IX. Post-Employment Restrictions

Applicability of the Restrictions

The Ethics Reform Act of 1989 enacted, for the first time, post-employment restrictions on Members, the elected officers, and certain employees of the House and Senate, and certain officers and employees of other legislative branch offices. These restrictions are set out in a criminal statute, 18 U.S.C. § 207, and they took effect in 1991. The restrictions were amended slightly by Honest Leadership and Open Government Act of 2007, [109] which was enacted during the 110^th Congress.

House staff who are employed in a Member, committee, or leadership office are covered by the restrictions if they were paid, for a period of 60 days or more in the one-year period preceding termination of their House employment, at a rate equal to or greater than 75% of Members’ pay (18 U.S.C. § 207(e)(7)(A)). In 2008 the basic rate of Members’ pay is $169,300, and thus the post-employment threshold for employees who leave their House employment in 2008 is $126,975. The threshold for other years is available from the Standards Committee. For employees of other legislative offices, [110] the basic rate of pay triggering the restrictions is level IV of the Executive Schedule, which for 2008 is $149,000. [111] Because an employee becomes subject to the restrictions where the employee’s pay is at the threshold rate for a period as brief as two months, a House employee may become subject to the restrictions as a result of temporary changes in the base rate of pay, such as those made to pay a bonus.[112]

The post-employment restrictions of 18 U.S.C. § 207 are the only such restrictions applicable to former House employees. House employees whose pay was below the threshold are not subject to the post-employment restrictions set out in the statute, and no other provision of federal statutory law or the House Rules establishes any comparable restrictions on post-employment activities.

Section 103(a) of the Honest Leadership and Open Government Act requires the Clerk of the House to provide all departing Members and covered employees (i.e., those employees who are subject to the post-employment restrictions) with a letter notifying the individual “of the beginning and ending date of the prohibitions that apply.” Section 103(b) of the Act mandates that the same information be available on a public internet site.

Set out below is a brief summary of the provisions of 18 U.S.C. § 207 as applicable to House Members, officers, and employees. The Standards Committee has also prepared a pair of advisory memoranda – one for House Members and officers and one for House employees – that detail the applicability and scope of the restrictions of 18 U.S.C. § 207. Copies of those memoranda are available from the Standards Committee or its website. Anyone wishing a detailed explanation of the statute should refer to those advisory memoranda.

Scope of the Restrictions

Section 207 imposes a one-year “cooling-off period” on the former Members, officers and covered employees. As a general matter, for one year after leaving office, those individuals may not seek official action on behalf of anyone else by either communicating with or appearing before specified current officials with the intent to influence them. Thus,

• A former Member may not seek official action from any current Member, officer, or employee of either the Senate or the House, or from any current employee of any other legislative office (§ 207(e)(1)(B)).
• A former elected officer of the House may not seek official action from any current Member, officer, or employee of the House (§ 207(e)(1)(B)).
• A covered former employee on the personal staff of a Member may not seek official action from that Member or from any of the Member’s current employees (§ 207(e)(3)).
• A covered former employee of a committee may not seek official action from any current Member or employee of the employing committee or from any Member who was on the committee during the last year that the former employee worked there (§ 207(e)(4)).
• A covered former employee on the leadership staff (i.e., an employee of any leadership office) may not seek official action from any current Member of the leadership of the House [113] or any current leadership staff employees (§ 207(e) (5)).
• A covered former officer or employee of any other legislative office may not seek official action from a current officer or employee of that legislative office (§ 207(e)(6)).[114]

For the purposes of the statute, a detailee is deemed to be an employee of both the entity from which he or she comes and the entity to which the individual is detailed (§ 207(g)).

These restrictions bar certain types of contacts with certain categories of officials, basically former colleagues and those most likely to be influenced on the basis of the former position. The law focuses on communications and appearances. By contrast, if a former official plays a background role, does not appear in person or convey his or her name on any communications, the law does not appear to prohibit that person from advising those who seek official action from the Congress. Such a background role does not pose the risk of improper influence since the current officials are not even aware of the former official’s participation.[115] The law does, however, absolutely preclude one set of activities regardless of whether the former official acts openly or behind the scenes. None of the officials subject to the limitations described above may represent, aid, or advise a foreign government or foreign political party before any federal official (including any Member of Congress) with the intent to influence a decision of such official in carrying out his or her official duties (§ 207(f)).

Exceptions

Under 18 U.S.C. § 207(j), these restrictions do not apply to official actions taken by employees or officials of the following: the United States government; the District of Columbia; state and local governments; accredited, degree-granting institutions of higher education; and hospitals or medical research organizations. They further do not preclude activities on behalf of international organizations in which the United States participates where the Secretary of State certifies in advance that such activities serve the interests of the United States. In addition, section 207 does not prevent individuals from making uncompensated statements based on their own special knowledge, from furnishing scientific or technological information in areas where they possess technical expertise, or from testifying under oath.  Under 18 U.S.C. § 207(e)(8), individuals are also permitted to contact the Office of the Clerk regarding compliance with lobbying disclosure requirements under the Lobbying Disclosure Act.

Penalties

Violation of § 207 is a felony, carrying penalties of imprisonment, fines, or both. Section 216 of Title 18 authorizes imprisonment for up to one year (or up to five years for willfully engaging in the proscribed conduct). Additionally, an individual may be fined up to $50,000 for each violation or the amount received or offered for the prohibited conduct, whichever is greater. The statute further authorizes the Attorney General to seek an injunction prohibiting a person from engaging in conduct that violates the act.

The provisions of 18 U.S.C. § 207 summarized above govern the conduct of former Members, officers, and employees only, and do not apply to the conduct of current Members, officers, or employees. However, current Members and staff who receive improper contacts should be aware that, depending on the circumstances, they may be subject to House disciplinary action. In a Standards Committee disciplinary case that was completed in the 106^th Congress, a Member admitted to engaging in several forms of conduct that violated the requirement of the House Code of Official Conduct that each Member and staff person “conduct himself at all times in a manner that shall reflect creditably on the House.” (House Rule 23, cl. 1). One of those violations was his engaging in a pattern and practice of knowingly allowing his former chief of staff to appear before and communicate with him in his official capacity during the one-year period following the termination of her House employment “in a manner that created the appearance that his official decisions might have been improperly affected.”[116]

A Member or employee who has any concerns about the applicability of the post-employment restrictions to his or her proposed conduct should contact the Standards Committee for specific guidance.  While Committee interpretations of 18 U.S.C. § 207 are not binding on the Justice Department, those interpretations are based on the Committee’s analysis of the terms and purposes of the statute, as well as any applicable opinions or guidance of the Justice Department or the U.S. Office of Government Ethics of which the Committee is aware.[117]