Illegal Hiring and Firing Practices
Below is a condensed version of this topic. For complete guidance please refer to the House Ethics Manual, Chapter 7 on staff rights and duties.
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 110th Congress, the House amended the Code of Official Conduct (House Rule XXIII, 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.
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
18 See 18 U.S.C. § 211.
19 See 18 U.S.C. § 599.
20 See 18 U.S.C. § 600.
21 See 18 U.S.C. § 601.
22 The term kickback generally refers to a scheme whereby an employee is coerced, as a condition of employment, into remitting a portion of the individual’s salary to the employer or into spending a portion of the salary for goods or services for the employer’s benefit. It may also include the designation by an employer of certain persons on the payroll who actually perform no duties but turn over their salaries to the employer.
23 In 1996, the statute was amended to expressly extend its coverage to “any matter within the jurisdiction of the executive, legislative, or judicial branch.” False Statements Accountability Act of 1996, Pub. L. 104-292, § 2, 110 Stat. 3459 (1996) (emphasis added). The Supreme Court had held that a previous version of this statute prohibited making a false or fraudulent statement or falsifying or concealing a material fact on a payroll voucher or certification to a disbursing officer of the House to further a kickback scheme. See United States v. Bramblett, 348 U.S. 503 (1955). That decision was overruled by Hubbard v. United States, 514 U.S. 695, 715 (1995), which held that the false statements statute in effect at the time the conduct occurred did not apply to statements made in a judicial proceeding. See also United States v. Oakar, 111 F.3d 146 (D.C. Cir 1997) (relying on Hubbard and holding that the false statements statute did not apply to statements made to the House Committee on Ethics).
24 See 18 U.S.C. § 1341; see also Rostenkowski, 59 F.3d at 1294-95; Diggs, 613 F.2d at 997-99, 1002-03; United States v. Clark, Crim. No. 78-207 (W.D. Pa. 1978).