VIII. Certification of No Financial Interest in Fiscal Legislation

The House Rules adopted at the beginning of the 110^th Congress added a new provision in the Code of Official Conduct requiring Members to make an affirmation regarding their financial interests to the committee of jurisdiction when requesting certain types of fiscal legislative provisions. Specifically, House Rule 23, clause 17 requires any Member who “requests a congressional earmark, a limited tax benefit, or a limited tariff benefit in any bill or joint resolution (or accompanying report) or in any conference report on a bill or joint resolution (or an accompanying joint statement of managers)” to certify that neither the Member nor the Member’s spouse have a “financial interest in such congressional earmark or limited tax or tariff benefit.”

The committees with jurisdiction over earmark, tax, and tariff benefit requests are responsible for determining whether any particular spending provision triggers the certification required by the rule. A Member who requests an earmark or other provision covered by the rule must provide a written statement to the chairman and ranking member of the committee of jurisdiction of the bill, resolution, or report that contains the following information:

• The name of the Member;
• In the case of an earmark, the name and address of the intended recipient or if there is no intended recipient, the location of the activity;
• In the case of a limited tax or tariff benefit, the name of the beneficiary;
• The purpose of the earmark or limited tax or tariff benefit; and
• A certification that both the Member and the Member’s spouse have no financial interest in the earmark or limited tax or tariff benefit.

Whether a Member or a Member’s spouse has a financial interest in an earmark will most frequently depend on the specific facts and circumstances regarding both the proposed provision and the personal financial circumstances of the Member and spouse. In the great majority of cases Members should readily be able to determine whether they have a financial interest in an earmark. Members are encouraged to consult the Committee for guidance with any fact-specific questions they may have.

The Committee nevertheless provides the following general guidance. As a general matter, a financial interest would exist in an earmark when it would be reasonable to conclude that the provision would have a direct and foreseeable[108] effect on the pecuniary interests of the Member or the Member’s spouse. Such interests may relate to financial assets, liabilities, or other interests of the Member and spouse, such as investments in stocks, bonds, mutual funds, or real estate. A financial interest may also derive from a salary, indebtedness, job offer, or other similar interest.

A financial interest would not include remote, inconsequential, or speculative interests. For example, if a Member proposed an earmark or tax or tariff benefit assisting a certain company, the Member generally would not be considered to have a financial interest in the provision by owning shares in a diversified mutual fund, employee benefit plan (e.g., the Thrift Savings Plan or similar state benefit plan), or pension plan that, in turn, holds stock in the company. However, a Member’s direct ownership of stock, even a small number of shares in a widely held company, likely would constitute a financial interest under Rule 23.

A contribution to a Member’s principal campaign committee or leadership PAC generally would not constitute the type of “financial interest” referred to in the rule. Nevertheless, a political contribution tied to an official action may raise other considerations. It is impermissible to solicit or accept a campaign contribution that is linked to any action taken or asked to be taken by a Member in the Member’s official capacity – such as an earmark request that a Member has made or been asked to make. Accepting a contribution under these circumstances may implicate the federal gift statute or the criminal provisions on illegal gratuities or bribery, which are described in Chapters 2 and 4 on gifts and campaign activity, respectively.