IV. Illegal Hiring and Firing Practices

Criminal provisions of the United States Code prohibit offering or threatening federal jobs to induce payments, political activities, or contributions. Specifically, federal law prohibits anyone from asking for or receiving anything of value, including a campaign contribution, in return for promising to help someone obtain a federal post.[18] Further, candidates may not directly or indirectly promise appointment or use of influence or support in obtaining “any public or private position or employment” in return for someone’s political support. [19] Federal law also bars any individual from promising a federal job, contract, or benefit to a person as consideration or reward for political support or opposition to any candidate or party.[20] Moreover, no one may deprive or threaten to deprive anyone of a federal job or benefit as a way to induce political contributions, including services, for a candidate or party.[21] These provisions carry penalties ranging to fines of $10,000 and imprisonment for two years.

In addition to these provisions, during the 110^th Congress, the House amended the Code of Official Conduct (House Rule 23, clause 14) to prohibit any Member, Delegate, or Resident Commissioner from influencing an employment decision or employment practice of any private entity on the basis of partisan political affiliation.

Salary Kickbacks

Federal law contains no statutory provision that specifically bars “kickbacks.”[22] However, the Department of Justice, under general fraud statutes, has prosecuted several Members of Congress and congressional aides involved in kickback schemes. Section 1001 of title 18, for example, specifically prohibits the making of any false, fictitious, or fraudulent statements or knowingly covering up or concealing, by any trick or scheme, any material fact concerning matters in the jurisdiction of the executive, legislative, or judicial branch of the government.[23] A Member or employee who uses the mail to distribute payroll checks or other funds in furtherance of a kickback scheme may also be violating the federal mail fraud statute.[24]

Court and Standards Committee Actions. The United States Court of Appeals for the District of Columbia Circuit upheld the conviction of a Member of the House under an earlier version of 18 U.S.C. § 1001, concluding that the Member’s failure to disclose to the House payroll office the real purpose of pay to employees in a kickback scheme, in which such funds were used for personal and congressional expenses of the Member, was a material omission in violation of the criminal law.[25] In the course of a subsequent Committee investigation of the Member, he admitted that he had misused the clerk hire allowance (the clerk hire allowance is now included in the Members’ Representational Allowance (“MRA”))[26] in violation of then-House Rule 43, clauses 1 and 8, part of the Code of Official Conduct, and that he had been unjustly enriched thereby. He agreed to make restitution to the House, apologized, and was censured by the House.[27]

With respect to the MRA, this Committee has long taken the view that:

it is improper to levy, as a condition of employment, any responsibility on any clerk to incur personal expenditures for the primary benefit of the Member or of the Member’s congressional office operations . . . .

The opinion clearly would prohibit any Member from retaining any person from his [MRA] under either an express or tacit agreement that the salary paid to the individual is in lieu of any present or future indebtedness of the Member, any portion of which may be allocable to goods, products, printing costs, campaign obligations, or any other nonrepresentational service.[28]

[28] House Comm. on Standards of Official Conduct, Advisory Opinion No. 2 (July 11, 1973), reprinted in 119 Cong. Rec. H6073-74 (July 12, 1973), and in the appendices to this Manual.

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In the 100th Congress, a Delegate and his administrative assistant pleaded guilty to having conspired to defraud the United States in violation of the criminal conspiracy statute [29] by submitting payroll forms and collecting salary checks for individuals who did no work for the House. The Standards Committee found that the Delegate had used the checks to pay for hotel and meal expenses for visiting constituents and staff, campaign expenses, and travel for the Delegate and his family, in violation not only of the conspiracy statute, but also of the House Code of Official Conduct and the Code of Ethics for Government Service. The Delegate and employee resigned before the Committee could hold a disciplinary hearing to consider sanctions.[30]

In the 107th Congress, a Member was convicted of, among other things, conspiracy to violate the federal bribery statute [31] by agreeing to employ an individual as a member of the Member’s congressional district staff in exchange for certain gratuities, including the payment by that individual of $2,500 a month of his congressional salary.[32] In a subsequent Committee investigation, an investigative subcommittee stated in a letter transmitting a Statement of Alleged Violation to the full Committee that the individual had described in his trial testimony in detail how each month he deposited an envelope containing $2,500 under the door of the Member’s private office.[33] The Committee found that the conduct by the Member violated clauses 1-3 of the Code of Official Conduct (House Rule 23). On the basis of this violation, as well as other conduct found to be in violation of the Code of Official Conduct, which taken together were “of the most serious character meriting the strongest possible Congressional response,”[34] the Committee recommended that the House of Representatives adopt a resolution that the Member be expelled.[35] The House later voted to expel the Member.[36]