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Below is a condensed version of this topic; for complete guidance please refer to the House Ethics Manual, Chapter 5 on outside employment and income.
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 110th 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.
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,
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)).
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.
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 106th 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
109 Honest Leadership and Open Government Act of 2007, supra note 45.
110 “[O]ther legislative offices” include employees of the Architect of the Capitol, United States Botanic Garden, Government Accountability Office, Government Printing Office, Library of Congress, Office of Technology Assessment, Congressional Budget Office, and Capitol Police. It also includes any other House legislative branch office not covered by the other provisions, such as the Clerk, Parliamentarian, Office of Legal Counsel, and Chief Administrative Officer. See 18 U.S.C. § 207(e)(9)(G).
111 18 U.S.C. § 207(e)(6), (e)(7)(B).
112 Regarding the post-employment implications of paying such an increase in the form of “lump sum” payments, rather than through a temporary adjustment in the employee’s regular salary, see Chapter 7 on Staff Rights and Duties. Briefly stated, the Committee determined that lump sum payments, when properly used by an employing office, do not constitute part of the recipient’s “rate of basic pay.” Key factors in making this determination are that lump sum payments are not treated as salary for purposes of employment benefits, do not count in determining the maximum amount an employee can contribute to the Thrift Savings Plan, or the amount of life insurance that the employee may purchase, and likewise they do not count in determining an employee’s “high three” years for purposes of calculating retirement benefits.
113 The “leadership” of the House consists of the Speaker; majority leader; minority leader; majority whip; minority whip; chief deputy majority whip; chief deputy minority whip; chairman of the Democratic Steering Committee; chairman and vice chairman of the Democratic Caucus; chairman, vice chairman, and secretary of the Republican Conference; chairman of the Republican Research Committee; chairman of the Republican Policy Committee; and any similar position created after the statute took effect. 18 U.S.C. § 207(e)(9)(L).
114 For these employees, post-employment restrictions do not apply unless their rate of basic pay equaled or exceeded that in effect for level IV of the Executive Schedule ($149,000 in 2008). 18 U.S.C. § 207(e)(7)(B).
115 Former officials who are lawyers should consult their local bar association concerning the application of rules governing their involvement in matters in which they participated personally and substantially in their official capacity.
116 House Comm. on Standards of Official Conduct, Summary of Activities, One Hundred Sixth Congress, H. Rep. 106-144, 106th Cong., 2d Sess., at 10 (2001).
117 It should be noted that one court held that it is a complete defense to a prosecution for conduct assertedly in violation of a related federal criminal strict-liability statute (18 U.S.C. § 208) that the conduct was undertaken in good faith reliance upon erroneous legal advice received from the official’s supervising ethics office. United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990).