VII. Committee on Standards of Official Conduct Advisory Opinion No. 6[1]

SUBJECT

General Interpretation of House Rule 23, Clause 6, and House Rule 24.

REASON FOR ISSUANCE

The Committee has received an inquiry concerning the application of House Rule 23, clause 6, and Rule 24, to the use by a Member of campaign funds to advertise or promote a town meeting in his district and in areas newly added to the district by reapportionment after notice of the meeting has been mailed under the frank.

BACKGROUND

House Rule 23, clause 6, prohibits a Member from expending funds from his campaign account that are not attributable to “bona fide campaign or political purposes.” Rule 24, clause 1, bars a Member from maintaining, or having maintained for his use, “an unofficial office account.” These provisions were included in the amendments to the House Rules made by H. Res. 287, 95th Congress, adopted pursuant to the recommendations of the Commission on Administrative Review. The Commission, in explaining the purpose of these rules, observed (Financial Ethics, H.R. Doc. No. 95-73, 95th Congress, 1st Session 23 (1977)):

The Commission strongly believes that a wall should be built between political expenses and public money, that private money should not be relied upon to pay for the conduct of the House’s official business. It regards such a wall as critically important to the integrity of the representative process . . . .

Although federal statutory law (2 U.S.C. § 439a) generally would allow a Member to use excess campaign funds to defray ordinary and necessary expenses incurred in connection with holding office, the amendment to House Rule 23, clause 6, made by H. Res. 287, 95th Congress, specifically prohibits this practice. As the Select Committee on Ethics observed in its Final Report (H.R. Report No. 95-1837, 95th Congress, 2nd Session (1979)): “The intent of this rule is to restrict the use of campaign funds to politically related activities and to thus prohibit their conversion to personal use or to supplement official allowances.” Rule 24 has a similar purpose. It was intended to eliminate the “potential for ‘influence peddling’ through private financing of the official expenses of Members of Congress.” See Financial Ethics, supra, at 18.

In adopting these rules, the House was aware that “there are gray area expenditures which could be classified (as) either political or official ” See Final Report of the Select Committee on Ethics, supra. The rules do not include any definition of “political” or “official” expenses. As Representative Frenzel observed during the debate on H. Res. 287, 95th Congress (123 Cong. Rec. 5900 (March 2, 1977):

What is political is a matter of fact rather than of definition . . .
(W)hat we have tried to do is to confine expenses from political accounts or volunteer committee accounts to expenses that are political. By and large, that definition will be left up to the Member and to his volunteer committee, and as it is broadly defined under the election law. (Emphasis added.)

The Select Committee on Ethics, in its Final Report, supra, also expressed the view that Members should make the determination as to whether gray area expenditures are to be classified as political or official.

SUMMARY OPINION

This Committee agrees that the determination as to whether a particular expense is for political or official purposes should be made by the individual Member. A gathering of a Member’s constituents at a “town meeting” could be either a political (campaign) event, or an official (representative) one. In such a case, the Member is free to use his judgment in defining it as political or official. However, this Committee is of the view that once the Member makes his determination, he is bound by it. A single event cannot, for purposes of the House rules, be treated as both political and official.

When a Member sends announcements of a town meeting under the frank, he has thereby made the decision that the event is an official one. Under Federal law, the franking privilege may only be used in the conduct of official business. 39 U.S.C.
§ 3210(a)(1). Having thus defined the event as an official one, he may not then use campaign funds (Rule 23, clause 6) or any other private funds (Rule 24) to conduct, promote, or advertise the event. (It is noted that Rule 24 was intended to prohibit the expenditure of private monies for official purposes even if no particular account or repository as such is maintained. See the colloquy between Representatives Panetta and Obey during the debate on H. Res. 287, 95th Congress, 124 Congressional Record 5941 (March 2, 1977).

Because the town meetings that are the subject of this opinion were promoted in the first instance by means of the frank, they thereby become official and representational functions and it is an improper mixture of public and campaign funding to promote such official town meetings as political events. In a case such as this, the wall between public and private funding is easily placed.

FURTHER CONSIDERATIONS

Having stated the general rule that certain events or activities may be deemed “official” or “political” but not both, and that the Member must exercise his judgment in making such determinations, there are long established practices not offensive to the principle of separation that are not affected by this Advisory Opinion.

One such practice is a campaign committee making use of materials originally generated and used solely in the course of the Member’s official and representational duties once the official use of the material is exhausted. For example, a Member may, at official expense and by means of the franking privilege, reproduce and distribute otherwise frankable reprints from the Congressional Record, radio and television programs, correspondence from public officials, etc. The Committee believes that Rule 24, which prohibits outside contributions for official purposes, does not ban a Member from later distributing such items at campaign committee expense provided all the expenses associated with reproducing and distributing the material are paid from campaign funds and the material itself or the context in which it is presented clearly establishes its campaign or political purposes and thus its non-official use, so that there would be no appearance that private funds are supplementing official allowances.

Another such practice occurs if an individual or organization without the Member’s consent, expends funds or donates services to advertise or promote some official or representational activity of the Member. For example, no violation would occur if a radio to television station in a Member’s district promoted a Member’s previously announced town meeting in public service announcements.