Reprinted from Roll Call (June 14, 2011)

Q: I am the chief of staff for a freshman Member of the House with a question about an issue that seems to keep coming up. We often receive calls from constituents asking our Member to contact federal agencies regarding pending decisions affecting their constituents. Our general rule is that, because of the ethics rules, we do not assist with formal agency matters. However, constituents have recently pushed back, claiming the rules allow a Member to call on their behalf so long as the Member does not explicitly take a position regarding the merits of the matter. Is this right?

A: To a certain extent, the constituents are right. House ethics standards not only permit Members to communicate with agencies on behalf of constituents, they downright encourage it. According to the House Ethics Manual, serving as a “go-between” for a Member’s constituents and administrative agencies is an “important aspect of a House Member’s representative function.” The manual notes that the Constitution guarantees citizens the right to petition the government and that a logical point of contact is one’s elected Representative.

But, despite this encouragement for Members to communicate with agencies, not all such communications are permissible. Members must be careful of what they say to agency employees, how they say it and when they say it. You are right to proceed with caution.

For a given administrative proceeding, to understand the difference between permissible and impermissible communications with agency officials, two factors merit consideration. One is the type of administrative proceeding. The other is the content of the communication.

The primary restrictions on communications with federal agencies are found in the Government in the Sunshine Act. That act prohibits off-the-record communications — known as ex parte communications — with agency officials regarding the merits of matters under their formal consideration. The purpose of the ex parte rule, the Ethics Manual says, is to preserve the due-process rights of all parties to formal administrative proceedings. As the manual states: “Whenever parties to a dispute come before a formal tribunal, they are entitled to a fair, impartial hearing and to equal access to the fact-finder.” Therefore, the rule prohibits off-the-record communications by anyone — not just Members — made on behalf of an interested party.

The first factor is the type of proceeding. The ex parte rule applies only to formal agency proceedings. These include proceedings of a “trial-type” nature as well as rule-making proceedings that must include formal hearings and a decision on the record.

Thus, the House Ethics Manual states, a Member may communicate with agency officials “concerning those matters not subject to formal agency proceedings.”

The House Ethics Manual identifies examples of proceedings covered by the rules as well as those not covered by the rule. Examples of proceedings not covered by the rules include informal rulemaking proceedings, “development of agency policy” and “establishment of budgetary principles.”

One common example of a proceeding covered by the rule is a formal, contested proceeding to award a contract among competitive bidders. In such a circumstance, the manual says, a Member may not call the deciding official and suggest which bidder should be awarded the contract. The Member could, of course, express such a view in writing, as part of the record, consistent with agency procedure because the ex parte rule does not prohibit communications made on the record.

The second factor is the content of the communication. Even in the case of formal agency adjudicatory proceedings, not all ex parte communications from Members are forbidden. The Government in the Sunshine Act explicitly limits the prohibition on ex parte communications to those that are “relevant to the merits of the proceeding.” Therefore, the prohibition does not apply to “general background discussions about an entire industry which do not directly relate to specific agency adjudication involving a member of that industry.” The rule also does not prohibit “status requests,” “routine inquiries” or “referrals of constituent correspondence.” Moreover, a House ethics advisory opinion has stated that a Member may introduce an individual to an agency, arrange interviews and meetings for the individual, provide a character reference and urge prompt and fair consideration of a matter.

However, while communications unrelated to the merits of a formal agency matter are generally permissible, the House Ethics Committee has offered words of caution about such communications. The concern expressed by the committee has been that requests for background information or status requests “may in effect be an indirect or subtle effort to influence the substantive outcome of the proceedings.” The Ethics Manual suggests one way to avoid violating the rule is to communicate solely in writing. However, while this might be a sensible practice, it might not always be practical, and it is certainly by no means required.

In sum, there is no need for a Member’s office to implement a blanket rule against all communications with agency officials regarding pending matters. But Members who do engage in such communications should be mindful of the applicable rules. The rules require deliberate attention. They are anything but intuitive.

© 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 www.rollcall.com.

Reprinted from Roll Call (June 1, 2011)

Q: I have a question about reports that former Sen. John Edwards (D-N.C.) could face criminal charges relating to his extramarital affair with a campaign worker. I have a hard time understanding this. I certainly think that what Edwards did was awful, particularly given that his wife was battling cancer at the time. But as reprehensible as it is to have an extramarital affair, it seems odd to me that it would be illegal, even for a politician. Is it a crime for politicians to commit adultery?

A: It’s not the affair. It’s the cover-up. Isn’t it always?

Well, perhaps not always. But you do not have to look far to find a recent example of a politician in legal hot water for conduct following an extramarital affair. Former Sen. John Ensign (R-Nev.) resigned last month amid a Senate Ethics Committee investigation of his conduct relating to an affair with a former campaign worker. According to the committee’s report regarding the investigation, the conduct that could expose Ensign to liability is not the affair itself, but rather what he did after the affair.

In particular, the report states that Ensign may have violated campaign finance laws for his involvement in a $96,000 payment from Ensign’s parents to his former mistress and her family. Ensign and his parents have said the money was a gift. The Ethics report concluded, however, that the money may have been, in part, a severance payment to Ensign’s mistress upon leaving Ensign’s campaign. This is significant because if it were a severance payment, it technically would have come from Ensign’s campaign and therefore would have qualified as a contribution from Ensign’s parents to the campaign in an amount that well exceeds the annual contribution limit. The report also cites other examples of possible illegal conduct by Ensign in seeking to minimize the damage stemming from his affair.

In Edwards’ case, few people would dispute that his conduct was wrong. Edwards has admitted to fathering a child with a former campaign worker while his wife battled metastatic breast cancer, a disease that would eventually result in her death. In 2010, one polling organization, Public Policy Polling, called Edwards “the record holder for the most unpopular person we’ve polled anywhere at any time.”

But there is a difference between being unpopular and being a criminal. And Edwards, like Ensign, is being investigated not for his adultery itself, but for conduct surrounding his affair. While the nature of the charges Edwards might face remains unclear, reports suggest that the focus of the investigation could be possible misuse of campaign funds. A former Edwards staffer claims that friends of Edwards gave hundreds of thousands of dollars to help cover up his affair. At issue may be whether any of this money should have been treated as a campaign contribution. There are reports that Edwards could face an indictment as soon as next week and may be considering a plea deal.

The fact that the Edwards and Ensign investigations have not focused on adultery itself does not mean, of course, that adultery is never illegal. While adultery is not a federal crime, it remains listed as a crime in some states. Ensign’s home state, Nevada, is, ahem, not one of them. But, Edwards’ home state, North Carolina, is. A North Carolina “fornication and adultery” statute makes it a crime for a man and woman who are not married to one another to “lewdly and lasciviously associate, bed and cohabit together.” In a 2006 decision, a North Carolina lower court judge struck down this statute as unconstitutional, citing a 2003 U.S. Supreme Court ruling that a Texas ban on sodomy was unconstitutional. Therefore, the legal status of adultery statutes remains uncertain.

Nonetheless, they remain on the books in several states and could conceivably be enforced.

There are, of course, many reasons for a politician not to have an extramarital affair. Morally, most of us would agree that adultery violates one of the sacred vows of marriage. Politically, news of an extramarital affair can be devastating to a politician’s image and can cause an immediate drop in popularity with voters. Yet some marriages survive adultery, and some political careers withstand the public reaction to it. Sen. David Vitter (R-La.), for example, easily won re-election last year despite admitting to adultery. And President Bill Clinton remains a popular political figure despite his own extramarital affairs.

The investigations of Edwards and Ensign are reminders that, as if the moral and political reasons not to commit adultery are not enough, there is another reason for politicians not to do so: the law. Affairs and cover-ups cost money. Lots of it. And whenever politicians and large sums of money intersect, the murky federal campaign finance laws are implicated. Because of those laws, payments to the family of Ensign’s former mistress could result in criminal liability for Ensign. And payments to Edwards’ former mistress could have the same result for Edwards. Oh, what a tangled web.