a candidate for president. The Member may not issue the release out of his House office or use any House resources (including his official press release letterhead) in making the announcement. Likewise, a Member may not refer to or discuss his endorsement in letters sent on official stationery, including letters sent in response to constituent inquiries.
Many of the applicable rules here are statutorily based rules that were issued by either the Committee on House Administration or the House Franking Commission (formally known as the House Commission on Congressional Mailing Standards). Definitive explanation of those rules is available from the Committee on House Administration, the Franking Commission, and their staffs.
Goods and Services Paid for With the Members’ Representational Allowance or House Committee Funds. All expenditures by a Member from his or her Members’ Representational Allowance (“MRA”) – including expenditures for staff, travel, and communications – must comply with regulations issued by the Committee on House Administration. Those regulations are set forth in the Members’ Handbook issued by that Committee. The Handbook provides that “[o]nly expenses the primary purpose of which [is] official and representational” are reimbursable from the MRA, and that the MRA may not pay for campaign expenses or political expenses (or any personal expenses).
Similarly, all House committees, in spending their official funds, must comply with the regulations set forth in the Committees’ Handbook issued by the Committee on House Administration.5 The Committees’ Handbook provides that only expenses “the primary purpose of which [is] official” are reimbursable from the official funds provided to a committee, and that committee funds may not be used to pay any “political or campaign-related expenses” (or any personal expenses). The regulations governing committee expenditures as well as those governing Member expenditures derive in large part from both 31 U.S.C. § 1301(a), which provides that official funds are to be used only for the purposes for which appropriated, and the statutory authorizations for the allowances.6
It is permissible for House employees to do campaign work, but only outside of congressional space, without the use of any House resources, and on their own time (as opposed to “official” time for which they are compensated by the House). Accordingly, any House employee who does campaign work must ensure that the work – including any telephone conversations or other communications concerning campaign business – is performed strictly in compliance with these limitations.
A provision of the Members’ Handbook permits the incidental personal use of House equipment and supplies “when such use is negligible in nature, frequency, time consumed, and expense.” However, this policy applies only to incidental personal use of those resources, and not to their use for campaign or political purposes. Members must regularly certify that all official funds have been properly spent. A false certification may bring criminal penalties, and the government may recover any amount improperly paid.8
HouseBuildings, and House Rooms and Offices. The House buildings, and House rooms and offices – including district offices – are supported with official funds and hence are considered official resources. Accordingly, as a general rule, they may not be used for the conduct of campaign or political activities.
Thus, for example, a Member may not film a campaign commercial or have campaign photos taken in a congressional office. For rules on filming and taking of photos on grounds near the Capitol, the office of the Sergeant at Arms should be contacted.
In addition, House rooms and offices are not to be used for events that are campaign or political in nature, such as a meeting on campaign strategy, or a reception for campaign contributors.11 However, under long-standing Committee policy, when a Member is sworn in, the Member may hold a “swearing-in” reception in a House office building that is paid for with campaign funds.12 A criminal statute that prohibits the solicitation of campaign contributions in any House building, room, or office is discussed below in this chapter, in the section on solicitation of contributions.
Coverage of House Floor and Committee Proceedings. Broadcast coverage and recordings of House floor proceedings may not be used for any political purpose under House Rule 5, clause 2(c)(1). In addition, under House Rule 11, clause 4(b), radio and television tapes and film of any coverage of House committee proceedings may not be used, or made available for use, as partisan political campaign material to promote or oppose the candidacy of any person for public office.
Internal Office Files. As discussed below, a congressional office may provide campaign personnel with copies of its press releases and other materials that were distributed publicly. However, the internal office files, such as research files on legislation, may not be used for campaign or political purposes.
Example 2. A Member’s campaign wishes to make commercials featuring testimonials by individuals whom the office has assisted on casework matters. The office casework files may not be reviewed to obtain names of individuals whom the office has assisted. Likewise, the office files may not be reviewed to obtain names of individuals to solicit for campaign contributions.
Official Mailing Lists. The Members’ Handbook issued by the Committee on House Administration provides that official funds may be used to purchase and produce mailing lists, provided that, among other things, “the list does not contain any campaign, campaign related, or political party information.” The Handbook further provides that a Member may not use official funds to purchase mailing lists from the Member’s campaign “unless the lists are available on the same terms to other entities through an arms length marketplace transaction.” (Note that subject to the same conditions, a Member also has the option of purchasing a mailing list from his or her campaign with personal funds and then making that list available for use by the congressional office.)
The Members’ Handbook also provides that, “[o]fficial mailing lists may not be shared with a Member’s campaign committee, any other campaign entity, or otherwise be used for campaign purposes.”
Letters, News Releases, Other Printed Materials, and E-mails. Under regulations issued by the Committee on House Administration, neither a letter nor any other kind of document (including a news release) may be printed on official House stationery unless the content of the document complies with the Franking Regulations. House Administration Committee regulations further provide that any advertisement paid for by a congressional office, as well as any printed materials produced by an office, must be frankable in content. Emails sent by a congressional office must likewise comply with the Franking Regulations.
The Franking Regulations are issued by the House Franking Commission, and they govern use of the frank under 39 U.S.C. § 3210 and related statutes.13 Statutory law provides that it is Congress’ intent that the frank not be used for, among other things, mail matter which specifically solicits political support for the sender or any other person or any political party, or a vote or financial assistance for any candidate for any political office. [39 U.S.C. § 3210(a)(5)(C).]
The Franking Regulations elaborate on this provision by prohibiting, among other things, “specific references to past or future campaigns or elections, including election or re-election announcements and schedules of campaign related events,” the use of materials “used in campaign literature as well as specific campaign pledges or promises,” and “excessive use of party labels.” The Franking Regulations further provide that when a Member submits a sample of a mass mailing to the Franking Commission for an advisory opinion on frankability, the office must also submit a signed Franking Certification Form that represents that the mailing does not and will not – contain any logo, masthead design, slogan, or photograph which is a facsimile of any matter contained in the Member’s campaign literature. Any questions on the Franking Regulations should be directed to the staff of the Franking Commission.
While the Franking Regulations prohibit congressional offices from sending letters or issuing press releases that are campaign or political in nature, the Committee on Ethics understands that the Regulations do not necessarily preclude congressional offices from issuing statements on legislative issues that are raised in the course of a campaign. Provided that such statements are confined to discussion of legislative issues, they may satisfy the Franking Regulations, and hence may be drafted by congressional staff using the internal office files and other official resources. However, before commencing work on any such statement, a congressional office should consult with Franking Commission staff to ensure that the planned statement will comply with the Regulations.
The 90-Day Ban on Unsolicited Mass Communications. Under statutory law and Committee on House Administration regulations, a Member is prohibited from spending official funds to make any unsolicited mass communication within 90 days of any election in which the Member’s name is on the ballot.14 The regulations define “unsolicited mass communication” as “any unsolicited communication of substantially identical content to 500 or more persons in a session of Congress.”
The official expenditures that are subject to the prohibition include those for mass mailings, advertisements, certain electronic messages and mailings, and the production and distribution of video and audio services. On the other hand, a Member’s direct response to an individual communication, such as an incoming letter initiated by a constituent, is not an unsolicited communication in that the constituent is soliciting the Member’s response. Such a response is therefore not subject to the prohibition, even if the total number of individual responses is 500 or more.
In addition, according to the Members’ Handbook, House offices may consider an individual who subscribed to a Member’s electronic communication or newsletter to be a “soliciting” a response by the office. As a result, a communication to that individual would not be subject to the 90-day communications ban that applies to unsolicited communications. Although there is no requirement that a Member seek an advisory opinion from the Franking Commission before transmitting an electronic communication or newsletter, the content of the communication is subject to Franking regulations. Questions relating to electronic messages and mailings communications should be directed to the Committee on House Administration and Franking, as appropriate.
Note that the ban applies to communications paid for with official funds. Thus the ban does not prohibit a Member who is within the 90-day “cut-off” from, for example, accepting the invitation of a charitable organization to tape a bona fide public service announcement using facilities provided by the organization. In addition, at times a Member is asked to appear at and lend his or her name to an event of an outside organization (see Chapter 10 on official and outside organizations). Materials that the organization typically prints or publishes regarding such an event would not be subject to the ban.
Questions on the applicability of the ban to communications proposed to be made using official funds should be directed to the Committee on House Administration. However, occasionally questions have arisen on whether a Member who is in his or her cut-off period can make a mass communication that is official in nature using nonofficial resources (for example, the services of a state or local government entity). Questions of that nature are within the jurisdiction of the Committee on Ethics, and the Committee has taken the position that such an undertaking would not be permissible in that it would be inconsistent with the spirit of the ban on unsolicited mass communications.
Further information on the rules governing Member and Committee websites is available from the Committee on House Administration.
As to Member campaign websites, the Committee on Ethics has advised that –
This matter is also addressed at the end of this chapter.
Travel. Member and staff travel, including to one’s district, may be paid with official funds only if the primary purpose of the trip is the conduct of official business. As a general matter, a Member or staff person, while on official travel, may engage in incidental campaign or political activity, provided that no additional travel expenses are incurred as a result. However, when the primary purpose of a trip is in fact the conduct of campaign or political activity, then the travel expenses must be paid with campaign funds and cannot be paid with official funds.15
The Members’ Handbook and the Committees’ Handbook issued by the Committee on House Administration include provisions on campaign activity in the course of travel paid for with House funds. Thus when a Member or staff person wishes to engage in any such activity in the course of an official trip, he or she should first review the section of the appropriate Handbook on travel and consult with the Committee on House Administration staff as necessary.
Redistricting. Prior to May 2001, both the Committee on Ethics and the Committee on House Administration had taken the position that the use of House resources for redistricting purposes was absolutely prohibited. That policy was based on the view that redistricting is an inherently political activity. However, in a joint Dear Colleague letter of May 24, 2001, the two committees advised that House resources may be used for redistricting-related activities – such as responding to constituent inquiries, and Member meetings and briefings – that are merely incidental to each day’s official business, and that are minimal in nature, frequency, time consumed, and use of resources. A copy of that joint Dear Colleague letter is reprinted in the appendices to the House Ethics Manual.
The purpose and effect of the laws and rules are generally to preclude campaign or political activity from taking place in a congressional office. However, the Committee has recognized that there are certain limited activities that, while related to a Member’s campaign, may properly take place in a congressional office. The Committee’s view has been that it would be impractical and unnecessary to attempt to prohibit these specific activities. In this regard, the Committee has long advised that the following activities are permissible:
Coordination of the Member’s Schedule. The individual in the congressional office who handles the Member’s schedule may coordinate with those in the campaign office who schedule the Member’s campaign appearances. Obviously, a Member can be in only one place at any one time, and thus it is necessary for schedulers to communicate. The congressional office scheduler may also maintain an integrated schedule that reflects the Member’s political as well as official activities, but that schedule is for the internal use of the Member and staff only.
While coordination between schedulers is permissible, as a general matter, the congressional office scheduler should not make travel arrangements for the Member’s campaign trips either in the congressional office or while on official time. However, a member of the congressional staff who wishes to perform those duties may do so on his or her own time and outside of congressional space, such as at the office of one of the congressional campaign committees. The matter of campaign work by House employees on their own time and outside of congressional office space is discussed in detail below.
The Press Secretary. The press secretary in the congressional office may answer occasional questions on political matters, and may also respond to such questions that are merely incidental to an interview focused on the Member’s official activities. However, while in the congressional office, the press secretary should not give an interview that is substantially devoted to the campaign, or initiate any call that is campaign-related. A press secretary wishing to do either of those things should do so outside of the congressional office, and on his or her own time (see below).
Example 3. In the course of a lengthy interview in the congressional office on how the Member plans to vote on a controversial issue coming before the House, a reporter asks the press secretary how the Member perceives that her vote will affect her upcoming re-election. The press secretary may answer the question. However, if the reporter continues to ask questions on the campaign, the press secretary should terminate the interview. If the press secretary wishes to do so, she may resume the interview outside of congressional space (such as at the office of one of the congressional campaign committees) and on her own time.
Campaign/Congressional Office Referrals. The congressional office may refer to the campaign office letters and other communications and inquiries that it receives concerning the campaign. Likewise, the campaign office may refer to the congressional office any officially related matters that it receives.
Example 4. A congressional office receives a call from a constituent who wishes to do volunteer work for the Member’s campaign. The staff person may provide the constituent with the address and telephone number of the campaign headquarters.
All such referrals should be done at the expense of the campaign, including the cost of any long-distance telephone calls. It may be desirable for the congressional office to have a supply of campaign envelopes and stamps for use in referring written materials. Those stamps and envelopes can also be used to send to the campaign any unsolicited campaign contributions that are received in the congressional office (see discussion below on “No Solicitation in House Offices, Rooms, or Buildings”).
Providing Published Materials to the Campaign. A congressional office may provide a campaign office with a copy of any materials that the congressional office has issued publicly, such as press releases, speeches, and newsletters. In stating that such activity is permissible, the Standards Committee assumes that only a minimal amount of congressional staff time will be consumed in responding to campaign requests for materials of this nature. However, in no event should the congressional office provide the campaign with a quantity of any such item for distribution by the campaign.
Example 5. In the past year the Member has been very active on the gun issue. The campaign wishes to issue a brochure on the issue, and a campaign worker asks the congressional office for a copy of all the statements and releases the Member issued on guns. The congressional office may provide one copy of the requested material to the campaign.
Other materials in the congressional office files – including, for example, back-up memoranda on issues – are not to be shared with the campaign or otherwise used for campaign purposes. Those materials are to be used for official purposes only. Congressional staff members should not do research on behalf of the campaign or write campaign speeches or other materials while on official time or using official resources.
A separate question that arises at times is whether a Member’s campaign, having received a copy of an item that the congressional office issued publicly – such as a press release or Congressional Record statement – may then reproduce and distribute that item at campaign expense. The Committee addressed this matter in its Advisory Opinion No. 6, which was issued on September 14, 1982, and is reprinted in updated form in the appendices. A Member’s campaign is free to reproduce and distribute, for campaign purposes, materials that were originally prepared by the congressional office, provided that the following requirements are satisfied:
In reproducing such materials, the campaign must remove all official indicia, such as the official letterhead from a press release that the congressional office had issued, and any references to the address or telephone number of the congressional office. The name of any congressional staff contact that appeared in the material as issued originally must also be deleted. Subject to the same requirements, such materials may also be posted on the Member’s campaign website.
A question may arise as to when the official use of an item has been “exhausted” as that term is used here. As a general matter, the official use of the normal press release is exhausted once it has been disseminated and the media have had an opportunity to utilize its contents. Thus usually a campaign will be able to reproduce the contents of congressional office press releases a few days after their original issuance, provided that the other requirements set forth above are satisfied. On the other hand, when a congressional office posts a statement setting out the Member’s views on the major issues on its official website, the Member’s campaign is not free to reproduce that statement so long as it remains on the official website. So long as a statement of that nature remains posted on the official site, its official use is not exhausted.
Responding to Questionnaires on Legislative Issues. Congressional offices frequently receive questionnaires from outside organizations, and often those organizations use the responses to the questionnaires in deciding whether to endorse the Member for re-election. When a questionnaire is limited to legislative issues and the content of the response would comply with the Franking Regulations, the response may be prepared by congressional staff on official time. Otherwise, the response should be prepared by campaign staff.
Nonpartisan Voter Registration Materials. A Member may make nonpartisan voter registration information available in a congressional office, but may not actually register people to vote there. In addition, the franking statute (39 U.S.C. § 3210(a)(3)(H)) provides that nonpartisan voting registration or election information is frankable.
Except for a few common sense exceptions, the Committee on Ethics expects Members to enforce the general rule that any campaign-related activities done by staff members will be done on their own time, outside of congressional space, and without the use of any official House resources.
3 Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982), aff’d, 461 U.S. 911 (1983).
4 House Comm. on Standards of Official Conduct, In the Matter of Rep. E.G. “Bud” Shuster, H. Rep. 106-979, 106th Cong., 2d Sess. 31 (2000); House Comm. on Standards of Official Conduct, Statement Regarding Complaints Against Rep. Newt Gingrich, 101st Cong., 2d Sess. 60, 165-66 (1990); House Comm. on Standards of Official Conduct, In the Matter of Rep. Austin J. Murphy, H. Rep. 100-485, 100th Cong., 1st Sess. 4 (1987).
5 See Comm. on House Admin., U.S. House of Representatives, Members’ Congressional Handbook (hereinafter “Members’ Handbook”) and Committees’ Congressional Handbook (hereinafter “Committee’s Handbook”). Both publications are available on the Committee on House Administration website.
6 See, e.g., 2 U.S.C. § 57b, and Principles of Federal Appropriations Law (3d ed.), issued by the U.S. General Accountability Office.
7 Federal law (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. §§ 3729-3731, permits assessment of a penalty of up to three times the amount wrongly claimed. For further information on this matter, see Chapter 9 (on false claims and fraud).
8 The regulations themselves are set out in a publication of the Franking Commission, Regulations on the Use of the Congressional Frank by Members of the House of Representatives, the current issue of which is dated June 1998. The regulations are also available on the Committee on House Administration’s website.
11 The Speaker’s office has issued a set of rules for use of the meeting rooms under the Speaker’s jurisdiction, and those rules prohibit use of those rooms for, among other things, political purposes. In addition, as noted in the text, a provision of the criminal code, 18 U.S.C. § 607 generally prohibits the solicitation or receipt of campaign contributions in federal offices, including the House office buildings and district offices, in connection with a federal, state, or local election.
12 In addition, there are events that, while not campaign or political events, may properly be paid for with campaign funds (e.g., a reception for visiting constituents). An event of this nature may be held in a House building, even though it is paid for with campaign funds. This and other matters are discussed later in this chapter.
13 The regulations themselves are set out in a publication of the Franking Commission, Regulations on the Use of the Congressional Frank by Members of the House of Representatives, the current issue of which is dated June 1998. The regulations are also available on the Committee on House Administration’s website.
14 Statutory law (39 U.S.C. § 3210(a)(6)) applies the ban to mass mailings, and the regulations extend the ban to other forms of communication.
15 In the 104th Congress an investigative subcommittee of the Standards Committee adopted a Statement of Alleged Violation against a Member, one count of which alleged a misuse of official resources on the basis that official funds had been used to pay travel expenses of a staff member for a trip the primary purpose of which was to attend a campaign fundraising event for the Member. No further action was taken in the case, however, because as of the time the investigative subcommittee completed its work, the Member was about to depart the House. See H. Rep. 104-876, supra note 7.