A Question of Ethics

Writers Beware of Honorarium Restrictions

April 30, 2007

Q: I am a longtime Congressional staffer with a passion for fly-fishing and writing. Recently, my wife suggested that I combine those passions by writing about my fly-fishing excursions. She also is a staffer, and she writes poems in her spare time, many of which have been published in magazines. Because I always do as my wife says, I am now writing articles about my fly-fishing and submitting them to magazines in hopes of publication. I am not sure whether it makes any difference, but I follow the same procedures my wife follows with her poetry. Specifically, I make sure that the topics I cover have nothing to do with my official duties, I do all of my writing in my spare time, and I never use official resources. Not even pens! Also, I don’t tell the magazines that I am a Congressional staffer. Although it seems unlikely that my staff position would influence their decision, I don’t want even the appearance of impropriety. Last week, after many months of rejection letters, a magazine finally expressed interest in one of my submissions. The editor offered me $750 to publish it. May I accept the payment? And what about my wife’s poetry?

A: Your questions are an excellent reminder that, to comply with today’s House ethics rules, intuition is not always an adequate guide. When most of us think of ethics, we think of general standards of behavior that are largely intuitive. Although the House ethics standards started out that way, they have evolved into an elaborate set of technical rules that require deliberate attention. Your questions illustrate this well because answering them requires considering factors that might not immediately seem relevant.

The first such factor is your salary as a staffer. Under House Rule 25, there are two sets of restrictions on payments for articles. One set applies to House employees above a certain pay scale, while a slightly more lenient set applies to everyone else. The more stringent restrictions apply to all House employees paid at a rate greater than or equal to 120 percent of the minimum rate of basic pay for GS-15 of the General Schedule. That sum is currently $111,675.

If your salary is greater than or equal to this amount, you may not receive any “honorarium” — period. House Rule 25 defines an honorarium as “a payment of value for an appearance, speech, or article.” Therefore, if your salary qualifies you, the rules require you to decline the payment. In fact, the House ethics manual includes an example that is right on point. In that example, the manual states that a staffer who writes an article on rare butterflies for a nature magazine may not receive payment for the article even if it has nothing to do with his or her official duties or status, he or she uses no official resources, and the magazine has no interests related to his or her official duties.

On the other hand, if your salary is less than $111,675, you may accept an honorarium, but only if three conditions are met. First, the subject matter of your article must not directly relate to your official duties. Second, the payment must not be made because of your position within the House. And third, the person offering you the honorarium must not have interests that may be “substantially affected” by the performance or nonperformance of your official duties. Assuming these conditions are met, and, don’t forget, your salary is below $111,675, you may accept payment for your article.

This may make you wonder whether, by accepting payment for her poems all these years, your wife has been committing ethics violations, particularly if her House salary is greater than $111,675. Yet, oddly, in her case, the permissibility of the payments probably does not turn on her salary. Rather, the critical factor for her, believe it or not, is that she is writing poetry.

This is because the Committee on Standards of Official Conduct does not consider payments for poetry to be “honoraria.” In the ethics manual, the committee sets forth several exclusions from its definition of honorarium, exclusions that are not prohibited regardless of House salary. One such exclusion covers “payments for works of fiction, poetry, lyrics, or script, where the payment is not offered because of the author’s congressional status.” Therefore, so long as the magazines are not paying for your wife’s poems because of her Congressional status, the restrictions do not prohibit her from accepting the payments.

In your case, however, I presume that your fishing articles, while perhaps poetic, are not poetry. I presume also that they are not fiction, lyrics or script. If those presumptions are correct, the honorarium restrictions apply, and you should be aware of the corresponding penalties. One potential source of penalties is the Ethics Reform Act of 1989, where the honorarium ban originated. The act allowed the attorney general to bring court actions for honorarium ban violations, and to collect fines up to $10,000 for each offense. However, in 1995, the Supreme Court declared the act to be an unconstitutional abridgement of freedom of speech as applied to a group of executive branch employees who challenged the act. The court left open the question of applying the act to Congressional employees. The Department of Justice then issued an official opinion advising the attorney general that, in its view, no portion of the act’s honorarium ban survived the Supreme Court’s decision. Therefore, although the act’s ban officially has not been repealed, it is unlikely to be enforced by the attorney general.

That being said, the honorarium ban remains in place in the House Rules. Therefore, the ethics committee might issue sanctions if you accept payment for your article. Were the committee to do so, it is conceivable that you could challenge the sanctions on constitutional grounds. However, I’m not sure it would be worth the effort. I suspect you’d burn through your $750 before you even finished explaining your case to your attorney. All in all, you might be better off publishing your articles gratis.

© Copyright 2007, 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 www.rollcall.com.


A Question of Ethics

Congressional Offices Off-Limits for Members' Campaigns

April 16, 2007

Q: As chief of staff for a Member of the House, I read with interest a recent article in The New York Times Magazine regarding David Axelrod, Sen. Barack Obama’s (D-Ill.) chief political and media adviser for his presidential campaign. What particularly caught my eye, and what Roll Call noted, was the photograph accompanying the article, which depicted Sen. Obama meeting in his Senate office with Mr. Axelrod. My own role as chief of staff for a Member often requires me to meet with campaign staff. In order to comply with the ethics rules, we are generally careful not to conduct campaign meetings in House offices, and I never attend the meetings while on official House time. In fact, we generally discourage employees who work exclusively on campaign matters from even being present at the House office. However, the photo of Sen. Obama and his campaign adviser in his Senate office makes me wonder whether the ethics rules really require all of the precautions we take. Given our schedules, it certainly would be easier for us to host campaign meetings in our official House offices, particularly in our district. Do the House ethics rules allow campaign meetings in House offices?

A: Although the House ethics rules do not explicitly prohibit campaign meetings in House offices, the chamber’s ethics manual makes clear that the Committee on Standards of Official Conduct considers such meetings to be prohibited. As a general rule, the manual states, House offices “may not be used for the conduct of campaign or political activities.” More to the point, House offices “are not to be used for … a meeting on campaign strategy.” This is true of Members’ official offices in their districts, as well as their offices in D.C.

The ethics manual bases this prohibition on the general principle that official resources, which are funded by taxpayer money, must be used only for the performance of the official business of the House. Such resources therefore may not be used for campaign purposes. The manual cites a 1982 federal court decision stating: “government funds should not be spent to help incumbents gain reelection.” Because House offices are official resources, they generally are off-limits for campaign activities.

Therefore, to conduct a campaign meeting in a House office is to invite an ethics investigation. This is true not only of meetings involving campaign employees like Axelrod but also of campaign meetings involving only Congressional staff. A 2006 advisory memorandum states: “Any campaign work by staff members must be done outside the congressional office, on their own time, and without using any congressional office resources.”

In fact, conducting certain types of campaign activities in Congressional offices could lead not only to an investigation by the ethics committee but to criminal liability as well. Specifically, with a few narrow exceptions, it is a federal crime to solicit or receive a contribution to a federal election while in a Congressional office.

As for Obama, his conduct is governed not by the House’s ethics committee but by the Senate’s. Yet, as with many ethics issues, the Senate analysis is little different from the House. Like the House, the Senate does not have an ethics rule explicitly prohibiting campaign meetings in House offices. However, the Senate ethics manual does include language similar to the language in the House manual mandating that Senate resources be used only for official purposes. The Senate manual states that “general campaign or campaign fund activities should be conducted outside of the official space provided Members of Congress, and should generally be conducted with equipment, supplies or other facilities which are secured by private funds or contributions and not official congressional allowances or appropriations.”

It is possible, of course, that the meeting in Obama’s office with Axelrod did not qualify as a “campaign activity,” a term that the ethics manual does not define. For all we know, Obama and Axelrod could have been talking about anything, from the Washington Nationals’ poor start to whether Sanjaya Malakar should be voted off “American Idol.”

Yet, our inability to discern the subject matter of Obama’s meeting with Axelrod is precisely the reason it is generally a bad idea for campaign aides to meet in Congressional offices in the first place. Even if the purpose of the meeting is entirely innocent, the presence of a senior campaign adviser in a Congressional office creates the appearance that official resources are being used for campaign purposes. If the ethics committee were to learn of the meeting, it might suspect a violation and therefore conduct an investigation to determine the meeting’s subject matter. It often is the mere appearance of impropriety that leads to an ethics investigation.

To avoid an ethics investigation, then, the safest course is to stick with your current approach: Continue to take the precautions you are taking to minimize the appearance of impropriety. This does not mean that House staff may never work on campaigns. To the contrary, there are circumstances under which it is permissible for House staff to do so, although describing those circumstances would take up far more space than there is room for in this column. To address the question you raise, however, this does mean that official resources, including office space, should not be used for campaign activities. As inconvenient as your precautions might be, the “inconvenience” of an ethics investigation could be much greater.

© Copyright 2007, 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 www.rollcall.com.