Reprinted from Roll Call (January 18, 2011)
Q: I run a lobbying firm in town that is looking to expand. We are
considering trying to hire one or two recently departed Members of the House. I
had lunch with one candidate the other day, and he told us that his status as a
former Member means that there are restrictions on what he would be able to do
for us. Before hiring anyone, I want to make sure that I fully understand those
restrictions. Would a former Member be able to lobby for us? If not, is there
anything he would be permitted to do?
A: Before turning to your question, I want to commend you on your
timing. Federal law does impose restrictions on what departing Members can do
after they leave the House. You are sensible to educate yourself about those
restrictions now, before making any hiring decisions. That way there will be no
unhappy surprises later.
The restriction on Members’ post-House employment are set forth in the Ethics
Reform Act, which President George H.W. Bush signed into law in 1989. That act
took post-employment restrictions that already existed for executive branch
employees and applied some of them to legislative branch employees.
The restrictions apply not just to Members but also to staffers who are paid
at least 75 percent of a Member’s salary. For such Members and staffers, the act
creates a one year “cooling-off period” during which they are prohibited from
engaging in certain types of activities. The cooling-off period begins on the
date the Member or staffer officially leaves the House payroll. For Members who
are not re-elected from one session to the next, that date is Jan. 3. Therefore,
any Members you are considering hiring who just left office after losing
re-election or retiring last year would be bound by the restrictions until Jan.
3 of next year.
So, what are the restrictions? Perhaps the most significant for your purposes
is that the Member cannot lobby. More specifically, the Member may not
communicate with or appear before any Member or staffer with the intent to
influence an official act or decision by such Member or staffer.
Note that what counts as “communicating” here is broader than what you might
think. The Department of Justice, which is charged with enforcing the
cooling-off period restrictions, has defined the term “communication” to mean
“the act of imparting or transmitting information with the intent that the
information be attributed to the former official.” This means that it is not
necessary for a Member actually to speak with someone for it to qualify as a
The interpretation of “appearing before” a Member or staffer is likewise
broad. In a memorandum released last month by the House Ethics Committee, the
committee confirmed previously issued guidance stating that an appearance
extends to a former Member’s mere physical presence at a proceeding where
circumstances make clear that his presence is intended to influence an official
act. It is even said to cover a request made on behalf of another person for a
meeting with a current Member or staffer regarding official business.
On the other hand, the restrictions on communications and appearances do not
forbid Members from advising clients concerning how to lobby Congress. Last
month’s House Ethics Committee memorandum confirmed this, stating that a
“background role” does not pose the risk of improper influence because the
current officials would not be aware of the former Member’s participation. The
former Member’s aid or advice, however, must remain behind the scenes.
Therefore, the memorandum stated, even where other people make contacts with
Congress with the intent to influence, Members must not permit their name to be
openly associated with those contacts.
The line between prohibited communications and permissible behind-the-scenes
activities is not always clear. The DOJ has admitted as much, stating that it is
not possible to create bright line rules. Rather, the DOJ says, whether a former
official “could be found criminally liable ... will vary depending upon the
facts and the strength of the circumstantial evidence that the former official
intended to be identified as the source of any information or views conveyed to
The DOJ has acknowledged the potential chilling effect of the vagueness of
the standard. For example, it has said, a very small firm with a former official
might refrain from submitting a report in the firm’s name even where the
official had no role in preparing the report, merely because the former official
might fear that the submission would be viewed as evidence that he intended to
be identified as the source of the report. However, the DOJ has said, the fact
that its guidance might discourage even certain lawful forms of communicating
with government officials is a permissible byproduct of a statute designed to
protect public confidence in government decision-making.
In other words, be careful.
© Copyright 2011, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit