IV. Congressional Standards

Congress has adopted standards that recognize the legitimate role of Members in assisting constituents, while protecting both the due process rights of parties potentially affected by government actions and the ability of agency officials to exercise their responsibilities. The Committee on Standards of Official Conduct has observed:

It is clear that under our constitutional form of government there is a constant tension between the legislative and executive branches regarding the desires of legislators on the one hand and the actions of agencies on the other in carrying out their respective responsibilities. The assertion that the exercise of undue influence can arise based upon a legislator’s expressions of interest jeopardizes the ability of Members effectively to represent persons and organizations having concern with the activities of executive agencies.

. . . In sum, . . . a finding [of undue influence] cannot rest on pure inference or circumstance or, for that matter, on the technique and personality of the legislator, but, instead, must be based on probative evidence that a reprisal or threat to agency officials was made.[24]

[24] House Comm. on Standards of Official Conduct, Statement in the Matter of James C. Wright, Jr., 101^st Cong., 1^st Sess. 84 (1989).

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This Committee’s longstanding guidance on communicating with executive and independent agencies of the federal government is expressed in Advisory Opinion No. 1.[25] This opinion states that it is appropriate for a Member to introduce an individual to an agency, to arrange interviews and meetings for the individual, to provide a character reference, and to urge prompt and fair consideration of a matter on the merits of the case. Inquiries as to the status of a proceeding or ruling may be directed to any agency or department. A Member may urge reconsideration of a decision on the ground that it is unsupported by federal law, regulation, or legislative intent. If a Member has strong feelings about a particular case, judgment on the merits of the case may be expressed, subject, of course, to the prohibition on ex parte communications in formal agency proceedings. A Member should not directly or indirectly threaten reprisal or promise favoritism or benefit to any administrative official. Written communications are preferred to ensure compliance with these principles.

The Committee set forth the following standards in Advisory Opinion No. 1:

REPRESENTATIONS

This Committee is of the opinion that a Member of the House of Representatives, either on his own initiative or at the request of a petitioner, may properly communicate with an Executive or Independent Agency on any matter to:

request information or a status report;

urge prompt consideration;

arrange for interviews or appointments;

express judgment;

call for reconsideration of an administrative response which he believes is not supported by established law, federal regulation or legislative intent;

perform any other service of a similar nature in this area compatible with the criteria hereinafter expressed in this Advisory Opinion.

PRINCIPLES TO BE OBSERVED

The overall public interest, naturally, is primary to any individual matter and should be so considered. There are also self-evident standards of official conduct which Members should uphold with regard to these communications. The Committee believes the following to be basic:

1. A Member’s responsibility in this area is to all his constituents equally and should be pursued with diligence irrespective of political or other considerations.

2. Direct or implied suggestion of either favoritism or reprisal in advance of, or subsequent to, action taken by the agency contacted is unwarranted abuse of the representative role.

3. A Member should make every effort to assure that representations made in his name by any staff employee conform to his instruction.

When communicating with an agency, Members and staff should only assert as fact that which they know to be true. In seeking relief, a constituent will naturally state his or her case in the most favorable terms. Moreover, the constituent may not be familiar with the intricacies of the controlling administrative regulations. Thus, a Member should exercise care before adopting a constituent’s factual assertions. A prudent approach in any communication would be to attribute factual assertions to the constituent.

In order to avoid any inference on the part of agency personnel that a Member is asking for action in a particular matter that is inappropriate under agency guidelines, the Member should consider expressly assuring administrators that no effort is being made to exert improper influence. For example, a letter could ask for “full and fair consideration consistent with applicable law, rules, and regulations.”

The staff of the Committee’s Office of Advice and Education is available to review, on an informal basis, drafts of letters to administrative agencies. Formal written advisory opinions may also be requested from the Committee regarding the propriety of particular communications.

Example 5. Company Z in Member A’s district faces bankruptcy during the pendency of an unrelated administrative appeal. A may inform the agency of Z’s financial difficulties and ask that Z’s claim be expedited if agency procedures allow it.

Example 6. Member B sits on the Veterans’ Affairs Committee. B, like any other Member, may inquire as to the status of constituents’ pending appeals to the Department of Veterans’ Affairs. Obviously, in making these inquiries, B should not suggest that the agency’s budget will be cut if B’s constituents do not receive favorable determinations.

Example 7. A constituent asks Member C for help with a pending administrative claim. If the Member cannot substantiate that the facts presented by the constituent are correct and complete, the Member should state in any communications to the agency that the information is “according to my constituent.”

Example 8. A constituent business asks Member D for help getting relief from agency regulations. Member D served on the committee that drafted the legislation under which the regulations were promulgated. Member D may tell agency officials of her view that the way in which the legislation is being implemented is inconsistent with the legislative language or intent.

Assisting Supporters

Because a Member’s obligations are to all constituents equally, considerations such as political support, party affiliation, or campaign contributions should not affect either the decision of a Member to provide assistance or the quality of help that is given. While a Member should not discriminate in favor of political supporters, neither need he or she discriminate against them. As this Committee has stated:

The fact that a constituent is a campaign donor does not mean that a Member is precluded from providing any official assistance. As long as there is no quid pro quo, a Member is free to assist all persons equally.[26]

[26] House Comm. on Standards of Official Conduct, Statement Regarding Complaints Against Representative Newt Gingrich, 101^st Cong., 2d Sess. 66 (1990).

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An individual’s status as a donor may, however, raise an appearance of impropriety. The Senate Select Committee on Ethics has expressed the issue as follows:

The cardinal principle governing Senators’ conduct in this area is that a Senator and a Senator’s office should make decisions about whether to intervene with the executive branch or independent agencies on behalf of an individual without regard to whether the individual has contributed, or promised to contribute, to the Senator’s campaigns or other causes in which he or she has a financial, political or personal interest. . . .

Because Senators occupy a position of public trust, every Senator always must endeavor to avoid the appearance that the Senator, the Senate, or the governmental process may be influenced by campaign contributions or other benefits provided by those with significant legislative or governmental interests. Nonetheless, if an individual or organization has contributed to a Senator’s campaigns or causes, but has a case which the Senator reasonably believes he or she is obliged to press because it is in the public interest or the cause of justice or equity to do so, then the Senator’s obligation is to pursue that case. In such instances, the Senator must be mindful of the appearance that may be created and take special care to try to prevent harm to the public’s trust in the Senator and the Senate. This does not mean, however, that a Member or employee is required to determine if one is a contributor before providing assistance.[27]

[27] Senate Select Comm. on Ethics, Investigation of Senator Alan Cranston, S. Rep. 102-223, 102d Cong., 1^st Sess. 11-12 (1991).

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The Senate Committee concluded that “established norms of Senate behavior do not permit linkage between . . . official actions and . . . fund raising activities.”[28] House Members, too, should be aware of the appearance of impropriety that could arise from championing the causes of contributors and take care not to show favoritism to them over other constituents.

Assisting Non-Constituents

On occasion a Member’s publicized involvement in legislation or an issue of national concern will generate correspondence from individuals outside the district. A private citizen may communicate with any Member he or she desires. However, the Member’s ability to provide assistance to such individuals is limited.

The statute that establishes the Members’ Representational Allowance provides that the purpose of the allowance is “to support the conduct of the official and representational duties of a Member of the House of Representatives with respect to the district from which the Member is elected.”[29] This statute does not prohibit a Member from ever responding to a non-constituent. In some instances, working for non-constituents on matters that are similar to those facing constituents may enable the Member better to serve his or her district. Other times, the Member may serve on a House committee that has the expertise and ability to provide the requested help. Of course, if a Member has personal knowledge regarding a matter or an individual, he or she may always communicate that knowledge to agency officials. As a general matter, however, a Member should not devote official resources to casework for individuals who live outside the district. When a Member is unable to assist such a person, the Member may refer the person to his or her own Representative or Senator.

Government Procurement and Grants

Constituents frequently request congressional assistance with government contracts or grants. These matters are subject to the same guidelines as other casework. Thus, Members may generally forward introductory information to an agency from a constituent firm or request information for a constituent on available opportunities. On the other hand, an attempt to influence the outcome of a quasi- judicial proceeding such as a formal contract dispute or a bid protest pending before a board of contract appeals could trigger complaints from third parties that the fairness and impartiality of the tribunal has been compromised.[30] Moreover, experience has shown that contacts like these may be resented by the decision-makers. Consequently, such efforts may do more harm than good to the constituent’s cause.

In assisting a private enterprise, a Member should be mindful that congressional allowances, including those for staff, are available only for conducting official business.[31] Assistance should not extend so far that the congressional office is actually doing the work of the private business, rather than of the Congress. Again, Members and employees should take care not to discriminate unfairly among constituents, e.g., on political grounds.

Example 9. Member A may contact agency officials and request that they meet with a constituent seeking a grant. Employee B on Member A’s congressional staff may accompany the constituent, but B should make clear that he is not there as the constituent’s agent. Care should also be taken to avoid any inference of a threat to agency officials.

Example 10. Constituent Z requests Member B’s assistance with a grant. Z is unfamiliar with the governing regulations and asks B if her staff, being experienced in such matters, would prepare the application on Z’s behalf. It would not be appropriate for congressional staff to be doing the work of a private party in this fashion.

Example 11. Member C is approached by a constituent business for help in getting a government agency to purchase its product. The Member may provide assistance, but C should either (a) be personally familiar with the company, product, and government requirements, or
(b) be willing to provide the same type of assistance to other, similarly situated constituent businesses.

Communicating With Courts

Just as they are asked to intervene with agency officials responsible for making on-the-record decisions, Members may also be asked to communicate with judges in pending court cases. Most courts are subject to limits on ex parte communications which are at least as restrictive as those applicable to executive agencies. Judges, whether serving at the federal, state, or municipal level, are charged with performing their duties in an impartial manner. They are guided in their actions by standards such as the following:

A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding[32]

[32] ABA Model Code of Judicial Conduct Canon 3B(7) (2000).

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When a Member believes it necessary to attempt to affect the outcome in a pending case, the Member has a variety of options. A Member who has relevant information could provide it to a party’s counsel, who could then file it with the court and notify all parties. Alternatively, the Member could seek to file an amicus curiae, or friend of the court, brief. Yet another option, in an appropriate case, might be to seek to intervene as a formal party to the proceeding. A Member could also make a speech on the House floor or place a statement in the Congressional Record as to the legislative intent behind the law. A Member should refrain, however, from making an off-the-record communication to the presiding judge, as it could cause the judge to recuse from further consideration of the case.

When a Member does have personal knowledge about a matter or a party to a proceeding, the Member may convey that information to the court through regular channels in the proceeding (e.g., by submitting answers to interrogatories, being deposed, or testifying in court). Members and employees should also be aware that special procedures are to be followed whenever they receive a subpoena seeking information relating to official congressional business.[33] The House Office of General Counsel should be consulted for further guidance.

Contacting Other Governments

Besides intervening with federal agencies and personnel, Members may also be asked to assist constituents in their dealings with state, local, and foreign governments. Members may do so. Their communications should adhere to the same general principles described above that guide their contacts with federal agencies.[34]

Example 12. Constituent Z has a claim pending before the state Workers’ Compensation Board. If Member A would do the same for any similarly situated constituent, A may write to the state board inquiring as to the status of Z’s claim and asking for expedited review if such would be consistent with the board’s governing law and regulations. A may not imply that the state will receive increased federal aid in return for a disposition favorable to Z.

Example 13. General Widget, Inc., an old and respected manufacturer in Member B’s district, would like to take advantage of the opening of potential Eastern European markets for its products. GW asks B for a letter of introduction to a certain foreign Minister of Finance. B writes:

Dear Minister:

General Widget, Inc. has been doing business in my congressional district for 70 years. Now it seeks the opportunity to do business in your country as well. GW’s executives would be happy to describe to you its wide range of products. I would appreciate any consideration you could show to GW and its representatives.

Sincerely,
B
Member of Congress

B’s letter is appropriate. If B writes this letter on GW’s behalf, B should be willing to write such a letter for any similarly situated constituent company.

Intervening With Nongovernmental Parties

Members are often asked to assist constituents in their dealings with government agencies. In some circumstances, however, the Member may be asked to assist one private party in dealings with another private individual or organization. For example, a constituent company seeking subcontracts may ask a Member for a letter of introduction to another company which has been awarded federal funds. As another example, two businesses may ask a Member to act as a mediator in a private dispute.

Although a Member may take actions that the Member believes will assist the congressional district, intervening in private matters requires the exercise of particular caution. Unlike agency personnel, many private businesses are not used to dealing with Members of Congress on a regular basis. Thus, a communication from

a Member’s office may be viewed as an official endorsement of a private enterprise, or as pressure to take action in order to please the Member, rather than based on the merits. In this context, again, Members and employees should bear in mind that official resources should not be devoted to doing the work of private businesses.[35]

Confidentiality of Records

The “Privacy Act” protects the records maintained by government agencies from disclosure, except for specified purposes or with the permission of the person to whom the record pertains.[36] Although the statute does permit disclosure “to either House of Congress,”[37] some agencies require Members to show written consent from their constituents before they will release the constituents’ records to the Members. The Privacy Act does not apply to congressional documents. Historically, however, communications between Members and constituents have been considered confidential and should generally not be made public without the constituent’s consent.

Personal Financial Interests

Just as Representatives may vote on legislation that affects them as members of a class rather than as individuals, Members and employees may generally contact federal agencies on issues in which they, along with their constituents, have interests.[38] A constituent need not be denied congressional intercession merely because a Member or the staff assistant assigned to a particular issue may stand to derive some incidental benefit along with others in the same class. Thus, Members who happen to be farmers may nonetheless represent their constituents in communicating views on farm policy to the Department of Agriculture. Only when Members’ actions would serve their own narrow, financial interests as distinct from those of their constituents should the Members refrain. See Chapter 5 on “Member Voting and Other Official Activities on Matters of Personal Interest.”

As always, Members and employees must guide their actions in this regard by the Code of Official Conduct, House Rule 23. The Code prohibits Members and staff from allowing compensation to accrue to their benefit “by virtue of influence improperly exerted” from a position in Congress.[39] Moreover, an employee who files a Financial Disclosure Statement may not contact a court or executive branch agency with respect to non-legislative matters affecting any entity in which the individual has a significant financial interest, unless the employing Member grants a written waiver and files it with the Committee on Standards of Official Conduct.[40]