S. PUB. 108—1

SENATE ETHICS

MANUAL

Select Committee on Ethics

United States Senate

UNUM

E PLURIBUS

108th Congress

1st Session

2003 Edition

(Supersedes All Prior Editions)

SENATE ETHICS

MANUAL

Select Committee on Ethics

United States Senate

UNUM

E PLURIBUS

108th Congress

1st Session

2003 Edition

(Supersedes All Prior Editions)

For Sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

(ii)

SELECT COMMITTEE ON ETHICS

–––––––––––––––––––

108th Congress

George V. Voinovich, Ohio, Chairman

Harry Reid, Nevada, Vice Chairman

Pat Roberts, Kansas

Craig Thomas, Wyoming

Daniel Akaka, Hawaii

Blanche Lincoln, Arkansas

–––––––––––––––––––

Victor M. Baird, Staff Director and Chief Counsel

Kenyen Brown, Counsel

Eric Witiw, Counsel

Annette Gillis, Chief Clerk

Danny Remington, Systems Administrator

John Lewter, Professional Staff Member

(202) 224-2981

Website - http://ethics.senate.gov

This Edition of the Manual is dedicated to the memory of Elizabeth Ryan, Legal Counsel to the

Committee. (1992-2002)

(iii)

TABLE OF CONTENTS

Chapter 1: History, Jurisdiction, Procedures, and Role of the

Committee, and Sources of Senate Standards of Conduct

Page

Introduction ......................................................................................................................... 3

Overview .............................................................................................................................. 3

Preludes to Creation of the Select Committee on Standards and Conduct .................... 5

The Investigation of Bobby Baker and the Establishment of the Select Committee

on Standards and Conduct .............................................................................................. 9

Jurisdiction of the Committee ............................................................................................ 12

Overview of Committee Process and Procedures Regarding the Conduct of Inquiries

and Investigations ........................................................................................................... 14

Advisory Role of the Committee ......................................................................................... 17

Sources of Applicable Standards of Conduct ..................................................................... 17

Chapter 2: GIFTS

Introduction ......................................................................................................................... 21

The Gifts Rule ..................................................................................................................... 22

What is a Gift? ..................................................................................................................... 25

Who is Restricted? ............................................................................................................... 25

What Gifts are Acceptable? ................................................................................................ 25

Reporting of Gifts ......................................................................................................... 27

Gifts Paid for or Returned ........................................................................................... 27

Perishable Goods .......................................................................................................... 27

Political Contributions or Attendance at a Fundraiser ............................................. 27

Gifts from Relatives ..................................................................................................... 28

Gifts Based on Personal Friendship ........................................................................... 28

Contributions or Payments to a Legal Expense Trust Fund .................................... 30

Gifts from Other Members, Officers, or Employees .................................................. 31

Food, Refreshments, Lodging, and Other Benefits Related to Outside Activity ..... 31

Pension and Other Benefits ........................................................................................ 33

Information Materials .................................................................................................. 33

Awards or Prizes .......................................................................................................... 33

Honorary Degrees and Other Awards ........................................................................ 34

Donations of Home State Products ............................................................................. 34

Training ........................................................................................................................ 35

Bequests, Inheritances, and Other Transfers at Death ............................................ 36

Anything Paid for by the Federal, State, or Local Government ............................... 36

Personal Hospitality ..................................................................................................... 37

Free Attendance at a Widely Attended Event ........................................................... 38

Free Attendance at a Charity Event .......................................................................... 39

Sporting Events ............................................................................................................ 39

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iv U. S. SENATE ETHICS MANUAL

Opportunities and Benefits Available to a Wide Group ........................................... 39

Plaques, Trophies, or Other Commemorative Items ................................................. 40

Items for Which a Waiver is Granted by the Ethics Committee ............................. 41

Food or Refreshments Other than as Part of a Meal ................................................ 42

Items of Little Intrinsic Value .................................................................................... 42

General Guidelines ....................................................................................................... 42

Who is a ‘‘Lobbyist’’ for Purposes of the Gifts Rule ................................................... 43

National Political Conventions .................................................................................... 43

Travel ................................................................................................................................... 44

Necessary Expenses ..................................................................................................... 46

Time Limits .................................................................................................................. 47

Who May Pay ............................................................................................................... 48

Who May Accompany ................................................................................................... 49

Gifts and Travel from Foreign Governments and Organizations ............................ 49

‘‘Lame Duck’’ Travel ..................................................................................................... 52

Frequent Flyer Miles ................................................................................................... 52

Travel Summary ........................................................................................................... 53

Other Prohibited Gifts from Lobbyists, Lobbying Firms, and Foreign Agents .............. 54

Determining the Source of a Gift ....................................................................................... 55

Summary of Gifts Provisions Related to Senate Spouses ................................................ 56

Solicitation of Gifts .............................................................................................................. 57

Bribery and Illegal Gratuity ............................................................................................... 58

Valuation of Certain Gifts .................................................................................................. 59

Tickets to Fundraisers ................................................................................................. 59

Season Passes ............................................................................................................... 59

Tickets in a Performance Arena ................................................................................. 59

Club Memberships ....................................................................................................... 60

Private Air Travel ........................................................................................................ 60

Group Gifts ................................................................................................................... 60

Taxes as Part of the Value of a Gift ........................................................................... 62

Financial Disclosure of Gifts .............................................................................................. 62

Chapter 3: CONFLICTS OF INTEREST AND OUTSIDE EARNED

INCOME

Introduction ......................................................................................................................... 64

Overview .............................................................................................................................. 64

Conflicts of Interest ............................................................................................................. 66

The Basic Principles ..................................................................................................... 66

Legislative Action ......................................................................................................... 69

Staff Holdings ............................................................................................................... 70

Professional/Fiduciary Restrictions .................................................................................... 71

The 90-Day Affiliation Rule for Employees and Per Diem Employees .................... 74

Officer, Board, or Advisory Service ............................................................................. 74

Establishment of a Charitable Foundation ................................................................ 77

Teaching ........................................................................................................................ 79

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CONTENTS v

Legal Practice ............................................................................................................... 80

Representing Others Before Federal Government ............................................................ 80

Contracting with the Federal Government ....................................................................... 82

Dual Government Employment .......................................................................................... 84

Campaign Work ................................................................................................................... 84

Holding State/Local Office ........................................................................................... 85

Holding Federal Office ................................................................................................. 85

Jury Duty ............................................................................................................................. 86

Foreign Governments .......................................................................................................... 86

Post-Employment Restrictions ........................................................................................... 86

Restrictions Under Senate Rule .................................................................................. 87

Restrictions Under Criminal Law ............................................................................... 89

Penalties ....................................................................................................................... 90

Exceptions ..................................................................................................................... 90

Negotiating for Future Employment .......................................................................... 91

Employment Considerations for Spouses .......................................................................... 93

Outside Activity/Income Summary .................................................................................... 95

Outside Earned Income and Honoraria (Rule 36) ............................................................ 97

The 15 Percent Limit (Affecting Members and Senior Staff) .......................................... 97

What is Outside Earned Income? ............................................................................... 97

Honoraria Ban ..................................................................................................................... 98

Definitions ..................................................................................................................... 99

Exclusions ..................................................................................................................... 100

Stipends ........................................................................................................................ 101

Donations to Charity .................................................................................................... 101

Chapter 4: PROHIBITION ON UNOFFICIAL OFFICE ACCOUNTS

Introduction ......................................................................................................................... 105

Interpretative Ruling 443 ................................................................................................... 105

Discussion of Interpretative Ruling 444 ............................................................................ 106

Background ................................................................................................................... 106

Question answered by IR 444 ..................................................................................... 106

Rule 38 .......................................................................................................................... 106

Application of Rule 38 as implemented by IR 444 .................................................... 106

General Principles ........................................................................................................ 107

Franking Expenses ...................................................................................................... 107

Expenses for Senate Employees .................................................................................. 108

Consultant, Per Diem, and Special Government Employees .................................... 109

Expenses for Office Space ............................................................................................ 110

Use of Senate Space ..................................................................................................... 110

Equipment Expenses .................................................................................................... 110

General Rule .......................................................................................................... 110

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vi U. S. SENATE ETHICS MANUAL

Limited Exception ................................................................................................. 110

Any Other Official Expenses ....................................................................................... 112

Integrity of Accounts .................................................................................................... 112

Related Matters ............................................................................................................ 112

Cosponsored Constituent Service Events ............................................................ 112

Fact-finding Expenses .......................................................................................... 113

Government Entities ............................................................................................. 113

Interns, Fellows, and Volunteers ......................................................................... 113

Legal Expenses, as Amicus Curiae or as a Party ............................................... 115

Meeting Space and Refreshments ....................................................................... 116

Motor Vehicles ....................................................................................................... 116

Official Mail, Other Than Mass Mailings ........................................................... 116

Publications ........................................................................................................... 117

Radio and Television Studio ................................................................................. 117

Senate Employee ‘‘de minimis’’ Expenses ........................................................... 117

Caucuses ....................................................................................................................... 118

Furniture, Furnishings, and Artwork ........................................................................ 118

Payment and Allocation of Mixed Purpose Travel Expenses ................................... 119

Travel Expenses for Non-Senate Individuals ............................................................. 120

Participation in Third Party Events ........................................................................... 120

Office Retreats .............................................................................................................. 120

Political Events ............................................................................................................ 121

Issues for Senators-Elect .................................................................................................... 121

Issues for Members leaving Office ..................................................................................... 122

Chapter 5: FINANCIAL DISCLOSURE

Introduction ......................................................................................................................... 124

Financial Disclosure ............................................................................................................ 124

Background ................................................................................................................... 124

Filing Procedures ......................................................................................................... 125

Who Must File ....................................................................................................... 125

Filing Deadlines, Committee Review, and Amendments ................................... 126

Failure to File or Filing False Disclosure Statements ....................................... 127

Spouse and Dependent Information .................................................................................. 127

The Disclosure Report ......................................................................................................... 128

Part I: Payments in Lieu of Honoraria ................................................................ 128

Part II: Earned and Non-Investment Income ....................................................... 128

Part III: Assets and Unearned Income Sources ..................................................... 129

Part IV: Transactions ............................................................................................... 133

Part V: Gifts ............................................................................................................ 134

Part VI: Travel Reimbursements ............................................................................ 135

Part VII: Liabilities ................................................................................................... 135

Part VIII: Positions Held Outside U.S. Government ............................................... 136

Part IX: Agreements or Arrangements ................................................................... 136

Part X: Compensation of $5,000 Paid by One Source .......................................... 136

Chapter 6: POLITICAL ACTIVITY

Introduction ......................................................................................................................... 139

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CONTENTS vii

Campaign Work by Congressional Staff ............................................................................ 139

Political Fund Activity ................................................................................................. 142

Seeking and Holding Local Offices ............................................................................. 143

Campaign Activity in a Federal Building .................................................................. 144

Political Contributions from Senate Employees ........................................................ 147

Political Contributions from Other Federal Employees ............................................ 149

Quick Reference to Frequently Asked Campaign-Related Questions ............................. 149

General Campaign Finance Requirements ....................................................................... 151

Restrictions on Receipt of Contributions .................................................................... 152

Campaign Use of Official Resources .................................................................................. 153

Mailing Lists ................................................................................................................. 153

Use of Campaign Funds ...................................................................................................... 154

No Personal Use ........................................................................................................... 154

No Franked Documents ............................................................................................... 155

Legal Defense Funds .................................................................................................... 155

Federal Criminal Law: False Claims, Fraud and Theft ................................................... 155

List of Prohibited Campaign Activities ............................................................................. 157

Chapter 7: USE OF THE FRANK, STATIONERY, AND SENATE

FACILITIES

Introduction ......................................................................................................................... 160

The Frank ............................................................................................................................ 160

Authorization to Use the Frank .................................................................................. 161

Loan of Frank Prohibited ............................................................................................ 162

General Standards of Frankability ............................................................................. 163

Frankable Mail ............................................................................................................. 163

Nonfrankable Mail ....................................................................................................... 165

Mass Mailings .............................................................................................................. 167

Senate Letterhead ............................................................................................................... 171

Use of the Great Seal and the Senate Seal ....................................................................... 172

Senate Facilities: Auction Items, Moratoria, and Internet .............................................. 172

Chapter 8: CONSTITUENT SERVICE

Introduction ......................................................................................................................... 177

Senate Rule 43 ..................................................................................................................... 177

Excerpt from the Committee’s 1991 Keating Report Concerning Interventions with

Administrative Agencies ................................................................................................. 179

Hatch Act: Letters of Recommendation ............................................................................. 185

Chapter 9: EMPLOYMENT PRACTICES

Introduction ......................................................................................................................... 193

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viii U. S. SENATE ETHICS MANUAL

Congressional Accountability Act ....................................................................................... 193

Senate Anti-Discrimination Rule ....................................................................................... 194

Nepotism Statute ................................................................................................................. 195

Personal Activities with Appropriated Funds ................................................................... 196

APPENDICES

A. Compilation of Annotated Interpretative Rulings of the Select Committee on

Ethics ............................................................................................................................ 197

B. Senate Code of Official Conduct (S. Prt. 104-40) ....................................................... 309

Public Financial Disclosure (Rule 34) ........................................................................ 312

Gifts (Rule 35) .............................................................................................................. 314

Outside Earned Income (Rule 36) ............................................................................... 320

Conflict of Interest (Rule 37) ....................................................................................... 321

Prohibition of Unofficial Office Accounts (Rule 38) ................................................... 324

Foreign Travel (Rule 39) .............................................................................................. 325

Franking Privilege and Radio and Television Studios (Rule 40) ............................. 326

Political Fund Activity; Definitions (Rule 41) ............................................................ 328

Employment Practices (Rule 42) ................................................................................. 330

Constituent Service (Rule 43) ..................................................................................... 331

Title I of the Ethics in Government Act (Rule 34, Appendix A of S. Prt. 104-

40) .............................................................................................................................. 332

C. Rules of Procedure, Senate Ethics Committee .......................................................... 352

Part I. Organic Authority ............................................................................................ 356

Subpart A. S. Res. 338, as Amended ................................................................ 356

Subpart B. Public Law 93-191, Franked Mail Provisions Relating to the

Select Committee ............................................................................ 362

Subpart C. Standing Orders of the Senate Regarding Unauthorized

Disclosure ......................................................................................... 363

Subpart D. Public Law 94-105, section 515, Relating to Receipt and

Disposition of Foreign Gifts and decorations Received by

Members, Officers, and Employees of the Senate or Their

Spouses or Dependents, Provisions Relating to the Select

Committee on Ethics ...................................................................... 363

Part II. Supplementary Procedural Rules .................................................................. 367

Rule 1. General Procedures ............................................................................... 367

Rule 2. Procedures for Complaints, Allegations, or Information .................... 371

Rule 3. Procedures on Receipt of Allegations Other than a Sworn

Complaint; Preliminary Inquiry ........................................................... 371

Rule 4. Procedures for Conducting an Adjudicatory Review .......................... 373

Rule 5. Procedures for Hearings ....................................................................... 374

Rule 6. Subpoenas and Depositions .................................................................. 378

Rule 7. Violations of Law; Perjury; Legislative Recommendations; and

Applicable Rules and Standards of Conduct ....................................... 379

Rule 8. Procedures for Handling Committee Sensitive and Classified

Materials ................................................................................................ 380

Rule 9. Broadcasting and News Coverage of Committee Proceedings ........... 382

Rule 10. Procedures for Advisory Opinions ...................................................... 382

Rule 11. Procedures for Interpretative Rules ................................................... 383

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CONTENTS ix

Rule 12. Procedures for Complaints Involving Improper Use of the Mailing

Frank .................................................................................................... 384

Rule 13. Procedures for Waivers ....................................................................... 385

Rule 14. Definition of Officer or Employee ....................................................... 385

Rule 15. Committee Staff ................................................................................... 386

Rule 16. Changes in Supplementary Procedural Rules ................................... 387

Part III. Subject Matter Jurisdiction .......................................................................... 387

Appendix A—Open and Closed Meetings ............................................................ 388

Appendix B—Supervisor Defined ........................................................................ 389

Revisions ................................................................................................................ 390

D. Select Federal Ethics-Related Laws ........................................................................... 399

E. Improper Conduct Reflecting Upon the Senate and General Principles of Public

Service ........................................................................................................................... 431

F. Regulations Governing the Use of the Mailing Frank .............................................. 437

G. Rule 35 Travel Reimbursement Form (RE-1/2) ......................................................... 474

H. Regulations Regarding Disclosure of Certain Pro Bono Legal Services .................. 482

I. Regulations Governing Legal Expense Trust Funds .................................................. 485

J. Rules Committee Policy For Use of Senate Rooms, The Russell Rotunda and

Courtyard, The Hart Atrium, and the Capitol Rotunda ............................................ 494

K. Rules Committee Internet Usage Policy .................................................................... 498

L. Rules Committee Moratoria Statement ...................................................................... 503

M. Selected Bibliography .................................................................................................. 507

Index ..................................................................................................................................... 512

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PREFACE

The Senate Select Committee on Ethics is authorized to publish regulations necessary to

implement the Senate Code of Official Conduct, and to issue interpretative rulings and

advisory opinions regarding the application of any law, rule, or regulation within the

Committee’s jurisdiction.

In early 1993, the Ethics Committee commissioned its staff to begin preparation of an

ethics manual. Later that year, the Ethics Study Commission, whose membership

included all Members of the Ethics Committee and other current and former Members,

also recommended that the Committee augment its efforts to educate Senate Members,

officers, and employees about ethics issues. This manual is part of that effort.

The manual’s purpose is to explain the application of the Senate’s Code of Official Conduct

and related ethics laws, and to describe the operation and role of the Committee. The

intent is to provide a ‘‘single source’’ of information about ethics-related provisions of the

U. S. Constitution, Federal statutes, and Senate Rules which regulate the operation of

a Senate office and the conduct of Senate Members, officers, and employees. As such, the

manual provides an efficient and effective means of meeting the Committee’s educational

obligation to the Senate.

The Committee has traditionally relied upon the periodic issuance of Interpretative Rulings

to advise Senate Members, officers, and employees on the application of the Code of

Conduct. Each Interpretative Ruling previously issued by the Committee and referred to

in this manual is reprinted in Appendix A for easy reference. Because the Interpretative

Rulings span the period from April, 1977 to June, 1995, a time during which significant

changes in Senate Rules have occurred, each Interpretative Ruling in Appendix A has

been annotated to explain how the Ruling applies under current Rules. Many of the

Committee’s early Rulings are no longer valid due to Rule changes. Thus, earlier

printings of the Committee’s Interpretative Rulings (e.g. S. Prt. 103-35) should NOT be

relied upon for advice. Instead, the annotated Rulings reprinted in Appendix A, the text

of this manual, and such future Rulings as may be issued by the Committee should be

referred to for guidance.

As needed, the Committee has also historically issued, and will continue to issue, advice

in the form of ‘‘Dear Colleague’’ advisory letters covering a particular subject.

Additionally, over the past 18 years, the Committee has issued thousands of private

letter rulings to Members, officers, and employees, providing advice on the application

of a law or rule to a specific set of facts. Members, officers, and employees may continue

to request such written advice.

The Committee staff may be reached at 202-224-2981. Committee information is also

available through it’s Website, http://ethics.senate.gov.

This manual attempts to consolidate all forms of the Committee’s previously issued advice

and rulings, and to present it in an easy to use and understandable format.

The reader should also understand, however, that the Federal statutes and Senate Rules

to which most of this manual’s discussion is devoted, are but a part of a wider body of

ethical standards related to service in the Senate. Unwritten norms of behavior, reflected

in the established customs of the Senate, are an important source of behavioral

standards. The manual, in Appendix E, includes a discussion on the Senate’s unwritten

standards, and also presents general principles of public service.

Page

2

Chapter 1: History, Jurisdiction, Procedures, and Role of the

Committee, and Sources of Senate Standards of Conduct

Introduction ......................................................................................................................... 3

Overview .............................................................................................................................. 3

Preludes to Creation of the Select Committee on Standards and Conduct .................... 5

The Investigation of Bobby Baker and the Establishment of the Select Committee

on Standards and Conduct .............................................................................................. 9

Jurisdiction of the Committee ............................................................................................ 12

Overview of Committee Process and Procedures Regarding the Conduct of Inquiries

and Investigations ........................................................................................................... 14

Educational and Advisory Role of the Committee ............................................................ 17

Sources of Applicable Standards of Conduct ..................................................................... 17

3

1The material in this Chapter relies heavily upon, and passages have been liberally taken from, the following publications: The Senate Select Committee on Ethics: A Brief History of Its Evolution and Jurisdiction, Mildred Amer, Congressional Research Service, The Library of Congress (March 17, 1993); Two Periods - 1787 to 1873 and 1951 to 1977

- In the Development of Legal and Ethical Constraints on the Conduct of Members of the Senate, With Particular Emphasis on Conflicts of Interest and Unwritten Standards of Conduct, Michael Davidson, Senate Legal Counsel, Morgan

J. Frankel and Claire M. Sylvia, Assistant Senate Legal Counsel (March 1991). See also Expulsion and Censure Actions

Taken by the Full Senate Against Members, Jack Maskell, Congressional Research Service, The Library of Congress

(October 3, 1990, revised September 17, 1993).

Chapter 1

HISTORY, JURISDICTION, PROCEDURES, AND ROLE OF THE

COMMITTEE

AND

SOURCES OF SENATE STANDARDS OF CONDUCT 1

INTRODUCTION

The U.S. Constitution, in Article I, section 5, grants broad authority to Congress to discipline

its Members. However, the modern age of congressional ethics committees and formal rules governing the conduct of Members, officers, and employees did not exist until the 1960’s, with prior

disciplinary actions by Congress against Members taking place on an ad hoc basis. In 1964, in

the wake of the Bobby Baker scandal, the Senate adopted S. Res. 338, 88th Congress, which created the Senate Select Committee on Standards and Conduct as a six-member, bipartisan committee with advisory functions and investigative authority to ‘‘receive complaints and investigate

allegations of improper conduct which may reflect upon the Senate, violations of law, and violations of rules and regulations of the Senate.’’ In 1968, the Senate adopted its first official code

of conduct, with substantial revision and amendment of the code occurring in 1977. The Committee’s name was changed in 1977 to the Select Committee on Ethics. The following chapter provides a brief synopsis of the evolution of the Committee and its jurisdiction, with an overview

of the Committee’s advisory role, its procedures for conducting inquiries and investigations, and

a discussion of the sources of standards of conduct in the Senate.

OVERVIEW

The Select Committee on Standards and Conduct was established by the Senate on July 24,

1964. In February 1977, following Senate-wide committee reorganization, its name was changed

to the Select Committee on Ethics. The bipartisan Committee, which has six members, is authorized to oversee the Senate’s self-discipline authority provided by the Constitution. Article 1, Section 5 states in part that:

Each House may determine the Rules of its proceedings, punish its Members for disorderly

behavior, and, with the concurrence of two thirds, expel a Member.

The Committee is authorized to:

4 SENATE ETHICS MANUAL

2Baker, Richard. The History of Congressional Ethics. In: Representation and Responsibility, Exploring Legislative

Ethics. New York, Plenum Press, 1985. p. 4.

1) receive complaints and investigate allegations of improper conduct which may reflect

upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and

violations of rules and regulations of the Senate, relating to the conduct of individuals in the

performance of their duties as Members of the Senate, or as officers or employees of the Senate, and to make appropriate findings of fact and conclusions with respect thereto;

2) recommend, when appropriate, disciplinary action against Members and staff;

3) recommend rules or regulations necessary to insure appropriate Senate standards of

conduct;

4) report violations of any law to the proper Federal and State authorities;

5) regulate the use of the franking privilege in the Senate;

6) investigate unauthorized disclosures of intelligence information;

7) implement the Senate public financial disclosure requirements of the Ethics in Government Act;

8) regulate the receipt and disposition of gifts from foreign governments received by

Members, officers, and employees of the Senate;

9) render advisory opinions on the application of Senate rules and laws to Members, officers, and employees; and

10) for complaints filed under the Government Employee Rights Act of 1991 respecting

conduct occurring prior to January 23, 1996, review, upon request, any decision of the Senate

Office of Fair Employment Practices.

The Committee may investigate allegations brought by Members, officers, or employees of

the Senate, or by any other individual or group, or the Committee may initiate an inquiry on its

own. There are no formal procedural requirements for filing a complaint with the Committee. Unless the Committee issues a public statement relating to a particular inquiry, complaints and allegations are treated confidentially, and the Committee neither confirms nor denies that a particular

matter may be before the Committee. Upon completion of its investigative process, the Committee

may recommend to the Senate or party conference an appropriate sanction for a violation or improper conduct, including, for Senators, censure, expulsion, or party discipline and, for staff members, termination of employment.

* * * * * * * * * * *

Until the 1960s, there were no permanent congressional ethics committees, no formal rules

governing the conduct of Members, officers, and employees in either House of Congress, nor any

consistent approach to the investigation of alleged misconduct. When allegations were investigated,

it was usually by special or select committees created for that purpose. Sometimes, however, they

were considered by the House or Senate without prior committee action.

Moreover, the Senate and the House of Representatives have traditionally exercised their powers of self-discipline with caution. Senate Historian Richard Baker notes: ‘‘For nearly two centuries, a simple and informal code of behavior existed with prevailing norms of decency the chief

determinants of proper conduct. Congress has chosen to deal with only the most obvious acts of

wrongdoing. . .’’ 2

Several events, beginning in the 1950’s, led to the creation in 1964 of the Select Committee

on Standards and Conduct.

CHAPTER 1 5

3 Study of Reconstruction Finance Corporation: Hearings Before a Subcomm. of the Senate Comm. on Banking

and Currency, 81st Cong., 2d Sess. & 82d Cong., 1st Sess. (1950–51). See also Influence in Government Procurement:

Hearings Before the Investigations Subcomm. of the Senate Comm. on Expenditures in the Executive Departments, 81st

Cong., 1st Sess. (1949); Influence in Government Procurement: Hearings Before the Investigations Subcomm. of the

Senate Comm. on Expenditures in the Executive Departments, 82d Cong., 1st Sess. (1951); Investigation of Organized

Crime in Interstate Commerce: Hearings Before the Senate Special Comm. To Investigate Organized Crime in Interstate

Commerce, 81st and 82d Cong. (1950–51); Inquiry Into the Operations of the Maritime Commission With Particular

Reference to Allowances for National-Defense Features and Construction-Differential Subsidies Under Title V of the

Merchant Marine Act of 1936, As Amended: Hearings Before a Subcomm. of the House Comm. on Expenditures in

the Executive Departments, 81st Cong., 1st Sess. (1949). 4Establishment of a Commission on Ethics in Government: Hearings Before a Subcomm. To Study S. Con. Res.

21 of the Senate Comm. on Labor and Public Welfare, 82d Cong., lst Sess. 2 (1951), reprinting 97 Cong. Rec. 2904–

06 (1951). 5 97 Cong. Rec. 2905. Senator Fulbright elaborated, as follows:

One of the most disturbing aspects of this problem of moral conduct is the revelation that among so many

influential people, morality has become identical with legality. We are certainly in a tragic plight if the accepted standard by which we measure the integrity of a man in public life is that he keep within the letter of

the law.

Id. 6Establishment of a Commission on Ethics in Government: Hearings Before a Subcomm. To Study S. Con. Res.

21 of the Senate Comm. on Labor and Public Welfare, 82d Cong., 1st Sess. 1 (1951). 7T3Ethical Standards in Government, Report of a Subcomm. of the Senate Comm. on Labor and Public Welfare,

82d Cong., 1st Sess. 1 (Comm. Print 1951)[hereinafter cited as Ethical Standards in Government]. 8 S.J. Res. 107, 82d Cong., 1st Sess. (1951), reprinted in id. at 69, reported by S. Rep. No. 933, 82d Cong., 1st

Sess. (1951). The resolution reported by the committee to establish a national ethics commission was not agreed to

by the Senate, and no commission was established.

A. PRELUDES TO CREATION OF THE SELECT COMMITTEE ON

STANDARDS AND CONDUCT

1. The Douglas Subcommittee Report

In the early 1950’s a series of congressional hearings focused attention on issues of ethical

misconduct in the government and private sectors. Central among these congressional inquiries was

a set of hearings conducted by Senator J. William Fulbright into conflicts of interest and questionable dealings involving the Reconstruction Finance Corporation. 3 At the conclusion of the RFC

hearings, Senator Fulbright took the Senate floor to speak on ‘‘The Moral Deterioration of American Democracy.’’ 4 Senator Fulbright identified a problem of government employees who committed ethical lapses not amounting to criminal conduct. He asked,

What should be done about men who do not directly and blatantly sell the favors of

their offices for money and so place themselves within the penalties of the law? How

do we deal with those who, under the guise of friendship, accept favors which offend

the spirit of the law but do not violate its letter? 5

Fulbright introduced a resolution to establish a national commission on ethics in the federal government. S. Con. Res. 21, 82d Cong., 1st Sess. (1951).

Senator Fulbright’s resolution was referred to a special subcommittee of the Senate Committee

on Labor and Public Welfare chaired by Senator Paul H. Douglas, who had sat on Fulbright’s

committee when it investigated the RFC. Senator Douglas convened a set of hearings in 1951 ‘‘to

review the ethical dilemmas and conflicting pressures which confront public officials and private

citizens in their relationship to government: to identify and analyze specific improper practices and

unfair methods’’ and to recommend remedies. 6

The Douglas subcommittee recommended establishment of a government commission on ethics in government, 7 and the Labor and Public Welfare Committee reported legislation to establish

such a commission. 8 The subcommittee found that Congress had been ‘‘unduly complacent’’ in

failing to ‘‘act[] vigorously to tighten its discipline in moral matters or to raise its ethical standVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00019 Fmt 5222 Sfmt 5222 SMANUAL.001 ETHICS1 PsN: ETHICS1
6 SENATE ETHICS MANUAL

9 Id. at 15.

10 Id. at 36.

11T3Id. at 5 (emphasis added).

12Report of the Select Committee to Study Censure Charges Re Senator McCarthy of Wisconsin, Senate Report

No. 83–2508, November 8, 1954.

ards.’’ 9 The subcommittee took note of recommendations for the formulation and adoption of a

written ethical code for Members of Congress, among other groups, and concluded that a national

commission on ethics in government would help achieve that goal. 10 The subcommittee was clear,

however, that it did not assume that all ethical norms had been or would be reduced to written

codes, and it took note of proposals for ‘‘[v]igorous enforcement of existing standards of conduct

in public affairs whether contained in written or unwritten codes....’’ 11

2. The Discipline of Senator Joseph McCarthy

The joint resolution that had been reported by the Douglas subcommittee would have provided

for a report in the 83d Congress, which met in 1953 and 1954, from the proposed commission

on ethics, but the predominant ethical issue within the Senate during that Congress did not concern

government-wide ethics but rather the ethics of one of its members, Joseph McCarthy.

In 1954, the Senate established a select committee to investigate charges of misconduct that

had been brought against Senator McCarthy. After completing its investigation, the Select Committee recommended that the Senate censure Senator McCarthy for two charges of misconduct.

At the conclusion of its report, the Select Committee addressed its decision not to hold hearings on the remainder of the charges. The Select Committee explained how it approached its task

of determining what conduct was censurable and which charges were ‘‘legal[ly] insufficien[t].’’ 12

The Committee observed that:

conduct may be distasteful and less than proper, and yet not constitute censurable behavior.

We begin with the premise that the Senate of the United States is a responsible political

body, important in the maintenance of our free institutions. Its Members are expected

to conduct themselves with a proper respect for the principles of ethics and morality,

for senatorial customs based on tradition, and with due regard for the importance of

maintaining the good reputation of the Senate as the highest legislative body in the Nation....

Id. at 62. However, the Committee also noted

that individual Senators may, within the bounds of political propriety, adopt different

methods of discharging their responsibilities to the people.

We did not, and clearly could not, undertake here to establish any fixed, comprehensive

code of noncensurable conduct for Members of the United States Senate. We did apply

our collective judgment to the specific conduct charged, and in some instances to the

way a charge was made and the nature of the evidence proffered in support of it. And

on the basis of the precedents and our understanding of what might be deemed censurable conduct in these circumstances, we determined whether, if a particular charge were

established, we would consider it conduct warranting the censure of the Senate.

Id. at 62.

The Senate ultimately voted to censure Senator McCarthy on two counts, one that had been

recommended by the Select Committee, and one that had not been considered by the Select Committee: abuse of the Subcommittee on Privileges and Elections and abuse of the Select Committee

to Study Censure Charges. The Senate’s investigation and its final decision evidenced the Senate’s

understanding that censurable conduct included conduct not specifically prohibited by rule or statute.

CHAPTER 1 7

13 Several other House Members introduced similar resolutions. See H.R. Con. Res. 126–127, 129–132, 82d Cong.,

1st Sess. (1951). 14 H.R. Con. Res. 2, 83d Cong., 1st Sess. (1953); H.R. Con Res. 10, 83d Cong., 1st Sess. (1953); H.R. Con. Res.

2, 84th Cong., 1st Sess. (1955); H.R. Con. Res. 17, 84th Cong., 1st Sess. (1955).

3. The 1958 Code of Ethics for Government Service

The proposals made in testimony before Senator Douglas’s subcommittee in 1951 for adoption

of a code of ethical conduct for government officials and employees continued to percolate in the

Congress during the 1950s until the Congress finally adopted a government-wide code of conduct

in 1958. The principal proponent of the adoption of a government code of ethics throughout these

years was Representative Charles Bennett. In 1951 Representative Bennett introduced a resolution

that would have made it ‘‘the sense of the Congress’’ that ‘‘all Government employees, including

officeholders,’’ adhere to a ten-point code. H.R. Con. Res. 128, 82d Cong., 1st Sess. (1951).

Representative Bennett’s resolution was the joint product of an informal committee of House

members, including Representatives Hale Boggs and Gerald Ford, who had been meeting over several months to draft a proposed code. 13 This House task force developed a preliminary statement

of principles that ‘‘precede any code of concrete conduct,’’ including the precept that ‘‘[p]ublic

office is a public trust.’’ 97 Cong. Rec. 7176 (1951). The task force explained, ‘‘No code of conduct can hope to cover specifically the multitude of concrete situations which the complex and

vast sphere of contemporary government contains within itself. Yet we believe there is value in

identifying certain concrete principles which should guide public officials—in whatever branch or

level of government.’’ Id.

The proposed code would have imposed upon government employees the duty, among ten

itemized obligations, never to ‘‘discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not; and never [to] accept favors or benefits from

persons doing business with the Government.’’ H.R. Con. Res. 128, ¶ 5.

Identical resolutions to establish a code of government conduct were reintroduced in the

Eighty-Third and Eighty-Fourth Congresses. 14

A congressional resolution establishing a code of conduct for government employees and officials was finally agreed to in the Eighty-Fifth Congress.

The House committee described the resolution as ‘‘essentially a declaration of fundamental

principles of conduct that should be observed by all persons in the public service.’’ H.R. Rep.

No. 1208, 85th Cong., 1st Sess. 1 (1957). The Committee stated that the resolution ‘‘is not a mandate. It creates no new crime or penalty. Nor does it impose any positive legal requirement for

specific acts or omissions.’’ Id. The Committee explained, ‘‘It does not pretend or purport to create new or unfamiliar standards. It is a concise restatement—as a part of the laws under which

the Federal Government operates—of the principles of conduct in the public service which always

have been expected by the American people.’’ Id. at 2. Without debate, the House of Representatives agreed to the ‘‘sense of the Congress’’ resolution as reported by the Committee. 103 Cong.

Rec. 16297 (1957).

The following year, the Senate Committee on Post Office and Civil Service reported the resolution without amendment. S. Rep. No. 1812, 85th Cong., 2d Sess. (1958). The Committee made

express its intent that the ‘‘resolution apply to every servant of the public,’’ including Members

of Congress. Id. at 2.

The Senate agreed to the concurrent resolution as reported, 104 Cong. Rec. 13556–57 (1958),

and the resolution establishing a code of conduct for all government employees became effective.

72 Stat. B12 (1958).

This Code of Ethics for Government Service is listed in the Committee’s Rules of Procedure

(Part III, Sources of Jurisdiction) as a source of Committee jurisdiction. The Code of Ethics for

8 SENATE ETHICS MANUAL

15The old conflict provision, section 1782 of the Revised Statutes, had been carried forward with minor revisions

as section 113 of the Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088, 1109 (1909), which recodified the federal criminal

laws, and subsequently as section 281 of title 18 of the federal code, through the Act of June 25, 1948, ch. 645, §

1, 62 Stat. 683, 697 (1948), which codified title 18. 16 First, Congress modified the prohibition on Members’ providing compensated ‘‘services’’ in relation to agency

proceedings in which the government has an interest, in order to bar Members from providing ‘‘representational services,

as agent or attorney or otherwise.’’ Ethics Reform Act of 1989, Pub. L. No. 101–194, § 402(1), 103 Stat. 1716, 1748

(1989). The substituted language appears to have been intended to ‘‘[c]larify’’ the provision more than to make a substantive change. 135 Cong. Rec. S15956 (daily ed. Nov. 17, 1989); Id. at H9719 (daily ed. Dec. 11, 1989).

Second, after one hundred years of debate, Congress added ‘‘court’’ to the enumeration of decision-making

bodies for whose proceedings Members of Congress are prohibited from accepting compensation. Id., § 402(2),

103 Stat. 1748. 17 In 1986, Congress amended section 201(c) to provide for punishment for a public official who ‘‘corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person

or entity, in return for . . . being influenced in the performance of any official act.’’ 18 U.S.C. § 201(b)(2)(A) (1988),

as amended by Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. No. 99–646, § 46(c), 100

Stat. 3592, 3602 (1986).

Congress likewise modified the unlawful gratuity section to provide for punishment for a public official who,

‘‘otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands,

seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any

official act performed or to be performed by such official or person.’’ 18 U.S.C. § 201(c)(1)(B) (1988), as

Government Service has not, to date, been cited by the Committee as a basis for recommending

discipline of a Senate Member, officer, or employee, although the House has used violations of

this Code as a ground for discipline of its Members.

4. The 1962 Amendments to Federal Conflict-of-Interest and Bribery Laws

In 1962, Congress enacted a statute to strengthen, modernize, and integrate the corruption and

conflict-of-interest laws. Pub. L. No. 87–849, 76 Stat. 1119, 1121 (1962).

a. Conflict-of-Law Amendments

As part of this reform, Congress revised the old conflict-of-interest provision that traced from

1864 in a new section 203 of title 18. 15 Section 203 remains the primary criminal conflict-ofinterest statute applicable to Members of Congress today, although in 1989 Congress enacted

minor, but relevant, amendments to the section. 16

b. Bribery Amendments

Congress has also modernized the bribery provision originally enacted in 1853. In its 1962

overhaul of the corruption and conflict-of-interest laws, Congress brought the disparate bribery provisions that then applied to various categories of government officials ‘‘within the purview of one

section and ma[d]e uniform the proscribed acts of bribery, as well as the intent or purpose making

them unlawful.’’ S. Rep. No. 87–2213, 87th Cong., 2d Sess. 7 (1962), reprinted in 1962 U.S.

Code Cong. & Admin. News 3852, 3856. The new omnibus provision provided for punishment

for any public official, including a Member of Congress, who ‘‘directly or indirectly, corruptly

asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for

himself or for any other person or entity, in return for . . . being influenced in his performance

of any official act’’ and defined ‘‘official act’’ as ‘‘any decision or action on any question, matter,

cause, suit, proceeding or controversy, which may at any time be pending, or which may by law

be brought before any public official, in his official capacity, or in his place of trust or profit.’’

Pub. L. No. 87–849, 76 Stat. 1119, 1119–20 (amending 18 U.S.C. § 201(a), (c)(1)). In the 1962

law, Congress also enacted the lesser offense of receipt of an unlawful gratuity. The unlawful gratuity provision established a violation for any public official who ‘‘otherwise than as provided by

law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits,

seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any

official act performed or to be performed by him.’’ Id., 76 Stat. 1120 (amending 18 U.S.C. §

201(g)). With minor textual changes, the bribery provision remains in effect today. 17

CHAPTER 1 9

amended by Pub. L. No. 99–646, § 46(g), 100 Stat. 3603. ‘‘The changes [did] not substantively alter the provisions of 18 U.S.C. 201.’’ H.R. Rep. No. 99–797, at 25, reprinted in 1986 U.S. Code Cong. & Admin. News

6138, 6148. 18 1962 Senate Hearing, supra p. 89–90, at 9. 19 U.S. Congress. Senate. Committee on Rules and Administration. Financial or Business Interests of Officers and

Employees of the Senate. Hearings, 88th Congress, pursuant to S.Res. 212. Parts 1–27. Washington, U.S. Govt. Print.

Off., 1964. 2260 p. 20 Id.

c. A Renewed Call for a Code of Congressional Ethics and Procedures for Its Enforcement

Writing separately in the Senate Judiciary Committee report accompanying the 1962 amendments, Senator Kenneth Keating proposed an amendment to the bill to create a joint congressional

committee to draft a code of congressional ethics and to authorize the Senate Rules Committee

to give advisory opinions to Members on conflict-of-interest questions. Id. at 17–18, 1962 U.S.

Code Cong. & Admin. News at 3866. Keating intended the Rules Committee to function like the

typical grievance or ethics committees of bar associations, medical societies, and other professional

organizations. It would consider all matters arising in connection with legislative conflicts of interest and would issue public interpretative opinions for the guidance of Members either on request

or on its own initiative. In short, it would provide general guidelines for action as well as effective

machinery for resolving specific congressional conflict-of-interest problems. 18

In the end, Senator Keating withheld offering his amendments in order to facilitate the enactment of the bill during the Eighty-Seventh Congress. 108 Cong. Rec. 21988–89 (1962). Senator

Keating and Senator Javits both ‘‘pledge[d] . . . to come back and very early in the next session

begin the fight to add to the measure a code of ethics for Members of Congress.’’ Id. at 21989.

B. THE INVESTIGATION OF BOBBY BAKER AND THE

ESTABLISHMENT OF THE SELECT COMMITTEE ON

STANDARDS AND CONDUCT

1. The Bobby Baker Investigation

Momentum for reform grew after Robert G. (Bobby) Baker, Secretary to the Democratic Majority, resigned from his job in October 1963 following allegations that he had misused his official

position for personal, financial gain. For the next year and a half, the Senate Rules and Administration Committee held hearings to investigate the business interests and activities of Senate officials and employees (focused on Bobby Baker) in order to ascertain what, if any, conflicts of interest or other improprieties existed and whether any additional laws or regulations were needed. 19

The Senate recognized that serious allegations had been made against a former employee and that

it had no specific rules or regulations governing the duties and scope of activities of Members,

officers, and employees.

In its first report, the Rules Committee characterized many of Baker’s outside activities as

being in conflict with his official duties and made several recommendations, including adoption

of public financial disclosure rules and other guidelines for senatorial employees. 20

Subsequently, as part of its conclusion of the Baker case, the Rules Committee held additional

hearings on proposals advocating a code of ethics in conjunction with a pending pay raise, the

creation of a joint congressional ethics committee to write an ethics code, and the adoption of

various rules requiring public disclosure of personal finances by Senators and staff and the disclosure of ex-parte communications. Additions to the Senate rules - calling for public financial disclosure reports and more controls on staff involvement in Senate campaign funds - were then introduced to implement the Committee’s Baker investigation recommendations.

10 SENATE ETHICS MANUAL

21This recordkeeping proposal may have stemmed from evidence about the conduct of Representative John Byrnes,

which came to light during the Committee’s investigation of Baker’s dealings in the stock of the Mortgage Guaranty

Insurance Corporation (MGIC). MGIC had enlisted Representative Byrnes to persuade the Internal Revenue Service to

reverse a tax ruling unfavorable to the company. Following Representative Byrnes’ efforts, which included threatening

to introduce legislation to overturn the ruling, and subsequently doing so, the IRS issued a favorable ruling. About six

months later, Byrnes purchased MGIC stock on preferential terms, although he later sold it and gave the proceeds to

charity. Id. at 34. 22Amending Rule XXV of the Standing Rules of the Senate Relative to the Jurisdiction of the Committee on Rules

and Administration, S. Rep. No. 1147, 88th Cong., 2d Sess. 1 (1964). 23Congressional Record, v. 111, July 9, 1965, p. 16179.

The Rules Committee concluded that remedial action was necessary to make those who serve

the public ‘‘recognize that their office is a public trust and should not be compromised by private

interests.’’ Id. at 62. To this end, the Committee recommended the adoption of financial disclosure

rules, the development of guidelines for committees and staff, and the Executive branch’s consideration of public recordkeeping of congressional intervention on matters pending before agencies. 21

2. The Establishment of the Select Committee on Standards and Conduct

In July 1964, the Rules Committee reported Senate Resolution 338, 88th Congress, which

would have amended Senate Rule XXV to give the Rules Committee jurisdiction ‘‘to investigate

every alleged violation of the rules of the Senate, and to make appropriate findings of fact and

conclusions’’ and to ‘‘recommend appropriate disciplinary action as may be indicated by the particular circumstances of individual instances.’’ 22

The Senate took up S. Res. 338 first. Senator John Sherman Cooper, one of the members

of the Rules Committee who had been dissatisfied with the Baker investigation, introduced a substitute resolution, proposing the establishment of a permanent Select Committee on Standards and

Conduct to ‘‘investigate allegations of improper conduct which may reflect upon the Senate, violations of law, and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees

of the Senate,’’ id. at 16929 (text of resolution), and to make ‘‘recommendation[s] to the Senate

[of] appropriate disciplinary action.’’ Id. (Sen. Cooper).

A section of the Cooper substitute authorizing the Committee to investigate ‘‘allegations of

improper conduct’’ received particular attention. Senator Clifford Case stated his understanding

that under this section ‘‘the committee would be free to investigate anything which, in its judgment, seemed worthy, deserving, and requiring investigation from any source.’’ Id. at 16933. After

Senator Cooper confirmed this interpretation, Senator Case expressed his support for the substitute,

noting that ‘‘unlike the resolution in its original form, . . . the proposal would not be limited to

alleged violations of Senate rules, but it would take into account all improper conduct of any kind

whatsoever.’’ Id. The Senate agreed to the Cooper substitute and adopted S. Res. 338 by a vote

of 61 to 19 on July 24, 1964. Id. at 16938–39. With the creation of this Committee, an internal

disciplinary body was established in Congress for the first time on a continuing basis.

The six members of the new Committee were not appointed until a year later, July 9, 1965,

because of the Senate Leadership’s desire to wait until the Rules Committee had completed the

Baker investigation. 23 It was not until October 1965 that the Committee elected a chairman and

a vice chairman, appointed the first staff, and began developing standards of conduct for the Senate. The Committee’s initial efforts in this regard were interrupted by its investigation of Senator

Thomas Dodd. Following that investigation, the Committee returned to the development of ethics

rules, and on March 15, 1968, reported favorably Senate Resolution 266, 90th Congress, 114

Cong. Rec. 6670 (1968), which proposed a declaration of Senate policy and four specific rules

concerning ethical conduct.

In recommending the first written internal rules of ethics for the Senate, the Committee made

clear that it did not intend the specific rules that it was proposing to be the Senate’s exclusive

CHAPTER 1 11

source of behavioral standards. The proposed specific rules, which were set out in section two

of S. Res. 266, were preceded by a declaration of Senate policy in section one of the resolution:

Resolved, It is declared to be the policy of the Senate that—

(a) The ideal concept of public office, expressed by the words, ‘‘A public office is a

public trust,’’ signifies that the officer has been entrusted with public power by the people; that the officer holds this power in trust to be used only for their benefit and never

for the benefit of himself or of a few; and that the officer must never conduct his own

affairs so as to infringe on the public interest. All official conduct of Members of the

Senate should be guided by this paramount concept of public office.

(b) These rules, as written expression of certain standards of conduct, complement the

body of unwritten but generally accepted standards that continue to apply to the Senate.

114 Cong. Rec. 7406 (1968).

The 1968 Code of Conduct covered four areas: outside employment of officers and employees; the raising and permissible use of campaign funds; the political fund-raising activities of Senate staff; and annual financial disclosure by Members, officers, and designated employees of the

Senate and senatorial candidates. With the exceptions of gifts in excess of $50 and honoraria in

excess of $300, the information in the disclosure reports was to be kept confidential and not available to the public (since changed to require that statements be publicly available).

A select committee created to study the Senate committee system recommended in 1976 that

the functions of the Select Committee on Standards and Conduct should be placed in the Senate

Rules Committee. However, the Rules Committee rejected the idea and instead recommended a

newly constituted Ethics Committee to indicate to the public the seriousness with which the Senate

viewed congressional conduct. Thus, the permanent Select Committee on Ethics was created in

1977 to replace the Select Committee on Standards and Conduct.

On April 1, 1977, the Senate Code of Conduct was revised and amended, and the procedures

and duties of the Ethics Committee were further expanded and developed.

Title I of S. Res. 110, 95th Congress, the Official Conduct Amendments of 1977, included

amendments to the Senate Code of Conduct first adopted in 1968. Included were the first public

financial disclosure requirements for Members, officers, and employees of the Senate, as well as

the first limits on gifts, outside earnings, the franking privilege, the use of the Senate radio and

television studios, unofficial office accounts, lame-duck foreign travel, and discrimination in staff

employment.

Title II amended S. Res. 338, the 1964 resolution that created the first Senate Ethics Committee and constituted the basic charter of the newly created Select Committee on Ethics. It provided the Committee with the authority to issue regulations to implement the revised Code of Conduct and to issue interpretative rulings to clarify its meaning and applicability. It also: 1) preserved

for the Ethics Committee the discretion to initiate investigations; 2) set forth the procedures for

the receipt and processing of sworn complaints alleging violations of any rule, law, or regulation

within the Committee’s jurisdiction; 3) spelled out the requirement that an affirmative vote of four

Members of the Committee is necessary for any resolution, report, recommendation, advisory opinion or investigation; 4) required the Committee to adopt written rules for investigations; 5) provided for the disqualification of Committee Members in investigations; 6) stipulated that outside

counsel must be hired for investigations unless the Committee specifically decides not to use such

counsel; 7) clarified that no investigation could be made of any alleged violation which was not

considered a violation at the time it was alleged to have occurred; and 8) enumerated specific

sanctions that the Committee could recommend in calling upon the Senate to take disciplinary action.

The first years of the newly created Select Committee on Ethics were spent interpreting for

the Senate the provisions of these new rules. Consequently, on February 1, 1980, the Senate adoptVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00025 Fmt 5222 Sfmt 5222 SMANUAL.001 ETHICS1 PsN: ETHICS1
12 SENATE ETHICS MANUAL

24 U.S. Const. art. I, § 5, cl. 2.

25 S. Res. 338, § 2(a)(1), 88th Cong., 2d Sess. (1964). This authority was amended in 1977 to provide additional

authority for investigation of ‘‘violations of the Senate Code of Official Conduct.’’

26 Id., amended by S. Res. 110, 95th Cong., 1st Sess. (1977), § 2(a)(2); S. Rpt. 95–49.

27 United States Senate Election, Expulsion and Censure Cases From 1793 to 1990, S. Doc. 103–33, 103d Cong.

(1995).

ed S. Res. 109 which directed the Select Committee on Ethics to undertake within a year a comprehensive review of the Senate Code of Official Conduct and the provisions for its enforcement,

implementation, and investigation of improper conduct in the Senate.

During the course of its review, the Committee held hearings in November 1980 during which

academicians, Federal and State ethics officials, and Members of Congress testified. It sent questionnaires to Senators and consulted the Hastings Center Institute of Society, Ethics, and the Life

Sciences, which issued two reports.

Subsequently, the Ethics Reform Act of 1989 and the FY 1992 Legislative Branch Appropriations Act significantly amended the Senate Code of Conduct by changing the restrictions on the

acceptance of gifts and travel by Members, officers, and employees of the Senate; banning honoraria; and limiting the earnings of other income by Senators and designated employees.

The Senate Ethics process was again the subject of careful scrutiny in 1993, when, pursuant

to Senate Resolution 111 (103d Congress) creating the Senate Ethics Study Commission, hearings

were held in May and June 1993 concerned solely with possible improvements in the process.

In March 1994, the Commission issued its Report Recommending Revisions to the Procedures of

the Senate Select Committee on Ethics. The Commission’s principal recommendations were adopted by the Senate on November 5, 1999 with the passage of Senate Resolution 222 (see the discussion in Section D. below).

Also, in July 1995, the Senate passed a new Gifts Rule, S. Res. 158, effective January 1,

1996, which replaced Rule 35 of the Senate Code of Conduct, and which further changed the restrictions on the acceptance of gifts and travel by Members, officers, and employees of the Senate.

C. JURISDICTION OF THE COMMITTEE

Constitutional Self-Discipline

The United States Constitution confers on each House of Congress the power to punish and

expel its Members. Article I provides:

‘‘Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.’’ 24

Pursuant to this authority, in 1964, the Senate adopted Senate Resolution 338, which created

the Select Committee on Standards and Conduct, and delegated to it the authority to ‘‘receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees

of the Senate . . .’’ 25

In those situations where the violations are sufficiently serious to warrant sanctions, the Committee is authorized to recommend to the Senate by report or resolution appropriate disciplinary

action. 26

The Senate has disciplined Members for conduct that it has deemed unethical or improper,

regardless of whether it violated any particular law or Senate rule or regulation. 27 As it adopted

new rules governing Members’ conduct, the Senate has recognized that the rules did not ‘‘replace

CHAPTER 1 13

28 114 Cong. Rec. 6833 (1968) (comments of Senator John Stennis).

29 S. Rep. 2508, 83d Cong., 2d Sess. 20,22 (1954); H.R. Rep. No. 27, 90th Cong., 1st Sess. 24 (1969).

30 Joseph Story, Commentaries on the Constitution of the United States, Volume II, § 836, (Boston 1833, De Capo

Press Reprint Edition, 1970). 31 See, e.g., In re Chapman, 166 U.S. 661, 670 (1897) (in upholding the authority of the Senate to require by subpoena testimony of private persons in an investigation of Senatorial misconduct, the Court noted the expulsion of former

Senator Blount as an example of Congress’s broad authority: ‘‘It was not a statutable offense nor was it committed

in his official character, nor was it committed during the session of Congress, nor at the seat of government.’’); United

States v. Brewster, 408 U.S. 501 (1972) (in dicta, the Court observed, ‘‘The process of disciplining a Member of Congress . . . is not surrounded with the panoply of protective shields that are present in a criminal case. An accused Member is judged by no specifically articulated standards, and is at the mercy of an almost unbridled discretion of the charging body . . . from whose decisions there is no established right of review.’’). 32Report of the Select Committee to Study Censure Charges pursuant to S. Res. 301 and amendments, S. Rep.

2508, 83rd Cong., 2d Sess. 20, 22 (1954) (a resolution to censure the Senator from Wisconsin, Mr. McCarthy). 33 H.R. Rep. No. 27, 90th Cong., 1st Sess. 24 (1969).

34 110 Cong. Rec. 16,933, (1964).

35 Id.

that great body of unwritten but generally accepted standards that will, of course, continue in effect.’’ 28

Scope of The Authority

The Senate or House may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on

the institution as a whole. 29 In his historic work on the Constitution, Justice Joseph Story noted

in 1833 that Congress’ disciplinary authority for ‘‘expulsion and any other punishment’’ is apparently unqualified as to ‘‘the time, place or nature of the offense.’’ 30 Moreover, the Supreme Court

has consistently declared that the Senate has far-reaching discretion in disciplinary matters. 31

Precedent within both the House and Senate has reaffirmed this broad authority. In the censure

of Senator Joseph McCarthy, the Select Committee to Study the Censure Charges in the 83rd Congress reported:

‘‘It seems clear that if a Senator should be guilty of reprehensible conduct unconnected

with his official duties and position, but which conduct brings the Senate into disrepute,

the Senate has the power to censure.’’ 32

Additionally, in the report on Representative Adam Clayton Powell from the House Judiciary

Committee, which recommended that Powell be censured for misconduct, the House Committee

noted that the conduct for which punishment may be imposed is not limited to acts relating to

the Member’s official duties. 33

In proposing a permanent standing committee on ethics in the Senate, Senator John Sherman

Cooper expressly referred to the select committee that investigated the censure charges of Senator

Joseph McCarthy as a model—a committee that had unambiguously asserted its authority to investigate conduct ‘‘unconnected with [a Member’s] official duties and position.’’ Senator Cooper and

supporters of the resolution emphasized that the Select Committee was intended ‘‘to be free to

investigate anything which, in its judgment, seemed worthy, deserving, and requiring investigation’’ 34 and ‘‘would not be limited to alleged violations of Senate rules, but it would take into

account all improper conduct of any kind whatsoever.’’ 35

It appears that the intent of the Senate in adopting S. Res. 338 was to delegate to the Ethics

Committee the authority to investigate and make recommendations to the full Senate on misconduct of Members over which the institution has jurisdiction.

Senate Resolution 338 (88th Congress)

When the Select Committee on Standards and Conduct was created in 1964, it was authorized

to: (1) investigate allegations of improper conduct which may reflect upon the Senate; (2) investigate violations of laws and rules and regulations of the Senate relating to the conduct of MemVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00027 Fmt 5222 Sfmt 5222 SMANUAL.001 ETHICS1 PsN: ETHICS1
14 SENATE ETHICS MANUAL

bers, officers, and employees in their official duties; (3) recommend disciplinary action, when appropriate; (4) recommend additional Senate rules to insure proper standards of conduct; and issue

advisory opinions and interpretative rulings explaining and clarifying the application of any law,

rule, or regulation within its jurisdiction. The Select Committee on Ethics assumed this jurisdiction

as well as that of enforcing the Senate Code of Conduct, which was first created in 1968, and

substantially amended in 1977. S. Res. 338, which specifies the duties of the Select Committee

on Ethics and the process by which those duties are to be carried out, was amended substantially

by Senate Resolution 222 (106th Congress, November 5, 1999) discussed more fully in Section

D. below.

Other Responsibilities

Public Law 93–191 was enacted in 1973 to clarify the proper use of the franking privilege

by Members of Congress, and the Ethics Committee was authorized to provide assistance and

counsel to Senators in this area.

The Senate Select Committee on Intelligence was created in 1976, and the Ethics Committee

was given specific jurisdiction to investigate any unauthorized disclosure of intelligence information by a Member, officer, or employee of the Senate and to report to the Senate on any substantiated allegation. See, Senate Resolution 400, 94th Congress, Section 8.

In August 1977, with the enactment of Public Law 95–105, which amended the Foreign Gifts

and Decorations Act of 1966, the Committee was designated the ‘‘employing agency’’ for the Senate and authorized to issue regulations governing the acceptance by Senators and staff of gifts,

trips, and decorations from foreign governments.

In August 1979, the Committee was given the responsibility for administering the Senate financial disclosure requirements contained in the Ethics in Government Act of 1978, since amended

in 1989. Amendments to the Ethics in Government Act in 1989 named the Ethics Committee as

the ‘‘supervising ethics office’’ for purposes of several laws, including 5 United States Code 7353

(Gifts to Federal Employees) and 7351 (Gifts to Superiors).

The preamble to Senate Resolution 266, 90th Congress, 2d Session, and the Code of Ethics

for Government Service, H. Con. Res. 175, 85th Congress, 2d Session, also set forth general ethical principles for Members, officers, and employees of the Senate.

The Committee was authorized by section 308 (a) of the Government Employee Rights Act

of 1991, Title III of the Civil Rights Act of 1991, to review hearing board decisions in employment discrimination cases filed with the Office of Senate Fair Employment Practices. For alleged

conduct occurring on or after January 23, 1996, such cases are no longer filed with the Office

of Senate Fair Employment Practices, but are handled as prescribed in the Congressional Accountability Act of 1995, a remedial process which does not include Committee review. However, the

Committee retains jurisdiction over disciplinary cases arising out of alleged discrimination prohibited by Senate Rule 42.

D. OVERVIEW OF COMMITTEE PROCESS AND PROCEDURES

REGARDING THE CONDUCT OF INQUIRIES AND

INVESTIGATIONS

S. Res. 338, as amended by S. Res. 222 (106th Congress, 1st Session), specifies that

it is the duty of the Select Committee on Ethics to

(1) receive complaints and investigate allegations of improper conduct which may reflect

upon the Senate, violations of law, violations of the Senate Code of Official Conduct,

and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or emVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00028 Fmt 5222 Sfmt 5222 SMANUAL.001 ETHICS1 PsN: ETHICS1
CHAPTER 1 15

ployees of the Senate, and to make appropriate findings of fact and conclusions with respect thereto;

(2)(A) recommend to the Senate by report or resolution by a majority vote of the full

committee disciplinary action to be taken with respect to such violations which the Select

Committee shall determine, after according to the individual concerned due notice and

opportunity for a hearing, to have occurred;

(B) pursuant to subparagraph (A) recommending discipline, including--

(i) in the case of a Member, a recommendation to the Senate for expulsion, censure, payment of restitution, recommendation to a Member’s party conference regarding the Member’s seniority or positions of responsibility, or a combination of these; and

(ii) in the case of an officer or employee, dismissal, suspension, payment of restitution,

or a combination of these;

(3) [subject to a right of appeal to the full Senate], by a unanimous vote of 6 members,

order that a Member, officer, or employee be reprimanded or pay restitution, or both,

if the Select Committee determines, after according to the Member, officer, or employee

due notice and opportunity for hearing, that misconduct occurred warranting discipline

less serious than discipline by the full Senate:

(4) [if a violation is inadvertent, technical, or otherwise of a deminimis nature], issue

a public or private letter of admonition to a Member, officer, or employee, which shall

not be subject to appeal to the Senate . . .

The Committee’s Rules of Procedure provide the framework for the Committee’s investigation

of allegations of misconduct by Members, officers, or employees of the Senate (see Appendix C).

These Rules allow the Committee to act upon allegations of misconduct that are received in the

form of sworn or unsworn complaints filed with the Committee, as well as credible information

reported to the Committee indicating that a Member, officer, or employee may have violated the

Code of Official Conduct, a law, any rule or regulation relating to the conduct of individuals in

the performance of their duties, or engaged in improper conduct which may reflect on the Senate.

Such information may come from a variety of sources, including sworn complaints, anonymous

or informal complaints, information developed during a study or inquiry by the Committee or other

committees or subcommittees, information reported by the news media, or information obtained

from any individual, agency, or department of the executive branch. See Rule 2, Appendix C.

Supervision of the day to day activities of the Committee and its staff rests with the Chairman

(Majority party) and Vice Chairman (Minority party) of the Committee, acting jointly. Upon the

receipt of allegations of misconduct, a preliminary inquiry is commenced of such duration, scope,

and conduct as may be deemed appropriate, judgments which are normally made by the Chairman

and Vice Chairman, acting jointly. Such preliminary inquiry may include any inquiries, interviews,

sworn statements, depositions, or subpeonas deemed appropriate to obtain the information to make

any required determination. An opportunity to respond to the allegations or information may also

be provided to any known respondent (or his or her representative). The preliminary inquiry may

be conducted by staff counsel or by outside counsel. Periodic confidential status reports may be

made, and at the conclusion of a preliminary inquiry, a confidential report (oral or written) is made

to the Committee on findings, and recommendations as appropriate. As soon as practicable after

the final report a determination is made as to whether there is substantial credible evidence which

provides substantial cause for the Committee to conclude that a violation within the Committee’s

jurisdiction has occurred.

(A) If no such substantial credible evidence is found, the Committee must dismiss the

matter. Additionally, the Chairman and Vice Chairman acting jointly on behalf of the

Committee, may dismiss any matter which is determined to lack substantial merit. The

complainant is informed of such dismissals.

(B) If such substantial credible evidence is found, but the alleged violation is inadvertent,

technical, or otherwise of a de minimis nature, the matter may be disposed of by a public

16 SENATE ETHICS MANUAL

or private letter of admonition, which is not considered discipline and is not subject to

appeal to the Senate.

(C) If there is such substantial credible evidence and the matter cannot be disposed of

as de minimis, the Committee may initiate an ‘‘adjudicatory review’’ of the conduct upon

a vote of four of its members. Such review must be conducted by outside counsel, unless

the Committee decides to conduct the review using staff counsel.

The Committee must give written notice of its decision to conduct an adjudicatory review to

the respondent, no later than five working days after the Committee’s vote. This notice must include a statement of the nature of the possible violation, and a description of the evidence indicating that a possible violation occurred. The Committee may offer the respondent an opportunity

to present a statement or to respond to questions from members of the Committee, Committee

staff, or outside counsel. The Committee must also accord the respondent the opportunity for a

hearing (which may be public or private at the Committee’s discretion) before the Committee recommends disciplinary action to the Senate or before it imposes an order of restitution or reprimand

(not requiring discipline by the full Senate. See Rule 4.

Periodic confidential progress reports may be made, and upon completion of the adjudicative

review, counsel (outside or staff, as appropriate) must submit a confidential written report to the

Committee, detailing the factual findings of the adjudicatory review. Counsel may also recommend

disciplinary action, if appropriate. As soon a practicable following submission of counsel’s report,

the Committee must prepare and submit a report to the Senate, including a recommendation for

disciplinary action, if appropriate. Any recommendation or resolution concerning the adjudicative

review must be approved by the affirmative recorded vote of at least four members. This report

must be promptly forwarded to the Secretary of the Senate, and a copy provided to the complainant and the respondent; the full report and any recommendation must also be printed and made

public, unless not less than four members of the Committee vote that it should remain confidential.

See Rule 4.

At any time during a preliminary inquiry, adjudicatory review, or other proceeding, the Committee may issue subpoenas for testimony and the production of documents and tangible things.

The Committee Members, staff, outside counsel, or other persons designated by the Committee,

may conduct depositions. See Rule 6.

The Committee may conduct hearings during any preliminary inquiry, adjudicatory review, or

other proceeding. The Committee has the authority to subpoena the testimony of witnesses and

production of documents or other items.

If a hearing is designated as an adjudicatory hearing (either by a vote of not less than four

members of the Committee, or because the hearing is concerned with possible disciplinary action),

the respondent has the right to cross-examine witnesses, and may call witnesses in his or her behalf. The respondent may apply to the Committee for the issuance of subpoenas for the appearance

of witnesses or production of documents on his or her behalf. The Presiding Officer (either the

Chairman, or in his or her absence, the Vice Chairman) rules on the admissibility of testimony

or other evidence. All evidence that may be relevant and probative is admissible, unless privileged

under the Federal Rules of Evidence. See Rule 5.

The Committee’s Rules (See Rule 8) provide that any information or material in the possession of the Committee pertaining to illegal or improper conduct by a Member, officer, or employee, to any preliminary inquiry, adjudicative review, or other proceeding related to allegations

of such conduct, to the investigative techniques and procedures of the Committee, or to information or material so designated by the staff director or outside counsel, is Committee Sensitive, and

may not be divulged by the Committee, staff, or any person performing services for the Committee.

CHAPTER 1 17

Importantly, the Committee’s prior inquiries and investigations provide a further body of

‘‘common law’’ on the application of the Committee’s Rules of procedure to specific fact situations. While factual differences may distinguish any new situation, the Committee is guided by

what it has done in similar prior cases. Thus, the procedures used in earlier cases should be consulted for an understanding of the established practices of the Committee.

E. EDUCATIONAL AND ADVISORY ROLE OF THE COMMITTEE

Senate Resolution 110 (April 2, 1977) gives the Committee the authority to issue interpretative

rulings and advisory opinions regarding application of any law, rule, or regulations within the

Committee’s jurisdiction. See, Section 3(e) of the Resolution.

In large part, the Committee has historically relied upon the periodic public issuance of Interpretative Rulings (IR’s) to keep Senate Members, officers, and employees advised as to the application of the Code of Conduct. Those past Committee IR’s which continue to provide helpful guidance have been annotated and are attached to this Manual as Appendix A. Many of the Committee’s IR’s are no longer valid. Thus, earlier publications of the IR’s should not be relied on for

advice.

From time to time, the Committee has also issued advice in the form of ‘‘Dear Colleague’’

advisory letters covering a particular subject. Additionally, over the years, the Committee has

issued thousands of private letter rulings to Members, officers, and employees, providing advice

on the application of a law or rule to a specific set of facts. These diverse sources of Committee

advice are drawn together in this Manual.

The Committee considers its advisory function to be among its most important. Contact with

the Committee about the application of laws and rules to proposed conduct is welcomed and encouraged. The Committee’s advisory function is conducted in a confidential manner, although advice of general applicability may be publicly disseminated in a manner which protects confidentiality. The Committee’s aim is to preempt possible violations by being freely accessible to provide

prospective advice. This Manual is part of the Committee’s effort to eliminate potential infractions.

It is far easier to avoid a problem in advance, than to correct a problem after the fact. On a number of occasions, the Committee has had to advise Members, officers, and employees that past

conduct was not acceptable and should not be repeated, in situations where the difficulties could

have been easily avoided by getting advice in advance from the Committee. Routine or frequent

contact with the Committee for advice is encouraged.

Of course, the Committee will also continue to provide advice through Interpretative Rulings,

Dear Colleague letters, and private letter rulings on request from Senate Members, officers, and

employees. The Committee also offers periodic briefings on the Code of Conduct through the Secretary of the Senate’s office. At least quarterly, seminars on the Code of Official Conduct are

available to interested staffers, and seminars on Use of the Franking Privilege are separately offered. Likewise, seminars tailored for the use of office managers, committee staff, and paid interns

are offered. Additionally, the Committee is available at the convenience of any Senate office to

provide ‘‘in-office’’ briefings for Members or staff. Again, and perhaps most importantly, the

Committee is always available to Senate Members, officers, and employees through its staff to

provide telephonic advice and private letter rulings. Such telephone advice and private letter rulings are the mainstay of the Committee’s advisory function, and Members, officers, and employees

are encouraged to seek such advice or rulings in any situation.

F. SOURCES OF APPLICABLE STANDARDS OF CONDUCT

As discussed in C. above, the Committee’s role is prescribed by the Senate in furtherance

of the institution’s constitutional obligation of self-discipline. The standards which govern a Senate

18 SENATE ETHICS MANUAL

Member, officer, or employee’s conduct, and which provide the framework for institutional discipline, are drawn from a number of sources including federal statutes and Senate rules.

Both the official and personal conduct of Senate Members, officers, and employees are now

the subject of a substantial body of ethics-related rules and laws. This manual endeavors to provide

and discuss those specific written rules, statutes and, in at least one case, Constitutional provision

as they relate to the operation of a Senate office and to the conduct of individual Senate Members,

officers, and employees.

The Senate Code of Official Conduct contained in Senate Rules 34 through 43 provides very

specific standards of conduct on: Financial Disclosure, Gifts, Outside Earned Income and Honoraria, Conflict-of-Interest, Prohibited Unofficial Office Accounts, Foreign Travel, Use of the Mailing Frank and Radio and Television Studios, Political Fund Activity, Employment Discrimination,

and Constituent Service. Those Senate Rules comprising the Code of Official Conduct are within

the exclusive jurisdiction of the Senate Select Committee on Ethics. Application of each of these

Rules will be discussed in the Chapters which follow.

Additionally, Federal statutes also provide specific standards of conduct in such areas as: Conflict-of-Interest, Financial Disclosure, Outside Earned Income and Honoraria, Gift Acceptance and

Solicitation, Campaign Activities, Government Contracts, Foreign Travel and Gifts from Foreign

Governments, to name a few. Finally, the United States Constitution contains a prohibition on the

acceptance of Gifts or Emoluments from Foreign Governments except as permitted by statute.

Some Federal statutes provide for joint jurisdiction of the Ethics Committee and the Department

of Justice, others are enforced exclusively by the Department of Justice. See the Table at the end

of Appendix D for a listing of statutes and Rules which create overlapping or joint jurisdiction

by both the Senate Select Committee on Ethics and the Department of Justice or other Executive

Branch agency.

Complementing these written standards (i.e. rules and statutes) is a body of unwritten but

well-established norms of Senate behavior, violation of which may be deemed ‘‘improper conduct

reflecting upon the Senate.’’ In other instances the Committee, although not declaring conduct to

be ‘‘improper conduct reflecting upon the Senate’’ in violation of an unwritten standard, has found

that such conduct warranted public criticism, or has stated that it did not condone such conduct.

See Appendix E.

Finally, the Senate has enunciated certain general principles of public service which provide

guidance on desirable conduct. These principles are also set out in Appendix E.

(19)

Chapter 2: GIFTS

Introduction ......................................................................................................................... 21

The Gifts Rule ..................................................................................................................... 22

What is a Gift? ..................................................................................................................... 25

Who is Restricted? ............................................................................................................... 25

What Gifts are Acceptable? ................................................................................................ 26

Reporting of Gifts ......................................................................................................... 27

Gifts Paid for or Returned ........................................................................................... 27

Perishable Goods .......................................................................................................... 27

Political Contributions or Attendance at a Fundraiser ............................................. 27

Gifts from Relatives ..................................................................................................... 28

Gifts Based on Personal Friendship ........................................................................... 28

Contributions or Payments to a Legal Expense Trust Fund .................................... 30

Gifts from Other Members, Officers, or Employees .................................................. 31

Food, Refreshments, Lodging, and Other Benefits Related to Outside Activity ..... 31

Pension and Other Benefits ........................................................................................ 33

Information Materials .................................................................................................. 33

Awards or Prizes .......................................................................................................... 33

Honorary Degrees and Other Awards ........................................................................ 34

Donations of Home State Products ............................................................................. 34

Training ........................................................................................................................ 35

Bequests, Inheritances, and Other Transfers at Death ............................................ 36

Anything Paid for by the Federal, State, or Local Government ............................... 36

Personal Hospitality ..................................................................................................... 37

Free Attendance at a Widely Attended Event ........................................................... 38

Free Attendance at a Charity Event .......................................................................... 39

Sporting Events ............................................................................................................ 39

Opportunities and Benefits Available to a Wide Group ........................................... 39

Plaques, Trophies, or Other Commemorative Items ................................................. 40

Items for Which a Waiver is Granted by the Ethics Committee ............................. 41

Food or Refreshments Other than as Part of a Meal ................................................ 42

Items of Little Intrinsic Value .................................................................................... 42

General Guidelines ....................................................................................................... 42

Who is a ‘‘Lobbyist’’ for Purposes of the Gifts Rule ................................................... 43

National Political Conventions ....................................................................................

48 ...................................................................................................................................

Travel ................................................................................................................................... 44

Necessary Expenses ..................................................................................................... 46

Time Limits .................................................................................................................. 47

Who May Pay ............................................................................................................... 48

Who May Accompany ................................................................................................... 49

Gifts and Travel from Foreign Governments and Organizations ............................ 50

‘‘Lame Duck’’ Travel ..................................................................................................... 52

Frequent Flyer Miles ................................................................................................... 52

Travel Summary ........................................................................................................... 53

Other Prohibited Gifts from Lobbyists, Lobbying Firms, and Foreign Agents .............. 54

Determining the Source of a Gift ....................................................................................... 55

Page

20

Summary of Gifts Provisions Related to Senate Spouses ................................................ 56

Solicitation of Gifts .............................................................................................................. 57

Bribery and Illegal Gratuity ............................................................................................... 58

Valuation of Certain Gifts .................................................................................................. 59

Tickets to Fundraisers ................................................................................................. 59

Season Passes ............................................................................................................... 59

Tickets in a Performance Arena ................................................................................. 59

Club Memberships ....................................................................................................... 60

Private Air Travel ........................................................................................................ 60

Group Gifts ................................................................................................................... 60

Taxes as Part of the Value of a Gift ........................................................................... 62

Financial Disclosure of Gifts .............................................................................................. 62

21

36 SPECIAL SUBCOMM. ON THE ESTABLISHMENT OF A COMM’N ON ETHICS IN GOV’T, SENATE

COMM. ON LABOR AND PUBLIC WELFARE, ETHICAL STANDARDS IN GOVERNMENT, 82d Cong., 1st Sess.

23 (Comm. Print 1951). 37Code of Ethics for Government Service ¶ 10, H. Con. Res. 175, 85th Cong., 2d Sess., 72 Stat., pt. 2, B 12

(1958). 38 Id. ¶ 5. See also 135 Cong. Rec. H8764 (daily ed. Nov. 16, 1989) (debate on Ethics Reform Act of 1989, quoting

Paul Volcker, Chairman of the National Commission on the Public Service); United States v. Podell, 436 F. Supp. 1039,

1042 (S.D.N.Y. 1977), aff’d, 572 F.2d 31 (2d Cir. 1978).

Chapter 2

GIFTS

Rules 35 and 39

INTRODUCTION

[W]hen I once asked a policeman how some of his colleagues got started on the downward

path, he replied, ‘‘It generally began with a cigar.’’

—Senator Paul H. Douglas,

Ethics in Government, at 44 (1952)

In a 1951 report entitled Ethical Standards in Government, a Senate subcommittee headed by

Senator Paul H. Douglas highlighted some of the concerns that arise when public officials receive

gifts:

What is it proper to offer public officials, and what is it proper for them to receive?

A cigar, a box of candy, a modest lunch (usually to continue discussing unfinished business)? Is any one of these improper? It is difficult to believe so. They are usually a courteous gesture, an expression of good will, or a simple convenience, symbolic rather than

intrinsically significant. Normally they are not taken seriously by the giver nor do they

mean very much to the receiver. At the point at which they do begin to mean something,

however, do they not become improper? Even small gratuities can be significant if they

are repeated and come to be expected. . .

Expensive gifts, lavish or frequent entertainment, paying hotel or travel costs, valuable

services, inside advice as to investments, discounts and allowances in purchasing are in

an entirely different category. They are clearly improper. . . The difficulty comes in

drawing the line between the innocent or proper and that which is designing or improper.

At the moment a doubt arises as to propriety, the line should be drawn. 36

The Senate has long recognized that ‘‘public office is a public trust.’’ 37 Senators hold office

to represent the interests of their constituents and the public at large. Members are assisted in these

efforts by officers and employees who are paid from United States Treasury funds. The public

has a right to expect Members, officers, and employees to exercise impartial judgment in performing their duties. 38 The receipt of gifts, entertainment, or favors from certain persons or interests may interfere with this impartial judgment, or may create an appearance of impropriety that

may undermine the public’s faith in government.

Thus, Members and employees of the Senate should always exercise discretion concerning the

acceptance of gifts, favors, or entertainment from persons who are not relatives. They should be

particularly sensitive to the source and value of a gift, the frequency of gifts from one source,

22 SENATE ETHICS MANUAL

39 Id.

40Code of Ethics for Government Service, supra note 2, ¶ 5. 41 Senate Code of Official Conduct, Report of the Special Committee on Official Conduct, United States Senate,

to accompany S. Res. 110, S. Rep. No. 95–49, 95th Cong., 1st Sess. (1977).

and possible motives of the donor. 39 A gift of cash or a cash equivalent (for example stocks or

bonds) is not an acceptable gift, unless it is from a relative or is part of an inheritance. Members

and employees should never ‘‘discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not,’’ and never accept favors or benefits for themselves or their families ‘‘under circumstances which might be construed by reasonable persons as

influencing the performance of [their] governmental duties.’’ 40 One should always be wary of accepting any gift, favor, or benefit that may not have been offered ‘‘but for’’ one’s position in

the Senate.

In addition to these general principles, detailed Senate rules regulate the gifts that a Member,

officer, or employee may accept. Under Rule 35, a Member, officer, or employee of the Senate

may generally not accept any one gift valued at $50 or more, or gifts with an aggregate value

of $100 or more, from any one source in a calendar year. Definitions and exceptions are set forth

in the rule.

THE GIFTS RULE

A limit on the amount and/or source of acceptable gifts for Senators and their staffs has been

in effect since 1977, when the Special Committee on Official Conduct, 95th Congress, proposed

the first Code of Official Conduct for Members, officers, and employees of the United States Senate. The report issued by that committee provides a useful source of legislative history on the

original intent of the Gifts Rule, which has been amended on several occasions since 1977. 41 The

original Rule limited gifts from those with a ‘‘direct interest’’ in legislation to $100. Later, a $300

limit on gifts from all other sources was added. Thereafter, a uniform $250 annual limit was

placed on all sources of gifts.

Most recently, the Senate Gifts Rule was revised by Senate Resolution 158, 104th Congress,

effective January 1, 1996. A 1994 Report of the Senate Committee on Governmental Affairs (S.

Rpt. No. 103–255, 103d Cong., 2d Sess.) offers insight into the purposes behind changes to the

Rule effectuated by Senate Resolution 158. The current Rule places significant new restrictions

on the ability of Senate Members, officers, and employees to accept gifts.

Senate Rule 35.1(a) sets forth the basic rule on accepting gifts. It states:

(1) No Member, officer, or employee of the Senate shall knowingly accept a gift except

as provided in this rule.

(2) A Member, officer, or employee may accept a gift (other than cash or cash equivalent) which the Member, officer, or employee reasonably and in good faith believes to

have a value of less than $50, and a cumulative value from one source during a calendar

year of less than $100. No gift with a value below $10 shall count toward the $100 annual limit. No formal recordkeeping is required by this paragraph, but a Member, officer, or employee shall make a good faith effort to comply with this paragraph.

The figure of $50 (which is actually a dollar limit of $49.99) applies to each gift received,

unless the gift falls under an exception. The figure of $100 (which is actually a dollar limit of

$99.99) applies to the aggregate value of all non-exempt gifts received from a single source during

a calendar year. Thus, the value of all non-exempt gifts from a single source in a calendar year

must be tallied. Any gift worth less than $10 is excluded under Rule 35.1(a)(2) and does not count

towards the $99.99 total. Once the tally reaches $99.99, all further non-exempt gifts from that

source in that year must be declined.

CHAPTER 2 23

Example 1. Over the course of one year, company Z offers Senator B the following gifts:

in January, theater tickets worth $45; in April, a paperweight worth $8.50; in September,

a bottle of wine worth $40; and in December, a crystal vase worth $35. The paperweight

does not count towards the $100 aggregate because it is worth less than $10. All the

other gifts count. If the Senator accepts the theater tickets and the wine, he must return

the crystal vase to avoid exceeding the gift limit.

Section 1(c)(1) excepts from the restrictions of the Rule ‘‘anything for which the Member,

officer, or employee pays the market value, or does not use and promptly returns to the donor.’’

Thus, a Member, officer, or employee may rectify the inadvertent receipt of an impermissible gift

by promptly returning it or reimbursing the donor for the full, fair market retail value. Where a

Member, officer, or employee exercises dominion over or control of a gift, the gift is deemed

to be ‘‘accepted’’ and the value of the gift is attributed to the Member, officer, or employee, even

though the gift may not be used personally by the Member, officer, or employee (e.g. a ticket

is taken by a staffer, but subssequently given to a friend). Therefore, care should be taken that

any gift over which control is exercised has a value within the Gifts Rule limit.

Generally, when multiple items, each individually worth less that $50, are offered simultaneously to any individual, e.g. a ‘‘goody bag,’’ the ‘‘gift’’ being offered is deemed to be the aggregate of all the items. Also, as a general rule, a Member, officer, or employee may not ‘‘buydown’’ the value of a gift to bring it within the dollar limitations of the Gifts Rule.

The Committee has determined, however, that with respect to multiple item gifts where some

of the items are worth less than $50, and are divisible by nature (such as tickets, bottles of wine,

etc.), Members, officers, and employees may either accept one proffered item worth less than $50

and purchase the others, or accept one such item and decline the others. This policy merely permits a Member, officer, or employee to take a gift that would have been acceptable under the

Gifts Rule had it been offered by itself. For example, a staffer who is offered two $40 tickets

to a basketball game could accept one ticket, because it would be an acceptable gift if offered

by itself; a staffer who is offered two $55 tickets to a football game could not accept either ticket,

because the value of each ticket exceeds $49.99, nor may he buy down the value of the single

ticket by contributing $6 towards its cost.

However, with respect to all other gifts, such as meals and single items that are not naturally

divisible, a Member, officer, or employee may not ‘‘buy-down’’ the value of the gift in order

to bring it within the Gifts Rule limits. For example, a staffer may not chip in $6 toward a $55

meal that is being paid for by an individual (other than a ‘‘relative’’ or ‘‘personal friend’’) as

hereinafter defined and thereby bring the meal within the $49.99 limit. With respect to meals, it

should be noted that a meal is a single item whose value consists of all of the items consumed

during the meal (i.e., appetizers, main course, drinks, wine, and dessert). For example, a staffer

may not bring the value of a meal under $50 by paying for a bottle of wine. (On the other hand,

a staffer who contributes to the total cost of a meal with a group by paying for the wine, where

the cost of the wine represents the staffer’s proportionate share of the total meal, has not received

a gift at all because the staffer has paid for his share of the meal.)

Example 2. Staffer A is invited to dinner by two representatives of a trade organization.

The total bill for the meal is $165, with the cost of the staffer’s meal being $55. The

staffer may not pay for the wine, which cost $20, and allow the two trade organization

representatives to pay the remaining $35 cost of his meal as a gift. On the other hand,

the staffer could pay his proportionate share of the meal (i.e. $55).

Example 3. Lobbyist B walks into a Senate office and offers the scheduler two tickets

to a theater performance, each ticket with a face value of $45. The scheduler may accept

one ticket and decline the other, or accept one ticket and pay $45 for the second.

The Committee ruled in 1978 (Interpretative Ruling 94) that a Senate Member, officer, or employee should not repeatedly accept from the same donor small gifts otherwise permitted by the

Rule. The Committee also has previously concluded, in 1987, that where a gift is going to a Senate

24 SENATE ETHICS MANUAL

office, it may, depending upon the circumstances, be treated as a single gift to the supervising

Senator. For example, in a situation where an entity outside the Senate wanted to provide a Tshirt to each member of a Senator’s softball team along with bats and balls, the Committee concluded this would be a gift to the Senate office and, therefore, a single gift to the Senator rather

than a gift to each individual team member.

This ruling stands in contrast with the usual situations noted above where a number of items,

by nature divisible (tickets, bottles, etc.), are delivered to an office for use by the Senator or staff.

For example, where an individual delivers several tickets to an entertainment event to a Senate

office and indicates that the tickets are for use by members of the staff, the tickets are treated

as gifts to each individual staffer who uses them, rather than as a single gift to the Senator. However, where several such tickets are presented to a Senate office without an attempt to designate

or specify that the items are for use by members of the staff, the items may be considered a single

gift to the Member. Thus, for example, if a private college sends five college basketball tickets

valued at $20 a piece to a Senate office with the notation that the tickets are for the Senator’s

use, all five tickets will be treated as a gift to the Senator. In that case, the Member may keep

two of the tickets for her use and either pay for the remaining tickets or return them to the college.

A gift of ‘‘food’’ poses unique issues. The Committee has long distinguished the provision

of ‘‘food’’ from the sharing of a ‘‘meal’’. This distinction has been based upon the notion that

a ‘‘meal’’ contemplates that the recipient enjoys a dining experience at a restaurant or other establishment in the company of the person providing the fare. Thus, where an individual invites a

group of employees in a Senate office to dine with her in a restaurant, the result is a gift to each

employee who shares the meal, valued at what the employee eats and drinks. Therefore, if an individual invites Senator X’s office staff of ten to dinner at a D.C. restaurant, and each meal costs

$12, each employee has received a gift of $12 (which is within the gifts limit of $49.99).

However, ‘‘food’’ sent to a Senate office for consumption by a group of the office’s employees is one gift to the Senator, valued at the total fair market retail value of the food. Thus, if

a company sends six $10 pizzas to Senator X’s office to feed ten of his staffers, Senator X has

received a gift valued at $60, and may not accept it under current gift limits. Under this ruling,

the fact that the ‘‘food’’ might be eaten by ten staffers does not convert the gift of ‘‘food’’ to

the Senator into ten individual gifts of a ‘‘meal’’ to the staffers. Nor would the gift of the ‘‘food’’

escape the dollar restrictions of the Gifts rule simply because no individual staffer consumed more

than $9.99 or $49.99 worth of food. At least one purpose served by the ‘‘meal’’ versus ‘‘food’’

distinction is to preclude the possibility of a person regularly supplying a Senate office with food

items (including frozen dinners, pizzas, canned goods, snacks, and other consumables) so long as

no individual staffer ever ate more than $9.99 worth of the food at any one time. The Committee

has seen fit to avoid this possible result by considering ‘‘food’’ given to a Senate office as a gift

to the supervising Senator valued at its total cost. (See also the discussion of valuation of meals

and food in section on ‘‘Valuation of Certain Gifts’’ in this chapter).

The Committee has also ruled that even when the provider accompanies food delivered to a

Senate office and shares it with staffers, if it is consumed in Senate space (other than the cafeterias

or food courts), it remains a gift of ‘‘food’’ to the supervising Senator valued at the total fair

market value of all the food. Thus, individuals may continue to purchase staff meals at Senate

cafeterias and establishments outside the Senate, but food delivered to Senate offices for consumption in the Senate will be treated as a gift to the supervising Member of the total value of all

food provided, even when the provider of the food is present when the food is consumed by staff.

Finally, this result may not be avoided by having the food ‘‘divided’’ into separate packages labeled with the names of individual staff members prior to delivery to a Senate office.

In addition, it should be noted that even if a gift of food sent to a Senate office or to a Senate

committee complies with the dollar limits of the Gifts rule (i.e., has a value of less than $50),

CHAPTER 2 25

42 See Interpretative Ruling No. 140 (May 25, 1978), Appendix A. Historically, the Committee has from time to

time published collections of its Interpretative Rulings (See, for example, S. Prt. 103–21). Interpretative Rulings are

the non-confidential versions of private letter rulings, issued by the Committee in response to specific requests for advice. In this Manual, these will be referred to hereinafter by Interpretative Ruling (IR) numbers and original dates of

issuance. Each Interpretative Ruling referred to in this Manual is reprinted in Appendix A for easy reference. Because

the Interpretative Rulings date from 1977 and Senate Rules have changed significantly over the years since, each Interpretative Ruling reprinted in Appendix A has been annotated to explain how the Ruling applies under current Rules.

Many of the early Rulings were no longer valid. Thus, earlier printings of the Committee’s Interpretative Rulings should

NOT be relied upon for advice. Instead, the annotated Rulings reprinted in Appendix A, and the text of this Manual,

should be referred to for guidance. 43 See Interpretative Ruling No. 345 (Feb. 23, 1981).

staffers are consistently advised that they should not accept such gifts when the person sending

the food has a direct interest in particular legislation that the staff is working on at the time. In

other words, if staffers are staying late at the office working on a particular piece of legislation,

they should not accept pizzas sent in by an organization that has a direct interest in that piece

of legislation, even if the total value of the pizzas is less than $50, since acceptance of such gifts

under these circumstances may implicate the bribery and illegal gratuities statute, which prohibits

acceptance of gifts ‘‘for or because of’’ an official act.

WHAT IS A GIFT?

The word ‘‘gift’’ is defined broadly and includes any ‘‘item having monetary value.’’ Specifically, paragraph 2(b)(1) of the Rule states:

[T]he term ‘‘gift’’ means any gratuity, favor, discount, entertainment, hospitality, loan,

forbearance, or other item having monetary value. The term includes gifts of services,

training, transportation, lodging, and meals, whether provided in kind, by purchase of a

ticket, payment in advance, or reimbursement after the expense has been incurred.

WHO IS RESTRICTED?

By its terms, Rule 35 covers current Members, officers, and employees of the Senate (¶

1(a)(1) and (2)). Unlike the previous Rule 35, spouses and dependents are not separately subject

to the gift limitations. Rather, under the current Rule, a gift to a family member (or any other

individual) is considered a gift to the Member, officer, or employee only if it is given with the

knowledge and acquiescence of the Member, officer, or employee and the Member, officer, or

employee has reason to believe the gift was given because of the official position of the Member,

officer, or employee. The Rule does not restrict anyone else, such as candidates, or future or

former Members or employees. In addition, the Committee has determined that the Vice President,

although a constitutional officer with the duty of presiding over the Senate, is not a Member, officer, or employee of the Senate as those terms are used in the Code of Official Conduct. 42 However, any employee of the Vice President whose salary is disbursed by the Secretary of the Senate

is fully subject to the Senate Code of Official Conduct.

Example 4. Senator-elect A appears before a home-state business group in December,

prior to her swearing-in in January, and is presented with a wristwatch. A may accept

the watch, regardless of its value, because she is not yet covered by the Senate Gifts

Rule. 43

WHAT GIFTS ARE ACCEPTABLE?

The Gifts Rule contains 23 exceptions. The following gifts are expressly excluded from the

Rule’s limitations:

26 SENATE ETHICS MANUAL

(1) gifts for which the recipient pays the market value, or does not use and promptly returns;

(2) political contributions reported under the law, or attendance at a fundraising event sponsored by a political organization;

(3) gifts from relatives;

(4) anything, including personal hospitality, provided by an individual on the basis of a personal friendship unless the Member, officer, or employee has reason to believe that, under the

circumstances, the gift was provided because of the official position of the Member, officer, or

employee and not because of the personal friendship (see ‘‘Personal Friendship’’ Section for additional criteria);

(5) contributions or payments to an approved legal expense trust fund;

(6) gifts from another Member, officer, or employee of the Senate or House;

(7) food, refreshments, lodging, and other benefits that result from the outside business or employment (or other activities not connected with official duties) of the Member, officer, or employee, or spouse thereof that are customarily provided and that are not offered or enhanced by

the official position of the Member, officer, or employee; that are customarily provided by a prospective employer in connection with bona fide employment discussions; or that are provided by

a political organization in connection with a fundraising or campaign event sponsored by the organization;

(8) pension and other benefits resulting from continued participation in an employee welfare

and benefits plan maintained by a former employer;

(9) informational materials, such as books, articles, periodicals, audio or videotapes, sent to

the office;

(10) awards or prizes won in contests open to the public;

(11) bona fide nonmonetary awards (including honorary degrees) presented in recognition of

public service, and associated food, refreshments, and entertainment provided in the presentation

of such degrees and awards;

(12) donations of products from the home State which are intended primarily for promotional

purposes (display or distribution) and are of minimal value to any individual recipient;

(13) training, including food and refreshments furnished to all attendees as an integral part

of the training, in the interest of the Senate;

(14) bequests, inheritances, and other transfers at death;

(15) any item whose receipt is authorized by the Foreign Gifts and Decorations Act, the Mutual Educational and Cultural Exchange Act, or any other statute;

(16) anything paid for by Federal, State, or local government, or secured by the Government

under a Government contract;

(17) personal hospitality, other than from a registered lobbyist or agent of a foreign principal;

(18) free attendance at a widely attended event that is officially related to Senate duties or

at a widely attended charity event;

(19) opportunities and benefits which are:

(a) available to the public or to a class consisting of all Federal employees;

(b) offered to members of a group or class in which membership is unrelated to congressional employment;

(c) offered to members of an organization, such as an employees’ association or congressional credit union, in which membership is related to congressional employment and similar

CHAPTER 2 27

44 S. Rep. No. 95–49, supra note 6, at 36.

opportunities are available to large segments of the public through organizations of similar

size;

(d) offered to any group or class that is not defined in a manner that specifically discriminates among Government employees on the basis of branch of Government or type of responsibility, or on a basis that favors those of higher rank or rate of pay;

(e) commercial loans from banks or other financial institutions on terms generally available to the public;

(f) reduced membership or other fees for participation in organization activities offered

to all Government employees by professional organizations;

(20) a plaque, trophy, or other item that is substantially commemorative in nature and which

is intended solely for presentation;

(21) in an unusual case, anything for which a waiver is granted by the Committee;

(22) food or refreshments of a nominal value offered other than as part of a meal;

(23) an item of little intrinsic value such as a greeting card, baseball cap, or T-shirt.

Reporting of Gifts

While the above noted exceptions to the Rule permit the acceptance of certain gifts, you

should also be aware that the other provisions of law and the Senate Code of Official Conduct

require the public disclosure of certain gifts which are accepted. These disclosure requirements

will be discussed in the detail sections which follow.

Gifts Paid for or Returned

This exception to the restrictions of the Gifts Rule allows a Member, officer, or employee

who inadvertently receives a gift whose value is over the dollar limit either to pay the donor the

market value of the gift, or to return it to the donor without using it.

Disposition of Perishable Goods

Section 1(f) provides that if it is not practicable to return a tangible item to the donor because

it is perishable (food or flowers, for example), the item may be given to an appropriate charity

or discarded. The Committee has determined, however, that in those instances where it is impractical to transport a perishable item to a charity, the item may be placed in the reception area or

other common area where it may be shared by constituents and other visitors to the office.

Political Contributions or Attendance at a Fundraiser

The first (1977) Senate Gifts Rule’s exception for any political contribution lawfully made

was devised to complement the ban on converting campaign funds to personal use (now set forth

in Rule 38.2). The Nelson Report explained: ‘‘If a ‘‘contribution’’ does not conform to the strictures of the Federal Election Campaign Act, it is a gift rather than a contribution, and must be

treated as such for the purposes of this Rule and disclosed, if in excess of [the financial disclosure

threshold].’’ 44 The current Gifts Rule (section 1(c)(2)) continues this exception for contributions

lawfully made under the Federal Election Campaign Act.

Additionally, prior to S. Res. 158 (which became effective January 1, 1996), where there was

no conflict of interest, Members, officers, or employees have been candidates for state or local

office, and have accepted campaign contributions lawfully made under applicable state or local

campaign finance laws. Acceptance of such state or locally regulated campaign contributions has

historically been viewed as consistent with the Senate Gifts Rule. The Committee has concluded

that this historical treatment of state or local campaign contributions is consistent with the current

28 SENATE ETHICS MANUAL

45 S. Rep. No. 95–49 at 34.

46 5 U.S.C. app. 6, § 109(16).

Gifts Rule as well. Thus, Senate Members or employees who become candidates for state or local

office may accept campaign contributions in accordance with state or local laws, as long as there

is no conflict of interest with respect to Senate duties.

Section 1(c)(2) of the Gifts Rule also allows a Member, officer, or employee to accept ‘‘attendance’’ at a fundraiser sponsored by a political organization described in section 527(e) of the

Internal Revenue Code of 1986. ‘‘Attendance’’ includes the provision of food, refreshments, entertainment, and local transportation in connection with the campaign event. Under this exception,

a Senate Member, officer, or employee may accept a ticket to a campaign fundraiser from sources

other than the sponsor of the fundraising event, as well as from the sponsor. Transportation other

than local, lodging, or food which is not an integral part of the campaign fund raiser could not

be accepted under this section. While acceptance of ‘‘free attendance’’ from a source other than

the sponsor is permitted under section 1(c)(2), only a sponsoring political organization may pay

other (i.e. non-local transportation, lodging, and food) expenses in connection with attendance at

a fundraiser or campaign event under section 1(c)(7)(C), as discussed later in this chapter.

Under section 1(c)(2), a Senate Member, officer, or employee may accept free attendance at

a campaign fundraiser sponsored by a political organization where the event is held at a sky or

luxury box or other similarly discrete, segregated seating or viewing area at a performance arena.

Gifts from Relatives

The Gifts Rule exempts all gifts from relatives, regardless of value (¶ 1(b)(1)). The Nelson

Committee, in explaining the first Senate Gifts Rule, stated that it ‘‘exempts gifts from relatives

because of the presumption that when a Member, officer, or employee receives a gift from a relative, it is because of the familial relationship and not because of the position occupied by the

Member, officer, or employee.’’ 45 Rule 35.1(c)(3) defines the term ‘‘relative’’ by reference to title

I of the Ethics in Government Act of 1978 (‘‘EIGA,’’ the financial disclosure statute). That law

contains the following definition:

‘‘[R]elative’’ means an individual who is related . . . as father, mother, son, daughter,

brother, sister, uncle, aunt, great aunt, great uncle, first cousin, nephew, niece, husband,

wife, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law,

son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson,

stepdaughter, stepbrother, stepsister, half brother, half sister, or who is the grandfather

or grandmother of the spouse of the . . . individual and shall be deemed to include the

fiance or fiancee of the . . . individual. 46

Note that this definition includes various in-laws, as well as fiances. Engagement rings and other

tokens exchanged by engaged couples are thus exempt from the gift limit. Also see the discussion

of gifts based on personal friendship immediately below.

Gifts Based on Personal Friendship

This exception to the restrictions of Rule 35 exempts from the $49.99 single gift/$99.99 aggregate limits:

Anything provided by an individual on the basis of a personal friendship unless the

Member, officer, or employee has reason to believe that, under the circumstances, the

gift was provided because of the official position of the Member, officer, or employee

and not because of the personal friendship.

Rule 35.1(c)(4)(A). The Rule further provides that:

‘‘(B) In determining whether a gift is provided on the basis of personal friendship, the

Member, officer, or employee shall consider the circumstances under which the gift was

offered, such as:

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47Rule 35.1(e).

48 A Member, officer, or employee may accept personal hospitality from a lobbyist or foreign agent as a gift of

personal friendship, up to $250. However, a Member, officer, or employee may not use the personal hospitality exception, paragraph 1(b)(17), to accept personal hospitality from a friend who is a lobbyist or foreign agent. 49 See discussion of Waivers later in this chapter; see also Interpretative Ruling No. 439 (June 18, 1990).

(i) The history of the relationship between the individual giving the gift and the recipient

of the gift, including any previous exchange of gifts between such individuals.

(ii) Whether to the actual knowledge of the Member, officer, or employee the individual

who gave the gift personally paid for the gift or sought a tax deduction or business reimbursement for the gift.

(iii) Whether to the actual knowledge of the Member, officer, or employee the individual

who gave the gift also at the same time gave the same or similar gifts to other Members,

officers, or employees.

Thus, gifts motivated solely by personal friendship between the giver and the Member,

officer, or employee are permissible. However, such gifts may not be of a value greater

than $250, unless the recipient receives approval from the Committee. 47 This exception

would apply to gifts from any individual, including a lobbyist, who was making a gift

on the basis of personal friendship. 48 Where the gift giver does not personally pay for

the gift, or takes a tax deduction, or gives similar gifts to others in the Senate, or seeks

reimbursement, the gift is unlikely to come within the personal friendship exception.

Senators and staffers must also be careful that gifts from personal friends, even though they

may meet the tests under Rule 35.1(c)(4), do not run afoul of other restrictions on the acceptance

of gifts. For example, acceptance of a gift that, to his or her knowledge, is given to a Member,

officer, or employee in appreciation or gratitude for his or her official action is an illegal gratuity.

See Discussion of Bribery and Illegal Gratuity Statutes, infra at p. 42. Even in the absence of

criminal intent, Senators must also be careful to ensure that gifts, including those from personal

friends, do not raise issues of improper linkage to their official position or actions. The rule does

not similarly exempt gifts given because of a significant, personal, dating relationship (short of

a formal engagement), but the Committee has granted a waiver which generally (with important

limitations) permits a Member, officer, or employee to accept gifts from an individual with whom

the Member, officer, or employee enjoys a significant, personal, dating relationship. 49 Since January 1, 1996, many of the gifts permitted by the Committee’s 1990 ‘‘significant other’’ ruling, may

now also be permitted by the exception for gifts based on personal friendship.

Example 5. Senator X and her husband receive a crystal vase, valued at $150, from J

and her husband, as an anniversary present. The couples have been friends since college,

and have exchanged gifts on many occasions. Senator X may accept the gift, as it is

under the $250 limit for gifts, based on personal friendship.

Example 5a. Staffer B receives from a close personal friend a ticket to a baseball game

valued at $30. The friend obtained the ticket from her employing company and did not

reimburse the company for the ticket. Since the friend did not personally pay for the

ticket, the gift does not come within the personal friendship exception. However, since

the ticket is worth less than the gift limit of $49.99, Staffer B may accept the ticket so

long as the tally of all non-exempt gifts from the friend during the calendar year is equal

to or less than the aggregate gift limit of $99.99.

Example 6. Senator A receives a framed print, worth $120, as a fiftieth birthday gift from

B, who is a registered lobbyist, and who told Senator A that he had personally paid for

the print. Senators A and B have been good friends for over ten years, and they have

exchanged gifts occasionally. B’s lobbying clients currently have no interest in any legislation pending before the Senate or any of Senator A’s committees. Senator A may accept

the gift, as long as he is satisfied that there is no linkage between the gift and any official action that he has taken or may take in the future. However, Senator A may not

take B up on his offer for Senator A and his wife to join B and his wife at their beach

house for the weekend, if the value of the hospitality exceeds $250, unless he reimburses

30 SENATE ETHICS MANUAL

50 S. Res. 508 (96th Cong., 2d Sess.) was agreed to on September 30, 1980.

51 Senate Select Committee on Ethics, Regulations Governing Trust Funds to Defray Legal Expenses Incurred by

Members, Officers and Employees of the United States Senate (adopted Sept. 30, 1980; amended Aug. 10, 1988). See

Appendix I for a complete copy of the trust fund regulations. 52 Section 35.3(c) provides that ‘‘a contribution or other payment by a registered lobbyist or an agent of a foreign

principal to a legal expense fund established for the benefit of a Member, officer, or employee’’ is a gift prohibited

by the Rule. The Committee has determined that for purposes of the Gifts Rule, a ‘‘lobbying firm’’ as defined by the

Lobbying Disclosure Act of 1995 is deemed to be a ‘‘registered lobbyist.’’ Since the Rule prohibits any gift with a

value of $50 or more, a lobbyist (or lobbying firm) or agent of a foreign principal could, therefore, contribute only

up to $49.99 to such a fund. 53 See Senate Rule 41 and Chapter 5 of this Manual for a discussion of political fund designees.

B for the value of the lodging and meals for the weekend, or gets approval from the

Committee.

Example 7. Senator M’s college roommate O, with whom she has remained close friends

over the years, begins working as a registered foreign agent. Senator M receives a piece

of pottery valued at more than $50 from O as a Christmas gift. Senator M and O have

never exchanged gifts in the past. Additionally, Senator M learns that O is also giving

similar Christmas gifts to other Senators. Senator M may not accept the gift.

Example 8. Senator F has a close friend Z who is not a lobbyist, but who is very active

in the pro-choice movement. After the Senate votes on a piece of legislation dealing with

pro-choice issues, Senator F receives a large flower arrangement at his office from Z,

with a note attached that reads, ‘‘Thank you for your support of the pro-choice legislation.’’ Senator F may not accept the gift: it is an illegal gratuity.

Contributions or Payments to a Legal Expense Trust Fund

From time to time, Members, officers, and employees of the Senate may find it necessary

to defend themselves against criminal charges or civil claims, or to provide evidence in proceedings (or in rare cases, to initiate civil lawsuits) which would not have arisen but for their

positions. Pursuant to S. Res. 508, 50 this Committee has issued regulations authorizing Members,

officers, and employees to establish legal expense trust funds to defray legal expenses incurred

in investigative, civil, criminal, or other legal proceedings relating to or arising by virtue of service

in or to the Senate. 51 The trust fund agreement must be approved by the Committee. A lawfully

made contribution to a legal expense trust fund, other than by a registered lobbyist (or lobbying

firm) or foreign agent, 52 is not subject to the dollar restrictions of the Gifts Rule, although it must

be disclosed in accordance with the Committee’s disclosure requirements. The Committee’s regulations regarding legal expense trust funds do, however, place limitations on contributions to legal

expense trust funds. This section summarizes those regulations, which should be consulted directly

by anyone seeking to establish such a fund.

Legal expense trust funds may not be established for purely personal legal matters, such as

tax planning, personal injury litigation, protection of property rights, divorces, or estate probate.

A trust fund may be established to defray legal expenses incurred, either as plaintiff or defendant

in a defamation suit, if it is related to one’s official position. The trustee may not be a Member,

officer, or employee of the Senate; an immediate family member of the person creating the trust;

that person’s legal counsel for the matter necessitating the trust; or anyone affiliated with that

counsel’s firm.

Before any money may be raised for or disbursed from the fund, a copy of the executed trust

agreement must be approved by the Committee and subsequently filed with the Committee and

the Office of Public Records. No Senate officer or employee may participate in the fundraising,

except for the political fund designees of an involved Senator. 53 No Senate staffer, corporation

or labor union, Member’s principal campaign committee, or foreign national may contribute to a

legal expense trust fund. Anyone else (including, e.g., PACs, but excluding lobbyists and foreign

agents) may contribute up to $10,000 a year. The individual establishing the fund and his or her

relatives may contribute unlimited amounts. Consistent with analogous FEC precedent, the ComVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00044 Fmt 5222 Sfmt 5222 SMANUAL.002 ETHICS1 PsN: ETHICS1
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54 See 11 C.F.R. ¶ 100.7(b)(6). 55 See also Interpretative Ruling No. 444 (Feb. 14, 2002).

mittee has ruled that expenses incurred by an individual in raising money for the fund (e.g.,

stamps, invitations, and refreshments for a home- or church-based fundraiser) up to $1,000 do not

count towards the contribution limits. 54

Subject to the approval of the Committee, individuals may be permitted to accept, as a contribution to a legal expense trust fund, pro bono services (other than from lobbyists, lobbying

firms, or foreign agents) worth more than $10,000 a year. If the pro bono services are being provided in order to assist a Member to file an amicus curiae brief, the Member need not establish

a legal expense trust fund. 55 However, any individual who wishes to become a party (either as

an intervenor or plaintiff) to a proceeding must establish a legal expense trust fund before accepting pro bono services (see Appendix H for Committee Regulations Regarding Disclosure of Pro

Bono Legal Services.)

The trustee of a legal expense trust fund must submit quarterly reports to both the Committee

and the Office of Public Records, detailing the following:

1) the name and address of every contributor of more than $25 a year;

2) the amount of those contributions;

3) the name and address of every individual or entity receiving expenditures from the

fund;

4) a brief description of the nature and amount of each expenditure;

5) the name and address of any provider of pro bono services; and

6) the fair market value of any pro bono services received.

All excess funds must be donated to organizations that are tax-exempt under section 501(c)(3)

of the Tax Code or returned to contributors pro rata.

Gifts From Other Members, Officers, or Employees

Rule 35 now permits a Member, officer, or employee to accept a gift from another Member,

officer, or employee of the Senate or House of Representatives, with no restrictions on the dollar

value of the gift. However, federal law prohibits a federal employee from giving a gift to a superior, and prohibits a federal employee from accepting a gift from another employee receiving less

pay than herself or himself. Title 5, United States Code, Section 7351. The law provides, however,

that the Committee may make exceptions for gifts given for special occasions such as marriage

or retirement, or other circumstances where gifts are traditionally exchanged. Pursuant to this authority, the Committee has given blanket permission for the giving and acceptance of gifts between

and among Senate Members, officers or employees, when such gifts are given on occasions where

gifts are traditionally given, such as marriage, retirement, birth of a child, birthday, anniversaries,

or holidays, provided such gifts or contributions toward such gifts are entirely voluntary. It is important to remember, however, that a Senate employee is prohibited by federal criminal law from

contributing to the campaign of his or her supervising Senator (See Chapter 6 on Political Activity).

Food, Refreshments, Lodging, and Other Benefits of Outside Activity

Exempted from the general restrictions of Rule 35 by section 1(c)(7) are food, refreshments,

lodging, and other benefits:

(A) resulting from the outside business or employment activities (or other outside activities that are not connected to the duties of the Member, officer, or employee as an officeholder) of the Member, officer, or employee, or the spouse of the Member, officer, or

employee, if such benefits have not been offered or enhanced because of the official poVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00045 Fmt 5222 Sfmt 5222 SMANUAL.002 ETHICS1 PsN: ETHICS1
32 SENATE ETHICS MANUAL

56 See Interpretative Ruling No. 339 (Sept. 25, 1980). See also discussion of Gifts from Relatives, above.

sition of the Member, officer, or employee and are customarily provided to others in

similar circumstances;

(B) customarily provided by a prospective employer in connection with bona fide employment discussions; or

(C) provided by a political organization described in section 527(e) of the Internal Revenue Code of 1986 in connection with a fundraising or campaign event sponsored by

such an organization.

Respecting benefits extended by a political organization under section 1(c)(7)(C) in connection

with its fundraising or campaign event, the Committee has determined that only the political organization sponsoring the event may reimburse expenses for its invitees. Thus, in contrast to section

1(c)(2), where ‘‘free attendance’’ (i.e. tickets) may be accepted from third parties to fundraising

events sponsored by political organizations, only the sponsoring political organization may reimburse food, lodging, and non-local transportation expenses. Such travel expense reimbursements

are not subject to the Gifts Rule’s 30-day disclosure requirement for necessary expenses (payment

of such expenses would be reported by the political organization as required by the appropriate

election authority). (For a discussion of Gifts Rule issues in connection with national political conventions, see previous heading in this chapter).

Example 9. Senator B is the uncompensated president of a company that operates a trout

farm in his home state. As part of his duties as president, Senator B periodically visits

the farm to inspect the facilities, and to meet with the employees. Senator B may accept

reimbursement from the company for his travel to the farm, and for his lodging and

meals while he is there. Reimbursement of such expenses would need to be disclosed

by the Senator on his annual financial disclosure statement, but would not be subject to

the Gifts Rule’s 30-day disclosure requirement for necessary travel expenses.

Example 10. Senator T’s husband is employed as a travel agent. As part of his job, several times a year he and other travel agents fly to various vacation spots to evaluate them

for prospective customers. Their travel expenses are paid by their employer, and their

lodging is provided by the various hotels at which they stay. Senator T’s husband may

accept the payment of the travel expenses and the free lodging, as well as his salary

from the travel agency, as they are all provided as part of his employment. Acceptance

of such expenses by the Senator would need to be disclosed on her annual financial disclosure statement, but would not be subject to the Gifts Rule’s 30-day disclosure requirement for necessary travel expenses.

Example 11. X, who is an attorney working for the Judiciary Committee, is interviewing

for a job with a law firm in Chicago. The law firm wants to fly X out for a two-day

interview, as they do with all prospective employees. Consistent with Rule 35, X may

accept reimbursement for the flight to Chicago, as well as his overnight stay at a hotel

and meals. If he is a filer, X will need to disclose the acceptance of these expenses on

his financial disclosure report, but need not disclose them under the Gifts Rule’s 30-day

disclosure requirement for necessary travel expenses. Potential conflict of interest issues

arising out of job search activities are discussed in a later chapter.

Example 12. Senator K’s wife is a lawyer with a private law firm. Every year the firm

invites all of its lawyers and their spouses to a weekend retreat at a resort hotel. The

value of the weekend’s food and lodging exceeds $49.99 per couple. This retreat would

be offered to Mrs. K as a job-related benefit, regardless of the identity of her spouse.

Therefore, Mrs. K may accept. Since the weekend is the result of the outside business

or employment activities of his spouse, Senator K may also accept it. 56 Acceptance of

such expenses by the Senator would need to be disclosed on his annual financial disclosure statement, but would not be subject to the Gifts Rule’s 30-day disclosure requirement for necessary travel expenses.

Example 13. Staffer L’s spouse works as a flight attendant for an airline that offers free

travel to all employees and their immediate families to the extent that seats are available.

The spouse may accept this benefit under Rule 35.2(a)(7), and staffer L may accept the

free flights as well, as they are the result of the outside business or employment activities

CHAPTER 2 33

57 See Interpretative Ruling No. 192 (Oct. 16, 1978).

of her spouse. If she is a filer, L will need to disclose the acceptance of these expenses

on her financial disclosure report, but need not disclose them under the Gifts Rule’s 30-

day disclosure requirement for necessary travel expenses.

Example 14. Staffer M’s spouse is temporarily assigned by her employer to work in another city. In keeping with company policy regarding out-of-town assignments, the employer offers the spouse weekend round-trip airfare to and from Washington. The spouse

may accept the airfare, regardless of whether the staffer or the spouse actually does the

traveling. 57 If he is a filer, M will need to disclose the acceptance of these expenses

on his financial disclosure report, but need not disclose them under the Gifts Rule’s 30-

day disclosure requirement for necessary expenses.

Example 15. A political organization sponsors a campaign fundraiser for Senator Y in

New York City, and invites Senator Z to attend. Senator Z may accept the refreshments

offered at the fundraiser, and reimbursement from the political organization for the plane

fare to New York City and the taxi fare from the airport to the fundraiser. If the circumstances of the fundraiser required overnight lodging and attendant meals, these could

also be provided by the political organization. Acceptance of such expenses would not

need to be disclosed by Senator Z, since they are reported to the Federal Election Commission.

Pension and Other Benefits

Section 1(c)(8) of Rule 35 allows a Member, officer, or employee to maintain a pension or

other benefit plan from a previous employer without having to cash it in or roll it over upon coming to work for the Senate. The Committee in the past has determined that pension and other benefits resulting from participation in a plan maintained by a former employer represent earnings from

the previous employment rather than a gift. However, neither the previous employer nor the Member, officer, or employee may continue to make contributions to the pension or other benefit plan.

Thus, an employee who participated in an IRA plan maintained by his employer would be able

to keep his account with his former employer when he began working for the Senate, but neither

he nor his former employer could make any additional contributions to the plan.

Informational Materials

This provision of Rule 35 [i.e. 1(c)(9)] allows a Member, officer, or employee to accept informational material sent to the office. Informational material includes books, articles, periodicals,

audiotapes, and videotapes, and information stored by electronic or electromagnetic means (such

as CD ROM, digital disc, etc.). This exception, however, includes only informational material received from the publisher, author, or producer. In other words, the publisher of a periodical may

provide it to Members, but a third party (e.g., a trade association) may not purchase a subscription

to the periodical and give it to Members. While this section will permit the acceptance of a set

of materials (‘‘The Civil War’’ video series from PBS, for example) this provision does not permit

the acceptance of specialized reporting services or other collections which are periodically updated

[for example, encyclopedias (but see ‘‘loaned furnishings’’ under the ‘‘Donations of Home State

Products,’’ section) or the annotated U. S. Code].

Awards or Prizes

Rule 35, section 1(c)(10) allows a Member, officer, or employee to accept an award or prize

won in a contest or event that is open to the public. Thus, the staffer who appears on Jeopardy

and becomes a grand champion may keep her prize money and other winnings, as may the Senator

who purchases the winning Powerball ticket. While a trophy or non-monetary equivalent may be

accepted if it is won in an athletic competition, monetary or monetary equivalent items may not

be accepted as a ‘‘prize’’ or ‘‘award’’ for winning, unless such competition is open to the public,

34 SENATE ETHICS MANUAL

58 Interpretative Rule No. 414; see also, Chapter 4, Financial Disclosure.

or unless the group of competitors was chosen on the basis of athletic talent. Such winnings must

be reported by disclosing individuals as earned income. 58

Honorary Degrees and Other Awards

Section 1(c)(11) of the Rule permits a Member, officer, or employee to accept an honorary

degree, or other nonmonetary award, that is presented in recognition of public service provided

by the Member, officer, or employee. In addition, the Member, officer, or employee may accept

food or refreshments provided as a part of the presentation of such awards (for example, a banquet

or reception), as well as any entertainment provided as part of the presentation. If the award has

a value of more than $250 (e.g., a crystal sculpture, a rare book, etc.), the Member, officer, or

employee must disclose acceptance of the award on the gifts section of his or her annual financial

disclosure report.

Members, officers, and employees who are the intended recipient of a cash award that is bestowed in connection with an event not open to the public may accept the honor of the award,

but the proposed cash award should be given directly to a designated charity, unless a waiver is

requested and obtained from the Committee. If the award or prize is contingent upon, or given

in return for, any speech, article or appearance by the Member, officer, or employee, then the

amount of the award or prize is subject to the $2,000 limit on contributions to charity in lieu

of honoraria contained in Senate Rule 36, and the contribution must be paid directly to a designated charity, which is not maintained or controlled by the Member, officer or employee and

from which neither the Member, officer, or employee, nor his or her family receives any financial

benefit. The direction to charity of such awards worth more than $250 must be disclosed on the

gifts section of the annual financial disclosure report if the Member, officer, or employee is a reporting individual.

Reimbursement for travel expenses in connection with an event at which a Member, officer,

or employee is presented with an award or other honor is governed by Section 2 of the Gifts

Rule. That is, reimbursement for such travel expenses may not be provided by a lobbyist or foreign agent, and the appropriate advance authorization and disclosure forms must be filed with the

Secretary of the Senate. (See later discussion of expense reimbursement in this Chapter.)

Donations of Home State Products

This provision of Rule 35 allows a Member to accept donations of products from his or her

state, from the producers or distributors of those products, that are intended primarily for promotional purposes, and that are of minimal value to any individual recipient (See section 1(c)(12)).

Although there was no corresponding provision in the previous Rule 35, in light of the Gifts

Rule’s overriding purposes of precluding conflicts of interest and promoting public confidence, the

Committee previously concluded that the provision of home state products of minimal value, such

as food and beverages, by businesses in a Senator’s home state, to a Senator’s office for the purpose of passing on to constituents and other visitors represented a time-honored tradition not involving any conflict of interest. Similarly, under the Rule, these home state products (e.g., apples,

peanuts, popcorn, coffee, candy, orange juice) are not regarded as gifts to the Senator or staff,

if the products are not intended primarily for use by the Senator or staff. Thus, to come within

the home state exception, these products must be from the Senator’s home state, must be from

home state producers or distributors (i.e. a loan of art may NOT be accepted from a home state

resident who is merely a private collector), and must be available to office visitors.

Following the same line of reasoning, the LOAN of local art work from home state producers

or distributors for display in a Senate office does not constitute a ‘‘gift’’ to the Senator, as it

falls within a time-honored tradition, confers de minimis value upon the Senator, and does not

CHAPTER 2 35

59 Interpretative Ruling No. 17 (May 23, 1977).

60 See Interpretative Ruling No. 444 (Apr. 15, 1992). 61 See Interpretative Ruling No. 386 (Aug. 8, 1984), as modified by Interpretative Ruling No. 444 (Feb. 14, 2002).

present any conflict of interest. 59 Displaying home state art work, like offering typical home state

snacks, promotes local talents and products and, where the products are offered or displayed in

the Washington, D.C. offices, help make visiting constituents feel at home.

Similarly, LOANED furnishings from home state producers or distributors for display in a

Senate office are neither subject to the limits of the Gifts Rule nor the disclosure requirements

of Rule 34 and the Ethics in Government Act, as amended. These items are not meant for the

personal use or permanent possession of Members, officers, or staff. Ownership is retained by the

lender. Moreover, the items are, by definition, the products of home state businesses and organizations which Senators have a traditional role in promoting. Office equipment, on the other hand,

may be borrowed only for a specified testing period under the supervision and with the approval

of the Rules Committee, in order to provide the Senate with an evaluation of the item’s desirability

for purchase. 60

While the acceptance of loaned furnishings and artwork from home state producers or distributors need not be disclosed on Senators’ annual personal Financial Disclosure Statements, the Committee has in the past determined that there is a public interest in providing a formal means for

authorizing and disclosing the use of private property for official use. Members who plan to use

loaned furniture or furnishings (including artwork) should write to the Committee for a determination that the arrangement is permissible under the Code of Official Conduct. These determinations

are available for public inspection at the Committee’s office. 61

Training

Section 1(c)(13) of Rule 35 allows a Member, officer, or employee to accept training that

is in the interest of the Senate, and food and refreshments that are offered to all attendees as a

part of the training. It does not allow a Member, officer, or employee to accept reimbursement

for transportation or lodging in connection with the training (but provision of local transportation

is permitted).

The Committee has determined that acceptance of educational programs, seminars, and fellowships sponsored by universities and institutions of higher learning are acceptable because such programs are not the kind of ‘‘gifts’’ intended to be prohibited by Rule 35. It appears that university

fellowship programs are also fundamentally consistent with the training exception. The Committee

recommends that a Member, officer, or employee invited to participate in such a program write

the Committee before acceptance to confirm that the program is consistent with this exception.

In addition, non-university, non-Senate groups also sponsor seminars, briefings, and presentations on various issues for Members of Congress and staff. These seminars, briefings, and presentations are an important part of the process of providing information to Members and staff on

issues of legislative concern. For purposes of the Gifts Rule, the Committee has defined ‘‘training’’ to include any event where information is presented to Members and staff by an outside

group, so long as the event is expected to be attended by at least 25 persons from more than

one Senate office or Committee, in addition to those attending from outside the Senate. Thus, no

matter how many individuals from outside the Senate are expected to be in attendance at the training event, more than 25 individuals from within the Congress must be expected to attend the

event, and the Senate individuals must be employed by more than one Senate office.

The exception for training also requires that the training be ‘‘in the interest of the Senate.’’

Thus, before attendance is permitted at an event under the training exception, the Member, officer,

or employee must also make an affirmative determination that the training provided by the event

is ‘‘in the interest of the Senate.’’

36 SENATE ETHICS MANUAL

Example 16. A group in Washington, D.C. regularly sponsors two-hour seminars on the

federal tax code and invites 40 Senate and House staff members with an interest in tax

matters. G, who is a staff member on the Finance Committee, wishes to attend, and he

and his supervising Member have determined that the training would be in the interest

of the Senate. Since more than 25 individuals not all from the same Senate office are

expected to attend, G may accept the training, as well as the buffet lunch offered to all

attendees at the seminar.

Bequests, Inheritances, and Other Transfers at Death

The exception for a ‘‘bequest, inheritance, and other transfer at death’’ (Senate Rule

35.1(c)(14)) recognizes that an inheritance is generally a tribute to a personal relationship rather

than one based on position. This exception also reflects the common sense reality that rarely will

such a situation have the potential for a conflict of interest.

Anything Paid for by the Federal, State, or Local Government

The Gifts Rule provides an exception for:

Anything which is paid for by the Federal Government, by a State or local government,

or secured by the Government under a Government contract.

Senate Rule 35.1(c)(16). Under this exception, any gift to a Member, officer, or employee (e.g.,

transportation, food, lodging) will not be subject to the restrictions of the Gifts Rule. Additionally,

the Committee has determined that under this exception a Member, officer, or employee may accept gifts from Native American groups with whom the federal government has entered into formal

recognition of sovereignty (The Department of the Interior publishes a list of Federally Recognized

Tribes).

Consistent with Senate Rule 38’s prohibition on unofficial office accounts (see Chapter 4) and

the current Gifts Rule, the Committee has interpreted the federal, state, or local government exception to permit state and local governments to defray expenses in connection with specific events,

but not to provide employees or office space, equipment, or furnishings. This interpretation permits Senators to undertake limited cooperative efforts with state and local governments to sponsor

specific events or activities, while prohibiting those governments from making a continuing or sustaining contribution to a Senator’s office.

The Committee has determined that the Kennedy Center (through its Board of Trustees) and

the Ford’s Theatre Society with respect to events at the Ford’s Theatre will be considered to be

a part of the federal government for purposes of the Gifts Rule. Thus, consistent with paragraph

1(c)(16), a Member, officer, or employee may accept an invitation to attend an event at the Kennedy Center or Ford’s Theatre if the invitation is extended by the respective sponsoring organization, i.e., either the Kennedy Center or the Ford’s Theatre Society. Where the Kennedy or Ford’s

Theatre event is a fundraiser for either entity, an invitation from the sponsor of the charity fundraiser also may be accepted in compliance with paragraph 1(d)(3) of the Gifts rule. (See also the

section on free attendance at a charity event in this Chapter.)

For purposes of Rule 35, in addition to the Kennedy Center and the Ford’s Theatre, the Committee has treated the following entities as part of the federal government: the FDR Memorial

Commission; the regional Federal Home Loan Banks; the Joint Congressional Committee on Inaugural Ceremonies; the Peace Corps; the TVA; and the Wolf Trap Foundation. Entities which have

been considered to be state governments include the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, the U.S. Virgin Islands, and American Samoa.

State-run colleges and universities are treated as part of state government. Amtrak on the other

hand is not a government entity. This list is representative, not exhaustive, and questions concerning any particular entity’s status may be directed to Committee staff.

CHAPTER 2 37

62 See Interpretative Rulings Nos. 76 (Oct. 5, 1977) and 162 (Aug. 3, 1978). 63 See Interpretative Ruling No. 412 (Aug. 11, 1986). 64 See Interpretative Ruling No. 162 (Aug. 3, 1978); Interpretative Ruling No. 76 (Oct. 5, 1977).

Personal Hospitality

Personal hospitality, that is, food, lodging, and entertainment provided by an individual, other

than a registered lobbyist or agent of a foreign principal, at that person’s residence, is exempt from both the limits of the Gifts Rule (see ¶ 1(C)(17)) and the reporting requirements of

the financial disclosure statute.

This personal hospitality exemption is intended to cover hospitality in any personal residence which an individual owns, or leases under a lease which is unrelated to the individual’s

employment. 62 As a general rule, to qualify for the exemption, the residence or other property

should not be property which is rented out to others by the individual providing the hospitality.

The exemption also covers travel on a boat or airplane owned by an individual unless such

travel is substituting for commercial transportation. An individual (other than a lobbyist or foreign

agent) who owns a non-commercial fishing or pleasure boat could, for example, permit a Member,

officer, or employee to use the boat for a weekend, and the use of the boat could qualify as ‘‘personal hospitality.’’ Likewise, a pleasure ride in a private airplane could be considered personal

hospitality if the ride did not substitute for commercial transportation.

The personal hospitality exemption does not apply to hospitality by individuals in restaurants,

nightclubs, or in any other commercial establishment. Personal hospitality is exempted only if paid

for by an individual, not a corporation or firm, even if the corporation or firm is wholly owned

by the individual.

As long as the hospitality is truly personal, that is, extended by an individual (other than a

lobbyist or foreign agent) at that individual’s residence (or other property of the individual) and

at his or her own expense for a non-business purpose, a Senator or staffer may accept it, whether

or not the host is present at the time. As with gifts of little value (less than $10), repetitive acceptance of personal hospitality from the same individual, even though permitted by the Gifts Rule,

could be improper, depending upon the totality of the circumstances.

Example 17. Mr. and Mrs. Y invite Senator C and family to fly down to Miami on the

Ys’ private plane, stay at the Ys’ nearby vacation home, and use their yacht for deep

sea fishing. The Ys’ provision of food and lodging at their home and pleasure boating

would all be exempt from the Gifts Rule as personal hospitality. The flight to Miami,

however, would be a substitute for commercial transportation. It would thus be a nonexempt gift, valued at the first class fare to Miami, 63 and subject to the $50 gift limit.

Example 18. The X Corporation maintains a corporate hunting lodge, available to its executives and their guests. An officer of the corporation invites Senator D to be his guest

at the lodge. Since the lodge is owned by the corporation and not the individual officer,

this offer would not fall under the personal hospitality exception. 64

Example 19. The W family owns a beach house at Rehobeth, which they do not rent

out but use for family vacations. Mr. W is a registered lobbyist. The Ws invite staffer

E to use the house during a week when the Ws will be elsewhere. E may not accept

because Mr. W is a lobbyist.

Example 20. The owner of a guest house in Aspen offers Senator F complimentary lodging there. Since the guest house is a commercial establishment, this offer would not constitute personal hospitality and would be subject to the gift limit.

Although a Member, officer, or employee may not accept an offer of a week’s lodging from

a lobbyist under the personal hospitality exception, a Member, officer, or employee may accept

an offer of a week’s lodging from a lobbyist who is a personal friend, under the exception for

gifts based on personal friendship, as long as the total value of the lodging does not exceed $250

and the requirements for use of the exception are otherwise met.

38 SENATE ETHICS MANUAL

Example 21. Lobbyist A owns a beach house at Bethany, which he uses for family vacations. A and Senator B have been friends for many years. A invites Senator B to spend

a weekend at the beach house. Senator B may accept A’s offer, as a gift of personal

friendship, as long as the total value of the weekend’s lodging is less than $250.

Free Attendance at a Widely Attended Event

Section 1(d) of the Gifts Rule provides that:

(1) A Member, officer, or employee may accept an offer of free attendance at a widely attended convention, conference, symposium, forum, panel discussion, dinner, viewing, reception, or

similar event, provided by the sponsor of the event, if –

(A) the Member, officer, or employee participates in the event as a speaker or a panel

participant, by presenting information related to Congress or matters before Congress, or

by performing a ceremonial function appropriate to the Member’s, officer’s, or employee’s official position; or

(B) attendance at the event is appropriate to the performance of the official duties or representative function of the Member, officer, or employee.

The Committee has determined that an event is ‘‘widely attended‘‘ when attendance at the

event is expected to include at least 25 persons from outside Congress, and attendance at the event

is open to members from throughout a given industry or profession, or to a range of persons interested in an issue.

‘‘Free attendance’’ includes waiver of a conference fee, provision of local transportation, and

instructional materials that are furnished to all attendees. It does not include entertainment collateral to the event, or food or refreshments that are not taken in a group setting with substantially

all of the other attendees. Transportation may be deemed ‘‘local’’ for purposes of accepting free

attendance, if such travel takes place within the Senate Member, officer, or employee’s official

duty station as defined in the Senate Travel Regulations. (See the TRAVEL section below in this

Chapter for a discussion of the limitation on acceptance of ‘‘necessary expenses’’ for local travel.)

‘‘Free attendance’’ at a widely attended event does not include an offer of free attendance

(i.e. a ticket) to a sporting, entertainment, or other purely recreational event. See the section on

sporting events in this chapter and the section on attendance at a charity event, below.

Free attendance may come only from the sponsor of an event. Any individual or entity may

sponsor a ‘‘widely attended’’ event, including registered lobbyists, lobbying firms, or foreign

agents. However, those who only purchase tables or blocks of tickets to an event do not become

event sponsors.

This section also permits a Member, officer, or employee to accept an unsolicited offer of

free attendance for an accompanying individual (only 1), e.g., a staff member, spouse, child, significant other, or other individual, if others attending will be similarly accompanied, or if the attendance is appropriate to assist in the representation of the Senate.

This exception requires that any Member, officer, or employee who attends an event makes

a determination that his or her attendance at the event is appropriately connected with official duties or position.

The spouse of a Member can participate in activities and events unaccompanied by a Member

in a quasi-official or officially related capacity. Thus, where an event meets the Gifts Rule requirements relating to widely attended events such that a Member may attend an event, the spouse

of a Member may attend the event unaccompanied by the Member, provided the Member makes

a determination that the attendance of the spouse is appropriate to assist in the representation of

the Senate.

Example 22. The Washington Press Club invites Members to attend its annual Press

Awards dinner, which will be attended by representatives of numerous press organizaVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00052 Fmt 5222 Sfmt 5222 SMANUAL.002 ETHICS1 PsN: ETHICS1
CHAPTER 2 39

tions, and their spouses. The Press Club will provide two tickets to each Member interested in attending, one for the Member, and one for the spouse. The Members may accept the tickets, and may bring their spouses.

Free Attendance at a Charity Event

Section 1(d)(3) allows a Member, officer, employee, or spouse or dependent to accept an unsolicited offer of free attendance from the sponsor of a charity event. Such an offer of free attendance may include the immediate family of the Member, officer, or employee. Although organizations that put on charitable fundraisers may designate groups underwriting the event (e.g. by donating money or refreshments, or buying tickets) as ‘‘sponsors’’ in their invitations and promotional

materials, for purposes of the Gifts Rule, an individual or company does not become a ‘‘sponsor’’

of an event merely by donating goods or money for, or purchasing tickets to, the event. Thus,

a staffer may not accept a $60 ticket to a charity fundraiser from a corporation or association

that buys a table at the event, even though the corporation or association is listed as a ‘‘sponsor’’

in the event’s program.

Although a Member, officer, employee, or spouse (and the immediate family of the Member,

officer, or employee) may accept reimbursed travel expenses from the sponsor of a charity event,

such expenses may not be accepted if the charity event is substantially recreational in nature.

Example 23. X, a lobbyist, invites Senator L to attend the American Heart Association’s

fundraiser in Arlington, Virginia. There will be a dinner with a live band and dancing.

Tickets to the event will be sold for $500 per person. Senator L may not accept the invitation, as it does not come from the sponsor of the event, the American Heart Association.

Example 24. Good Charity invites Senator L to participate in its annual charity golf tournament in northern Virginia. Senator L may accept the invitation from the sponsor, may

accept the waiver of any greens fees, and may participate in the dinner for all participants

following the tournament. Lodging and transportation other than local transportation

could not be accepted from the sponsor because the event is substantially recreational.

Sporting Events

As noted above, a Member, officer, or employee may accept an offer of free attendance from

the sponsor of a charity event that is substantially recreational, i.e. a sporting event, however, reimbursed travel expenses may not be accepted in such circumstances. A ticket to a sporting or recreational event that is not a charity event would be considered a gift of the face value of the

ticket and must come within the gift limit of $49.99 and the aggregate limit from the source of

$99.99 to comply with the Senate Gifts Rule.

Events which are solely sporting, recreational, or entertainment events do not meet the requirements of the ‘‘widely attended’’ exception to the Gifts Rule. The widely attended exception requires, in part, that the activity relate to a matter before Congress or to a ceremonial function

appropriate to the Member’s or employee’s official position or to the performance of official duties

or representative functions.

Under section 1(c)(2), a Senate Member, officer, or employee may accept free attendance at

a campaign fundraiser sponsored by a political organization where the event is held at a sky or

luxury box seat or other similarly discrete, segregated seating or viewing area at a performance

arena.

Opportunities and Benefits Available to a Wide Group

This provision of Rule 35 allows a Member, officer, or employee to accept opportunities and

benefits which are:

(A) available to the public or to a class consisting of all Federal employees, whether

or not restricted on the basis of geographical consideration;

40 SENATE ETHICS MANUAL

(B) offered to members of a group or class in which membership is unrelated to congressional employment;

(C) offered to members of an organization, such as an employees’ association or congressional credit union, in which membership is related to congressional employment and

similar opportunities are available to large segments of the public through organizations

of a similar size;

(D) offered to any group or class that is not defined in a manner that specifically discriminates among Government employees on the basis of branch of Government or type

of responsibility, or on a basis that favors those of higher rank or rate of pay;

(E) in the form of loans from banks and other financial institutions on terms generally

available to the public; or

(F) in the form of reduced membership or other fees for participation in organization

activities offered to all Government employees by professional organizations if the only

restrictions on membership relate to professional qualifications.

Generally, this provision allows a Member, officer, or employee to accept benefits or opportunities that are offered because of the Member’s, officer’s or employee’s membership in a group

that is not defined on the basis of the Member’s, officer’s, or employee’s employment with the

Senate.

The Committee has concluded, however, that if participants in a program are chosen on the

basis of a selective screening process, the program does NOT qualify for the exemptions provided

by 1(c)(19)(A) or (D). For example, if any government employee is eligible, but the program sponsor selects participants which it deems ‘‘best qualified’’ for inclusion, then the program cannot

qualify for acceptance by a Member, officer, or employee under this exception. In other words,

just because every individual in a defined class or group may apply for participation, does not

make the program available to everyone in the group if further selection criteria are applied to

limit the class or group.

The Committee has in the past determined that the Gifts Rule was not intended to prohibit

Members, officers, and employees from accepting offers made to the general public, as distinct

from offers targeted specifically at Senators or their staff. Similarly, scholarship awards that are

available on the same terms to others outside the Senate were not intended to be covered by Rule

35.

Example 25. Staffer N accumulates sufficient ‘‘frequent flyer’’ miles on personal travel

to receive complementary airfare to Europe. He may accept the award because the ‘‘frequent flyer’’ program is available to all travelers.

Example 26. A hotel chain offers a discounted ‘‘government rate’’ to all federal employees, whether they are on official trips or not. Senate employees may take advantage of

the reduced rate.

Example 27. Staffer Q is enrolled in a night school master’s program in public policy.

Q applies for a scholarship program available to all students at the school and receives

an award. He may accept the scholarship.

Example 28. X, a lawyer and a staff member for a Senate Committee, receives an advertisement from his local bar association offering term insurance at a discounted rate to

all members of the bar association. X may take advantage of the offer.

Plaques, Trophies, or Other Commemorative Items

Section 1(c)(20) of Rule 35 allows a Member, officer, or employee to accept a plaque, trophy,

or other item that is substantially commemorative in nature and which is intended solely for presentation. Thus, a Senator who speaks at a local high school as part of the school’s Civics Day

program may accept a plaque presented to him by the students commemorating his appearance

in the program. However, a Member, officer, or employee may not accept, under this provision,

an item of significant utilitarian or artistic value, for their own personal use.

CHAPTER 2 41

65 Interpretative Ruling 414; see also, Chapter 4, Financial Disclosure.

66 See Interpretative Ruling No. 437 (Dec. 15, 1987). Under the Gifts Rule effective January 1, 1996, these gifts

will often fall under the exceptions for personal friends or relatives, and thus not require a waiver.

67 See Interpretative Ruling No. 439 (June 18, 1990).

68 In 1993, the Committee granted a blanket waiver permitting Senate Members and staff to accept tickets to 1994

inaugural events sponsored by the Presidential Inaugural Committee, in recognition of the uncertainty surrounding the

value of these tickets and because of the unique public character of these inaugural events. See Dear Colleague letter,

dated January 14, 1993, from the Members of the Committee. In prior inaugural years, tickets were acceptable under

the former entertainment exception to the Gifts Rule. See Interpretative Ruling No. 394 (Jan. 18, 1985). The exception

for entertainment was later deleted from the rule.

The Rule requires that the commemorative item be solely for presentation. This provision contemplates that the item is presented as part of an event involving the Member or employee receiving the item, whether that event is a full-fledged reception, dinner or luncheon, or a visit by a

delegation of constituents to the Member’s office. For example, a model ship mailed by a marine

supply company to Members in commemoration of the company’s 100th anniversary would not

qualify. A model ship presented to a Member upon the Member’s tour of the shipbuilding facility

could be a commemorative item.

Consistent with past practice, and notwithstanding the disclosure requirements of Senate Rule

34, the Committee will continue to require that Members and employees disclose commemorative

items of a value in excess of $250 on annual financial disclosure forms. Trophies or awards won

in athletic competition must be reported as earned income. 65

Reimbursement for travel expenses in connection with an event at which a Member, officer,

or employee is presented with a commemorative item, plaque or trophy is governed by Section

2 of the Gifts Rule. Accordingly, reimbursement for such travel expenses may not be provided

by a lobbyist or foreign agent, and the appropriate advance authorization and disclosure forms

must be filed with the Secretary of the Senate.

Items for Which a Waiver is Granted by the Ethics Committee

The Select Committee on Ethics is authorized to grant waivers in unusual cases. The Committee will grant requests for such waivers only where there is no potential conflict of interest

or appearance of impropriety, generally, for gifts from individuals who have a long-standing personal or social relationship with the Member or employee, where it is clear that it is those relationships that are the motivating factors of the gift, rather than the fact of the individual’s office or

position in the Senate. The following list describes waivers granted by the Committee in situations

that may have general interest.

Wedding gift and ‘‘significant other’’ waivers. The Committee routinely waives the Gifts Rule

to allow the acceptance of wedding gifts 66 as well as gifts given because of a significant, personal,

dating relationship where the person giving the gift is not seeking official action from the person

receiving the gift or that person’s supervising Senator. 67

Presidential Inaugural events. Under the current Gifts Rule, 68 the Presidential Inaugural event

or inaugural events sponsored by private parties may qualify as ‘‘widely attended’’ events under

Rule 35. The Rule provides that a Member, officer, or employee may accept an offer of free attendance only at a widely attended event (that is, an event at which attendance is expected to

include at least 25 persons from outside Congress, and attendance is open to members from

throughout a given industry or profession, or to a range of persons interested in an issue), only

from the sponsor of the event, and only if the Member, officer, or employee determines that

his or her attendance is appropriately connected with his or her official duties or position. Thus,

a Member or staffer could accept an offer of free attendance from the Presidential Inaugural Committee for an event sponsored by the committee, or from a private group for an event sponsored

42 SENATE ETHICS MANUAL

by the group, if the event is widely attended and the Member or staffer determines that attendance

is connected with his or her official duties or position.

If an event is a fundraiser sponsored by a political organization, a Member or staffer may

accept an invitation to attend from any person or group that has obtained tickets from the sponsoring political organization. Tickets to a campaign event which is not a fundraiser may be accepted only from the sponsoring political organization.

If an event is a charitable fundraiser, a Member or staffer, or his or her spouse or dependent,

may accept a ticket only from the charitable sponsor of the event. Tickets to events may also

be accepted from a relative or state or local government or, if valued at no more than $250, on

the basis of personal friendship. Attendance at a reception where food or refreshments of nominal

value are offered other than as part of a meal is also permissible.

Unless an invitation comes within one of the above exceptions, Members and staff should

recall that the Gifts Rule prohibits acceptance of any gift valued at $50 or more. Thus, bearing

in mind the Rule’s annual per source gift limit of $99.99, where no exception applies, a Member

or staffer could accept a ticket (or tickets) to an event only if the ticket (or tickets) had a face

value (or aggregate face value) of less than $50.

Constituent-sponsored meetings and meals. The Committee has also granted a blanket waiver for

certain meetings, sponsored by constituent groups, that include a meal. This blanket waiver permits

small (less than 25) constituent groups to meet with a Member or staffer over a meal if the meeting is: 1) regularly scheduled (e.g., a civic club’s, labor union’s, or industry association’s annual

visit to Washington), 2) open to all members of the group (as opposed to only officers or directors), and 3) attendance by a Member, officer, or employee is appropriate under the Rule because

it relates to the Member, officer, or employee’s official duties.

Disclosure Waivers. Waivers of the disclosure requirements of Title I of the Ethics in Government

Act (Senate Rule 34) must be separately requested. See Chapter 5 of this Manual for information

on disclosure waivers.

Food or Refreshments Other than as Part of a Meal

Section 1(c)(22) allows a Member, officer, or employee to accept food or other refreshments

of a nominal value that are offered not as part of a meal. The Committee has adopted a reasonable,

common sense interpretation of this exception, to include a reception where the attendees consume

food (typically, hors d’oeuvres) or drink while standing up, as opposed to a sit-down meal; and

a ‘‘continental’’ style breakfast, where coffee and donuts, bagels, etc. are served, as opposed to

service of a hot meal.

Items of Little Intrinsic Value

A Member, officer, or employee is permitted by section 1(c)(23) to accept items of little intrinsic value, such as a greeting card, baseball cap, or T-shirt. The Committee will not assign a

dollar value to the concept of ‘‘little intrinsic value’’ instead, it will be left to the reasonable discretion of each supervising Member as to whether a gift to the Member, or to a staffer under

his or her supervision, falls within this exception, giving due regard to the kind of items enumerated in the exception.

General Guidelines

In addition, Senators and Senate staff should be wary of accepting any gift where it appears

that the gift is motivated by a desire to reward, influence, or elicit favorable official action. In

the 102d Congress, the Committee rebuked a Senator for repeated acceptance of and failure to

disclose gifts from a university and its president over a period of years when the Senator was

being asked to take routine official actions which affected the school. The Committee found this

CHAPTER 2 43

69 See Interpretative Ruling No. 94 (Jan. 24, 1978).

conduct, and the failure to disclose miscellaneous gifts from other persons (as required for gifts

worth more than $250), inappropriate, despite finding no linkage between the gifts and any official

action. Similarly, the Committee has advised a group of staffers against accepting coffee and

donuts for their weekly legislative meeting from an organization that lobbied the Congress, ruling

that ‘‘such an arrangement between a committee staff and [an organization with] an interest within

its jurisdiction could reflect discredit upon the Senate.’’ 69 Thus, repeatedly taking gifts which the

Gifts Rule otherwise permits to be accepted may, nonetheless, reflect discredit upon the institution,

and should be avoided.

Who is a ‘‘Lobbyist’’ for Purposes of the Gifts Rule

The Gifts Rule contains several restrictions specifically applicable to gifts from registered lobbyists and foreign agents. Members, officers, and employees may not accept from lobbyists or foreign agents gifts of personal hospitality or contributions to legal defense funds. In addition, a contribution by a registered lobbyist or foreign agent to a charity maintained or controlled by a Member, officer, or employee, or on the basis of a designation or recommendation by a Member, officer, or employee (unless it is a charitable contribution in lieu of honoraria), is a prohibited gift

to the Member, officer, or employee. (For a detailed discussion, see section on ‘‘Other Prohibited

Gifts From Lobbyists, Lobbying Firms, and Foreign Agents’’ in this chapter). Finally, a Member,

officer, or employee may not accept reimbursement from a registered lobbyist or foreign agent

for officially related travel. (See section on ‘‘Travel’’ in this chapter).

Under the Gifts Rule, a ‘‘registered lobbyist’’ is a lobbyist registered under the Lobbying Disclosure Act of 1995 and an ‘‘agent of a foreign principal’’ is defined as an agent of a foreign

principal registered under the Foreign Agents Registration Act. Pursuant to the Lobbying Disclosure Act, in addition to individuals who must register, many organizations are required to act as

registrants, as, for example, organizations employing in-house lobbyists, and lobbying firms (entities with one or more employees who act as lobbyists for outside clients).

For purposes of applying the special restrictions on lobbyists in the Gifts Rule, an organization

employing lobbyists (outside or in-house) to represent solely the interests of the organization or

its members will not be considered to be a ‘‘lobbyist’’. Thus, a corporation, trade association, or

labor union that employs lobbyists to serve only the interests of the corporation or the members

of the trade association or union would not be a ‘‘lobbyist’’ for purposes of the Gifts Rule, and

could sponsor and reimburse for officially related travel. On the other hand, a lobbying firm—

that is, a firm that provides lobbying services for others—will be considered a lobbyist for purposes of these restrictions. Thus, the law firm that provides lobbying services for the firm’s clients

through an individual registered as a lobbyist will also be considered to be a ‘‘lobbyist’’ for purposes of the Gifts Rule, and may not contribute to a legal expense trust fund, contribute to a charity maintained or controlled by a Member, officer, or employee, or reimburse for officially related

travel.

National Political Conventions

The national political conventions typically involve many diverse kinds of activities that may

call for application of the Gifts Rule. The following discussion covers some common situations

that occur at political conventions.

* With limited exceptions, attendance at the national conventions is considered campaign activity. Thus, for example, a Senate staff member who attends a convention must do so on his

or her own time (i.e., using accrued leave). Except in rare circumstances, such as, for example,

where a Capitol police officer is officially assigned to provide security for Members, it is unlikely

that attendance at a convention will be deemed to be official or officially related. Attendance at

44 SENATE ETHICS MANUAL

70 Senate Rule 35.2(a).

a political convention will generally be considered campaign activity, regardless of the nature of

the participation (e.g., delegate, platform committee, cloakroom type duties, etc.)

* The Gifts Rule permits acceptance of any gift paid for by any unit of federal, state, or local

government, including the host city’s official host committee.

* The Rule permits national party and convention committees, state and local party organizations, and campaign committees to provide transportation, and food, lodging, refreshments, and entertainment in the host city, in connection with attendance at the convention. The Rule also allows

acceptance of free attendance (local transportation, food, refreshments, or integral entertainment)

to any fundraising event sponsored by a political organization.

* An invitation to any reception is also acceptable, since the Rule allows food or refreshments

of nominal value (other than as part of a meal). Additionally, items of little intrinsic value, such

as a T-shirt or baseball cap, are permitted by the Rule.

* The Rule also permits free attendance at widely attended events at the invitation of the event

sponsor. This large-group exception appropriately applies to activities associated with attendance

at the conventions. If at least 25 non-congressional attendees are invited to attend an event, then

Senate invitees may also attend and accept local transportation, and food, refreshments, or entertainment which are part of the event. The sponsor’s invitation for an accompanying individual may

also be accepted if others will generally be similarly accompanied.

* Unless specifically permitted by the Rule as discussed above, all other gifts from organizations or individuals (other than a relative or personal friend) must comply with the Rule’s $49.99

per gift, $9.99 aggregation, and $99.99 annual limits, or they may not be accepted.

TRAVEL

The Gifts Rule provides that a reimbursement:

‘‘from an individual other than a registered lobbyist or agent of a foreign principal for necessary transportation, lodging and related expenses for travel to a meeting,

speaking engagement, factfinding trip or similar event in connection with the duties of

the Member, officer, or employee as an officeholder shall be deemed to be a reimbursement to the Senate and not a gift prohibited by this rule’’.

Rule 35.2(a)(1)(emphasis added). Thus, if the Member or employee is participating in an event

in connection with the duties of the Member or employee, he or she may accept necessary travel

expenses from the sponsor of the event, as long as the sponsor is not a registered lobbyist or

foreign agent. 70 For purposes of this Rule, the Committee has concluded that a ‘‘lobbying firm,’’

as defined in the Lobbying Disclosure Act of 1995, will also be deemed to be a ‘‘lobbyist’’ and

may not provide reimbursement of travel expenses.

Although section 2 of Senate Rule 35 prohibits lobbyists from sponsoring or reimbursing expenses of Members, officers, or employees for officially related travel, it does not prohibit a lobbyist who is an employee of the sponsoring organization, or who is an outside lobbyist hired by

the sponsoring organization, from assisting the organization in arranging the event, for example,

by issuing the invitations on behalf of the organization or by attending the event. Thus, Members,

officers, or employees may accept invitations to participate in officially related travel, even if the

invitation comes through the sponsor’s lobbyist, as long as it is clear that the lobbyist is making

the invitation on behalf of his or her employer or client, who is the sponsor of and is paying

for the event and who is not a lobbyist.

A Member, officer, or employee may not accept reimbursement for necessary expenses of

‘‘factfinding’’ or other travel connected with the performance of official duties for travel within

CHAPTER 2 45

71 Senate Rule 35.2(a)(2).

72 An unsolicited offer of ‘‘free attendance’’ from the sponsor of the event, however, may be accepted. Rule

35.2(d)(3). 73 5 U.S.C. app. 7, § 501(b); Senate Rule 36. See Chapter 3 for a detailed discussion of the honoraria ban. 74 Senate Rule 35.2(a)(1)(A) and (B).

75 Senate Rule 35.2(b)(1) through (4).

76 Senate Rule 35.2(c)(1) through (5).

a thirty-five (35) mile radius of the Member, officer, or employee’s local duty station. Acceptance

of necessary expenses authorized by this paragraph is also subject to certain time and other limitations, as will be discussed fully below. (See the section on ‘‘Free Attendance at a Widely Attended

Event’’ earlier in this Chapter for a discussion of the geographic limitations applicable to such

events).

Examples of events for which reimbursement could be accepted from the sponsor by the

Member, officer, or employee could include conducting officially related factfinding on a sponsor’s

premises, or on issues clearly relevant to the sponsor’s interests, addressing a convention, attending

a meeting, teaching a seminar, or a similar activity in connection with official duties. The term

‘‘reimbursement’’ includes direct, up-front payment of travel expenses by the sponsor, as well as

the sponsor’s indemnification of a staffer for travel expenses.

Reimbursement for necessary expenses for events which are substantially recreational in

nature, however, is not considered to be ‘‘in connection with the duties of a Member, officer, or

employee as an officeholder,’’ and will not be allowed. 71 Thus, Members or employees may not

accept reimbursement for necessary travel expenses in connection with charity golf, tennis, fishing,

or ski tournaments. 72

While expenses for officially related travel may be accepted, a Member or staffer may not

accept travel from a private source to perform a core Senate function, such as appearing before

a federal agency. Additionally, accepting payment beyond travel expenses in return for a speech

or appearance is prohibited under the honoraria ban. 73

An employee who plans to accept reimbursement for necessary travel expenses under this provision of the Rule must receive ADVANCE authorization in writing from his or her supervising

Member or Senate officer, (not from the staff director, administrative assistant, chief of staff

or other Senate employee) and must disclose the expenses reimbursed or to be reimbursed and

the written authorization to the Secretary of the Senate within 30 days after completion of the

travel. 74 The forms for these disclosures (RE–1 and RE–2) have been consolidated onto one form

(RE–1/2),which should be filed with the Office of Public Records within 30 days after completion

of travel (see Appendix G for a copy of the Rule 35 travel form.) Completion of these Rule 35

forms is not necessary for official travel paid with Senate funds or other government funds. The

written authorization must include the employee’s name, the name of the person making the reimbursement, the time, place, and purpose of the travel, and ‘‘a determination that the travel is in

connection with the duties of the employee as an officeholder and would not create the appearance

that the employee is using public office for private gain.’’ 75 The authorization must be signed

by the supervising Member or officer, and must include a good faith estimate of total transportation, lodging, meal, and other expenses reimbursed or to be reimbursed, as well as a determination that all of the expenses are necessary transportation, lodging, and related expenses. 76 Supervising officer in this context refers to officers of the Senate only (i.e. Secretary of the Senate,

Sergeant at Arms, and Secretary of the Majority and Minority). All other forms filed under this

section of the Rule will need to bear the signature of a Senator.

A Member who accepts reimbursement for necessary travel expenses under this provision of

the Rule must also disclose the expenses reimbursed or to be reimbursed within 30 days after the

travel is completed (on form RE–3). This disclosure must be signed by the Member, and must

include a good faith estimate of total transportation, lodging, meal, and other expenses reimbursed

46 SENATE ETHICS MANUAL

77 Senate Rule 35.2(c)(1) through (6).

78 Senate Rule 35, Section 1(d)(4).

79 See Interpretative Ruling No. 214 (Dec. 22, 1978); Interpretative Ruling No. 89 (Nov. 21, 1977).

or to be reimbursed, a determination that all of the expenses are necessary transportation, lodging,

and related expenses, and ‘‘a determination that the travel was in connection with the duties of

the Member or officer as an officeholder and would not create the appearance that the Member

or officer is using public office for private gain.’’ 77

Finally, Senate Rule 34, Public Financial Disclosure, (Title I of the Ethics In Government Act

of 1978, as amended) requires a reporting individual to make an annual disclosure of the receipt

of reimbursements that cover travel-related expenses aggregating more than $250 from any one

source during a calendar year. However, if the reporting individual properly reports the receipt

of necessary expenses under Senate Rule 35 as discussed above, the reporting individual need not

file a duplicate report of these expenses on the annual Financial Disclosure Report under Senate

Rule 34.

Example 29. A local Chamber of Commerce and an oil producers group invite a group

of Senate staffers with responsibility for energy issues to a meeting to discuss energy

problems and potential legislation. Neither group is a registered lobbyist, lobbying firm,

or foreign agent. The staffers may accept travel expenses from the Chamber and/or the

oil producers to attend the meeting.

Example 30. The sponsor of a charitable golf tournament invites several Senators, along

with numerous other celebrities, to participate in the tournament. The sponsor offers to

pay the Senators’ entrance fee of $150 in order to induce other people to contribute to

the charity in return for the opportunity to play with the celebrities. The Senators may

accept because the invitation comes from the sponsor of the charity event. 78 However,

since the Rule specifically prohibits it, they may not accept the sponsor’s offer to pay

their expenses for travel (other than local transportation at the tournament site), lodging,

meals, or other travel expenses.

Necessary Expenses

The Rule defines ‘‘necessary expenses’’ as ‘‘reasonable expenditures for transportation, lodging, conference fees and materials, and food and refreshments’’ [Rule 35.2(d)(2)]. The sponsoring

organization may provide reimbursement for these expenses or may provide the food, lodging, or

transportation directly. There is no dollar limit on the value of the necessary expenses, though

the expenses must be ‘‘reasonable,’’ and travel expenses of $250 or more in value must be disclosed by Senators and those staffers who file annual financial disclosure statements. Nor are there

restrictions on the mode of transport or the type of accommodations that may be accepted. Necessary expenses do not include any expenditures for recreational activities, or entertainment other

than that provided to all attendees as an integral part of the event, unless the activities or entertainment are otherwise permissible under the Rule. Nor do necessary expenses include expenses which

are associated with appearances or activities unrelated to the sponsor’s event.

Example 31. Senator R, who sits on the Armed Services Committee, has been invited

to speak at a convention in Los Angeles, sponsored by a consortium of defense contractors. The day after the convention, R schedules a meeting with Department of Veterans

Affairs officials in L.A. Senator R may not accept an extra day’s accommodations from

the consortium to attend this meeting. 79

‘‘Necessary transportation, lodging, and related expenses’’ may include travel expenses of the

Member’s or employee’s spouse or child, if the Member (or the employee’s supervising Member

or officer) signs a determination in writing that the attendance of the spouse or child is ‘‘appropriate to assist in the representation of the Senate’’ [Rule 35.2(d)(4)]. The Committee has concluded that necessary expenses which may be paid by the sponsor of legislative factfinding or

other officially related travel by a Member, officer, or employee do not include expenses for any

individual (aide, fiance, significant other, etc.) who is not either the spouse or a child of the MemVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00060 Fmt 5222 Sfmt 5222 SMANUAL.002 ETHICS1 PsN: ETHICS1
CHAPTER 2 47

80 See Interpretative Ruling No. 157 (June 30, 1978). Similarly, there are no financial disclosure requirements under

Senate Rule 34 or 35 for such publicly funded or campaign funded trips. Campaign funds used to pay officially related

travel expenses must be disclosed in accordance with the Federal Election Campaign Act.

ber, officer, or employee. Thus, a Senate aide who is to accompany a Senator on officially related

travel must have received a separate invitation from the sponsor of the event.

A senatorial spouse traveling independently of the Senator in a quasi-official or officially related capacity, should disclose reimbursement of necessary expenses under Senate Rule 34, which

requires annual financial disclosure on May 15 of each year, rather than under the disclosure requirements of Senate Rule 35.

Reimbursement for other than ‘‘necessary’’ expenses will be deemed to be a gift.

Needless to say, ‘‘necessary expenses,’’ for which one claims reimbursement, may never exceed one’s actual expenses. With respect to foreign travel, Rule 39.2 stipulates that no Member,

officer, or employee may seek or accept payment from the United States Government for any expense that has already been reimbursed through any governmental or non-governmental source.

While not spelled out in the rules, this ‘‘no double billing’’ principle obviously applies to domestic

travel as well. Moreover, a Member, officer, or employee who receives a per diem allowance for

foreign travel must return to the United States Government any portion that is not actually used

for necessary lodging, food, and related expenses (Rule 39.3).

Time Limits

Rule 35.2(d)(1) sets an upper limit of ‘‘3 days exclusive of travel time within the United

States or 7 days exclusive of travel time outside of the United States,’’ absent a Committee waiver

in advance. Recognizing the greater time required to travel to locations such as Alaska, Hawaii,

and Guam, the Committee has construed the 3-day limit to apply only within the contiguous 48

states. Travel to destinations outside the contiguous 48 states is governed by the 7-day rule. These

limits do not apply to publicly funded trips, that is, travel expenses paid from a committee account

or a Member’s personal office account or paid by a unit of federal, state, or local government;

nor do the limits apply to officially related travel funded by a Senator’s principal campaign committee. 80

The travel period begins upon arrival at the first business destination on the trip. The travel

period ends upon departure from the last point of business on the trip. Three days means three

24-hour periods; seven days means seven 24-hour periods. The return transportation may be accepted even though it occurs after the expiration of the three- or seven-day period. Travel time

itself does not count against the limits. Travelers may extend trips at their own expense and on

their own time and still accept return transportation. Such incremental officially related expenses

may also be paid with the supervising Senator’s excess campaign funds. Travelers may not accept

additional reimbursements from the sponsor to cover the costs of personal travel. Travelers may

accept transportation from one duty station to the site of the sponsored event and back to the duty

station, or may accept travel expenses from the event to their next point of business. If a traveler

receives invitations to consecutive independently arranged events with separate purposes,

hosted by separate sponsors, the traveler may engage in back-to-back trips, accepting necessary

expenses from the first sponsor for its part of the trip, and proceeding directly to the site of the

second event, with necessary expenses assumed by the second host. In such a case, the day limit

begins anew with the assumption of expenses by the second sponsor.

Example 32. Senator S, from the Midwest, is invited to give a speech in Boston. He

may accept airfare from Washington to Boston and then from Boston back to his home

state. He may not accept additional airfare to return home by way of Los Angeles since

that is not the normal route.

Example 33. Staffer T, who advises her employing Member on environmental issues, is

invited by an oil company to inspect its offshore drilling facilities and pollution control

48 SENATE ETHICS MANUAL

preparedness. The company proposes to have the staffer (accompanied by her spouse)

fly from Washington to Alaska on Monday, arriving at 3 p.m., tour facilities on Tuesday

through Sunday, and fly back on Monday afternoon, departing at 2:30. Assuming that

the Member agrees in writing that this trip is directly related to the staffer’s official duties and would not create the appearance that the staffer is using public office for private

gain, and that attendance of the spouse is appropriate, the staffer may accept expenses

for herself and her spouse.

Example 34. A private university invites Staffer U to participate in a five day conference

in Taiwan. After the conference ends, U wishes to take a week’s vacation in Hong Kong.

U may accept reimbursement from the university for his expenses in Taiwan and for the

cost of round trip airfare to and from Taiwan. U may then continue his travels at his

own expense.

Example 35. Organization A invites Senator V to do fact-finding at its facilities in Miami

on Tuesday and Wednesday. Organization B acting independently invites Senator V to

participate in a conference in Orlando on Thursday and Friday. Senator V may fly to

Miami and stay over Tuesday and Wednesday night at A’s expense and accept expenses

from B for Thursday, Friday, and the flight home on Saturday. Either A or B may pay

for the trip from Miami to Orlando. Reimbursements may never exceed actual expenses,

of course.

Example 35A. Staff D, an employee of the Energy Committee, is scheduled to travel

on official business to Arizona. An outside organization independently invites Staffer D

to participate in an event scheduled in Oregon. The Oregon event concludes a day before

Staffer D is scheduled to begin official business in Arizona. Staffer D may arrange for

the outside organization to fly her from Washington, D. C. to Oregon and then to her

next point of business in Arizona. [Note: Since the Arizona trip is necessitated by official

activities, Senate funds must be used to pay for Staffer D’s per diem expenses in Arizona

and the return flight to D. C.]

The Committee is authorized to permit a Senator or staffer to travel in excess of the time

limits, but will only do so in exceptional circumstances. The fact that a particular trip’s itinerary

happens to extend beyond the limits will not, by itself, lead the Committee to issue a waiver.

The Committee has permitted individuals extra time in the following unusual circumstances: One

trip included lengthy in-country ground transportation (i.e., a two-day train trip to get from one

location in the country to another). In another case, the program was approved and partially funded

by the United States Government. In a third case, the participant provided substantial services (not

mere fact-finding) each day of the trip. The participant in another event was performing services

unrelated to official duties or status, on leave time (i.e., conducting a tour for an alumni association). In one other case, the individual needed an extra day to meet with a foreign country’s president, who was unavailable during the rest of the trip. Any time a Senator or staffer seeks to accept

travel for more than the allotted 3 or 7 days, the individual must secure the advance written permission of the Committee, which will decide on a case-by-case basis whether a waiver is appropriate.

Who May Pay

The provider of the Member, officer, or employee’s travel will in most cases be the sponsor

of the event. However, in certain circumstances, the Committee has found other parties besides

the sponsor to be so closely connected to particular events and their sponsors as to render them

permissible providers of Senate participants’ necessary expenses. The Committee has ruled that

an entity is sufficiently affiliated to the host of an event to provide necessary expenses to a participating Member, officer, or employee if:

1) the group is a member in good standing of the sponsoring organization, or

2) the directors, principal officers, or trustees of the group are the directors, principal officers, or trustees of the sponsoring organization, or

CHAPTER 2 49

81 See Interpretative Ruling No. 410 (Apr. 3, 1986).

82 See Interpretative Ruling No. 422 (Dec. 10, 1987).

83 See Interpretative Ruling No. 124 (May 5, 1978) (Senator may accept hotel accommodations provided free of

charge by hotel to foundation sponsoring speech).

84 See also Interpretative Ruling No. 214 (Dec. 22, 1978).

85 See also Interpretative Ruling No. 75 (Oct. 3, 1977).

86 Art. I, § 9, cl. 8. A similar prohibition on the acceptance of ‘‘emoluments,’’ or compensation, is discussed in

Chapter 2.

3) there is a direct corporate and/or financial relationship between the sponsoring organization and the group. 81

Moreover, if the sponsor independently arranges for a third party to donate transportation, food,

or lodging to enable a Senator or staffer to participate in an event, the Senate participant may

accept such services as necessary expenses from the sponsor. 82 Senators and staffers should not

themselves ask third parties to provide such services.

Example 36. A private college invites Senator A to speak at a seminar it is hosting. The

college administrator explains that one of its trustees is CEO of a company with a corporate jet and has offered the college the use of the jet to transport the Senator. The

Senator may accept the flight, as a necessary expense provided by the college to enable

her to attend.

Example 37. The XYZ Trade Association invites Senator B to address its annual meeting.

Company X, a member of the association, offers to transport B on its corporate jet. Senator B may accept.

Example 38. The W Foundation is holding a conference in Smithtown. W obtains from

the Smith Company, headquartered in Smithtown, the loan of its corporate jet for the

purpose of transporting Senator C, the keynote speaker, between Washington and

Smithtown. Senator C may accept the transportation. 83

Example 39. Senator D wishes to address the V Foundation’s conference in Jonesville,

but the Foundation does not have the resources to provide him with transportation. It

would be inappropriate for Senator D to call his friend, Joe Jones, and ask for the loan

of the Jonesco jet.

As noted above, travel provided by the Senate, or other units of federal, state, or local government

is not subject to the limits of Rule 35 nor the 30-day disclosure of travel expenses under Rule

35. For restrictions on accepting travel from foreign government sources, see below.

Who May Accompany

Under Rule 35.2(d)(4), the sponsor of an event may pay travel expenses not only for the participating Senator or staffer, but also for the spouse 84 or child of the participant 85, if the Senator,

or in the case of the staffer, the staffer’s supervising Senator or officer, signs a determination in

advance that the attendance of the spouse or child is ‘‘appropriate to assist in the representation

of the Senate.’’ The Committee has concluded that necessary expenses which may be paid by the

sponsor of legislative fact finding or other officially related travel by a Member, officer, or employee do not include expenses for any individual (aide, fiance, significant other, etc.) who is not

either the spouse or a child of the Member, officer, or employee.

Gifts and Travel from Foreign Governments and Organizations

Special rules apply to gifts from foreign governments. The United States Constitution prohibits

Government officials, including Members and employees of Congress, from receiving ‘‘any present

. . . of any kind whatsoever’’ from a foreign state or a representative of a foreign government

without the consent of the Congress. 86 Congress has consented, through the vehicles of the ForVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00063 Fmt 5222 Sfmt 5222 SMANUAL.002 ETHICS1 PsN: ETHICS1
50 SENATE ETHICS MANUAL

87 5 U.S.C. § 7342.

88 22 U.S.C. § 2458(a).

89 5 U.S.C. § 7342(c)(1)(A) and (a)(5); see 41 C.F.R. § 101–49.001–5. 90 5 U.S.C. § 7342(c)(1)(B).

91 5 U.S.C. § 7342(c)(1)(B).

92 5 U.S.C. § 7342(c)(2).

93 See Interpretative Ruling No. 406 (Dec. 18, 1985). 94 See Interpretative Ruling No. 216 (Jan. 5, 1979) (Senator on official trip to foreign country may accept transportation, lodging, and hospitality from foreign government in order to visit remote areas of country). 95 See Interpretative Ruling No. 178 (Sept. 29, 1978) (Senate employee may not accept expenses from a foreign

government to participate in a seminar to be held outside the United States); Interpretative Ruling No. 143 (June 14,

1978) (Senate employees may not accept offer to fly to foreign country at the expense of the foreign government in

order to attend treaty ratification ceremony).

eign Gifts and Decorations Act (FGDA) 87 and section 108(A) of the Mutual Educational and Cultural Exchange Act (MECEA) 88 to the acceptance of certain gifts from foreign governments.

The FGDA authorizes acceptance of a gift of minimal value 89 (currently no more than $100

for the Senate) when tendered as a souvenir or mark of courtesy. Additionally, a Member or employee may accept a gift of an educational scholarship or medical treatment from a foreign government. 90 The FGDA further allows a Member or employee to accept (but not to retain) a gift of

more than minimal value when refusal of the gift would cause offense or embarrassment or otherwise adversely affect United States foreign relations. 91 Such gifts, however, are deemed to be accepted on behalf of the United States. Within 60 days of acceptance, the recipient must turn the

gift over to the Secretary of the Senate for use or disposal. 92 The Select Committee on Ethics

may, upon written request, allow such a gift to be retained and used by the recipient during his

or her Senate tenure. 93

In contrast to the general rule of aggregating multiple gifts, and due in part to the special

diplomatic considerations involved in dealing with representatives of foreign governments, the

Committee previously has concluded that multiple items received from a foreign government in

a single presentation (e.g. at a state dinner) need not be aggregated for the purpose of the Foreign

Gifts and Decorations Act. Thus, for example, where a foreign official presents three books to

a Member, office, or employee, and none of the books individually exceeds the ‘‘minimal value’’

threshold of $100, the books would not be aggregated for purposes of applying the Foreign Gifts

and Decorations Act, however, if any one book exceeded the FGDA threshold, that book must

be deposited with the Secretary of Senate, as outlined above.

Both the FGDA and MECEA permit the acceptance of travel expenses under certain limited

circumstances. A Member, officer, or employee may accept travel expenses from a unit of foreign

government only under one of these two statutory grants of authority.

The FGDA stipulates that the travel must take place totally outside of the United States, must

be consistent with the interests of the United States, and must be permitted by the Committee

on Ethics. Pursuant to this authority, the Committee has given its general consent for Members,

officers, and employees traveling outside the United States to accept ‘‘in-country’’ expenses from

the host country government in connection with official duties, provided the 7 day limitation on

provision of such expenses is observed. The Member, or in the case of a staffer, the supervising

Member, must make the determination that acceptance of such ‘‘in-country’’ travel expenses is

in the interests of the United States. The intent of this provision is to allow an individual who

is already overseas (as on a CODEL) to take advantage of fact-finding opportunities offered by

the host country. 94 Therefore, under the FGDA, the Member or employee may not accept expenses

for transportation from the United States to the foreign destination or back home again. 95 Nor

may this rule be circumvented by having a foreign government pay for transportation to or from

a point just outside the United States border.

CHAPTER 2 51

96 5 U.S.C. § 7342(c)(3).

97 5 U.S.C. § 7342(c)(3).

98 22 U.S.C. § 2452(a)(2)(i).

99 22 U.S.C. § 245(a)(1). See Interpretative Ruling No. 261 (May 22, 1979). 100 Id. 101 See Chapter 5 for details of financial disclosure requirements.

A gift of travel permitted under the FGDA and accepted by a Member or employee must

be disclosed within 30 days after leaving the host country. 96 The Committee provides forms for

this purpose (see Appendix G). Tangible gifts of more than minimal value must be disclosed at

the time of deposit of the gift with the Secretary of the Senate. 97 The FGDA also covers gifts

from ‘‘quasi-governmental’’ organizations closely affiliated with, or funded by, a foreign government (so that they are ‘‘deemed to be’’ a foreign government), as well as any international or

multinational organizations with membership composed of foreign governments (such as NATO

or the U.N.).

Section 108A of the Mutual Educational and Cultural Exchange Act authorizes the Director

of the United States Information Agency to approve cultural exchange programs that finance ‘‘visits and interchanges between the United States and other countries of leaders, experts in fields

of specialized knowledge or skill, and other influential or distinguished persons. . .’’ 98 Members

and employees of the Senate may accept travel expenses from a foreign government in order to

participate in approved MECEA programs. 99 Expenses for MECEA trips sponsored as part of programs approved under Section 108A are not considered gifts, either for the purposes of the Senate

Gifts Rule (and are therefore not subject to the 7 day time limit) or the FGDA. Under MECEA,

however, the traveling Member or employee may not accept travel expenses for a spouse or family

member. 100 While travel expenses accepted under the FGDA are reported separately on specialized

forms, expenses accepted as part of a program approved under Section 108A of MECEA must

be disclosed only in the Reimbursement section of the annual Financial Disclosure form filed pursuant to Senate Rule 34. Rule 35 reporting (forms RE–1/2, RE–3) is not required for Section 108A

MECEA travel.

Example 40. A private foundation invites Senator E on a fact-finding trip to China. Senator E may accept expenses for travel to and from China and up to 7 days’ food and

lodging within China for herself and her spouse, if the Senator makes a written determination that her spouse’s attendance is appropriate to assist in the representation of the

Senate. She must disclose the trip under the category of Reimbursements on her annual

Financial Disclosure form. 101 In-country expenses paid by the government of China must

be reported under the Foreign Gifts and Decorations Act.

Example 41. The Chinese Agricultural Ministry invites the Members of the Agriculture

Committee on a six-day tour of Chinese farm cooperatives. The tour is not part of an

approved cultural exchange program. The Members may, consistent with the FGDA, accept expenses for themselves and their spouses while they are in China, but they may

not accept airfare to and from China from the Chinese government. They must disclose

the receipt of these expenses for themselves and their spouses on an FGDA reporting

form within 30 days of leaving China. They need not repeat the disclosure on their annual Financial Disclosure forms.

Example 42. A public university in China invites Senator F to attend a two-week seminar and discussion series with Chinese leaders at the school. This program has been approved by the United States Information Agency, under MECEA. Senator F may accept

expenses for travel to and from China and related expenses for his two-week stay. If

he wishes to bring his spouse, he must do so at personal expense, as the MECEA does

not permit payment of spousal travel expenses. He must disclose the trip under the category of Reimbursements on his annual Financial Disclosure form.

Example 43. A foreign ambassador invites Senate employee G to fly from the United

States to the foreign country at the expense of the foreign government to attend a treaty

ratification ceremony. Since the trip is not part of a MECEA program and does not comVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00065 Fmt 5222 Sfmt 5222 SMANUAL.002 ETHICS1 PsN: ETHICS1
52 SENATE ETHICS MANUAL

102 Interpretative Ruling No. 143 (June 14, 1978). See also Interpretative Ruling No. 167 (Aug. 10, 1978) (staffer

prohibited from accepting travel expenses from foreign political party to attend inauguration of foreign president).

ply with the terms of the FGDA because it begins and ends within the United States,

G must decline. 102

‘‘Lame Duck’’ Travel

Senate Rule 39.1 bars United States government-funded foreign travel, by any Senator whose

term will expire at the end of a Congress, after:

1) the date of the general election in which his or her successor is elected; or

2) if the Member is not a candidate in the general election, the date of that election or

the adjournment sine die of the second regular session of that Congress, whichever is earlier.

Employees of these Senators (whether personal office or committee) are subject to the same

restrictions, as are officers and committee employees whose employment will terminate at the end

of a Congress.

FREQUENT FLYER MILES

Pursuant to Senate Rules Committee travel regulations, discount coupons, frequent flyer mileage, or other evidence of reduced fares, obtained on official travel shall be turned into the office

for which the travel was performed so that they may be used for future official travel. This regulation is based upon the general government policy that promotional materials earned as a result

of trips paid by appropriated funds are the property of the government and may not be retained

by the traveler for personal use (See the U.S. Senate Handbook, II–44). The 1999 Legislative

Branch Appropriations Bill provides an exception for frequent flyer miles relating to air transportation for a Member of the Senate, the spouse of that Member, or a son or daughter of that Member, between the Washington metropolitan area and the state of that Member. Any questions about

the application of this provision should be directed to the Senate Rules Committee. While the law

was changed with respect to use of frequent flier miles by employees in the Executive Branch,

that change did not affect the prohibition on personal use of such miles by Senate employees.

CHAPTER 2 53

Travel Summary

***************

Reminder: Lobbyists, lobbying firms, and foreign agents may not pay the necessary expenses of travel.

***************

Source Authority Time Limit Reporting

Domestic Government (Federal,

State, or local)

Senate Rule 35; I.R.

No. 157; I.R. No.

444..

None For employee, internal approval

by supervising Senator, but no

reporting to Secretary of the

Senate or to the Ethics Committee

Foreign Government § 108(A) of Mutual

Educational and

Cultural Exchange Act

(MECEA);.

None, but may not accept travel expenses

for family member or

aide.

Annual Ethics in Government

Act (EIGA) financial disclosure statement

Foreign Government Foreign Gifts and

Decorations Act.

7 days foreign, excluding

travel time; may not

accept travel to or

from the U.S..

An FGDA report form must be

filed with the Ethics Committee

Private source (person, organization

or corporation)

Senate Rule 35.2 3 days domestic, 7 days

foreign, excluding

travel time.

For employee, advance authorization by supervising Member; for Members and employees, disclosure of expenses to Secretary of Senate

within 30 days. For filers, no

annual EIGA financial disclosure statement if expenses exceed $250, unless previously

reported pursuant to the 30

day rule. For senatorial

spouses traveling independently in an officially related

capacity, disclose expenses

under Senate Rule 34 (Financial Disclosure, Reimbursement Section), rather than

under Rule 35.2.

54 SENATE ETHICS MANUAL

OTHER PROHIBITED GIFTS FROM LOBBYISTS, LOBBYING FIRMS, AND FOREIGN

AGENTS

In addition to the restrictions on lobbyists, lobbying firms, and foreign agents discussed above,

Rule 35.3 prohibits the following:

(a) Anything provided by a registered lobbyist or an agent of a foreign principal to an

entity that is maintained or controlled by a Member, officer, or employee.

(b) A charitable contribution (as defined in section 170(e) of the Internal Revenue Code

of 1986) made by a registered lobbyist or an agent of a foreign principal on the basis of a

designation, recommendation, or other specification of a Member, officer, or employee (not

including a mass mailing or other solicitation directed to a broad category of persons or entities), other than a charitable contribution permitted by paragraph 4 of Senate Rule 35, regarding payments in lieu of honoraria to charities not maintained or controlled by a Member, officer, or employee.

(c) A contribution or other payment by a registered lobbyist or an agent of a foreign principal to a legal expense fund established for the benefit of a Member, officer, or employee.

(d) A financial contribution or expenditure made by a registered lobbyist or an agent of

a foreign principal relating to a conference, retreat, or similar event, sponsored by or affiliated

with an official congressional organization, for or on behalf of Members, officers, or employees.

This section generally prohibits indirect gifts by lobbyists and foreign agents to Members, officers, and employees, by prohibiting gifts from lobbyists and foreign agents to entities controlled

by, designated by, or established for the benefit of Members, officers, and employees (this prohibition includes contributions in lieu of honoraria, see Chapter 3, discussion of Honoraria Ban). Entities maintained or controlled by a Member, officer, or employee could include, for example, charitable trusts or other organizations where a Member sits on the board of directors. Whether an organization is ‘‘maintained or controlled’’ by a Member is a decision which will be made by the

Committee on a case-by-case basis.

Additionally, a contribution to any charity from a lobbyist or foreign agent based upon the

recommendation of a Member, officer, or employee may be deemed a gift to the Member, officer,

or employee. There are exceptions for mass mailings; solicitations directed to a broad range of

persons or entities; and payments in lieu of honoraria made by a lobbyist or foreign agent to charities not maintained or controlled by a Member, officer, or employee, if the payment is reported

as discussed below.

Often, a Member is asked to lend his or her name to a fundraising effort by a charity (or

other non-profit organization where no compensation or other economic benefit accrues to the

Member; see Interpretative Ruling 438), by allowing the Member’s name to appear on the letterhead used to solicit donations, by signing or permitting the Member’s name to be used in the

actual solicitation, or by making a personal appeal on behalf of the charity at a fundraising event.

(See also the section on ‘‘Senate Letterhead’’ in Chapter 7 for prohibitions on its use.)

The Committee has determined that a Member who does nothing more than allow his or her

name to appear on fundraising letterhead, for example, as honorary chair, or host, has not solicited

a contribution from anyone, but that a Member does make a solicitation when he or she signs

the fundraising letter, or allows his or her name to appear in the body of the fundraising letter

as supporting or endorsing the fundraising effort. A Member who makes a personal appeal at a

charitable fundraiser would clearly be making a solicitation for charitable contributions.

Under the Rule, contributions to charity that are made as the result of a solicitation by a Member or employee are not deemed to be prohibited gifts to the Member or employee, unless the

CHAPTER 2 55

103 See Interpretative Ruling No. 444.

contributions are made by lobbyists or foreign agents. In the case of large, organized fundraising

efforts, however, it is not practical for a Member to review the mailing list, or the list of expected

guests, to determine if any lobbyists are included in the group. Nor would it seem fair to penalize

a Member who makes an appeal at a charitable fundraising event and then discovers that there

are one or more lobbyists in the assembled group.

In this regard, the Rule specifically allows mass mailings or other charitable solicitations directed to a broad category of persons or entities. The Committee will rely, in part, on the meaning

of the term ‘‘mass mailing’’ in the franking statute: that is, Members may participate in charitable

solicitations by means of mailings or other solicitations to 500 or more. In addition, because the

Rule also permits other charitable solicitations directed to a broad category of persons or entities,

a Member may make a solicitation in connection with a charitable fundraising event, whether by

mail or in person at a fundraising event, so long as the group of prospective donors is sufficiently

large (50 or more), and the Member has no reason to believe that the solicitation is targeted specifically at lobbyists or foreign agents. Regardless of the number of persons being solicited, however, Members should refrain from making any solicitation on behalf of a charity, aimed or directed specifically at lobbyists or foreign agents.

In addition, lobbyists and foreign agents may not make any contribution or expenditure relating to an event ‘‘sponsored by or affiliated with an official congressional organization,’’ such as

a staff retreat or conference. It should be noted in this context, however, that Rule 38 already

prohibits any third party from making any contribution or expenditure to defray expenses related

to an official or officially related event. 103

DETERMINING THE SOURCE OF A GIFT

The Gifts Rule prohibits Members and employees from accepting gifts from the same source

during a calendar year of an aggregate value greater than $99.99. This raises the question of

whether each individual member or employee of an organization (corporation, partnership, association, professional corporation, limited partnership, or other form of business) has a separate aggregate limit, or whether each gift coming from an affiliate of the same organization is aggregated

as a gift from the organization.

The Committee has defined ‘‘source’’ for these purposes to include the organization with

which the paying individual is affiliated. Thus, an individual who gives a Member or staffer a

gift, as well as his or her affiliated organization, will both be considered to be the source of a

gift, for purposes of reaching the $99.99 aggregate, unless the individual providing the gift is doing

so based on personal friendship with the Member or staffer, and is paying personally for the meal,

without receiving reimbursement from the organization. That is, an employee of ABC Co. who

takes a Member to lunch will be presumed to be doing so on behalf of ABC Co., and the value

of the meal will count toward the aggregate of the individual and also his employer, ABC Co.,

unless the personal friendship exception applies. Thus, every organization, regardless of the number of employees, partners, members, or the like, will be able to provide a total of only $99.99

in meals or other gifts to any particular Member or staffer during a calendar year.

Often, a Member or staffer will be invited to a meal by two or more persons from the same

organization, who then split the bill. In this situation, the entire value of the meal should be considered to be a gift from the organization, and counted toward the organization’s and each of the

individuals’ $99.99 aggregate for the year.

If the persons are from different firms, however, with each paying for one-half of the meal,

the Member or staffer should still treat the meal as one gift, and then attribute the entire value

of the meal to one of the persons and his or her employer for purposes of complying with the

$49.99 limit for a single gift, and staying within the $99.99 limit for the calendar year. Also, while

56 SENATE ETHICS MANUAL

the Committee generally recognizes the seperate legal status of related entities (e.g. a parent and

its subsidary entity will be treated as distinct sources for purposes of the Gifts Rule), such entities

will NOT be accorded seperate source status if the entities are acting in concert or as agent for

the other with respect to a particular gift.

SUMMARY OF GIFTS PROVISIONS RELATED TO SENATE SPOUSES

In General

Unlike the previous Gifts Rule, the current Gifts Rule places no restrictions on the acceptance

of gifts by spouses. However, the Rule does provide that a gift to any family member (or any

other individual based on the individual’s relationship with the Member, officer, or employee) will

be considered a gift to the Member, officer, or employee:

if it is given with the knowledge and acquiescence of the Member, officer, or employee

and the Member, officer, or employee has reason to believe the gift was given because of

the official position of the Member, officer, or employee.

See Section 1(b)(2)(A). Thus, for example, a spouse could accept gifts from his or her friends

and business associates; but any gift that is given to a spouse because of his or her status as the

spouse of a Member, officer, or employee, with the knowledge or acquiescence of the Member,

officer, or employee, would be subject to the limitations of the Rule and would be a gift to the

Member, officer or employee.

Food and Refreshments

The Rule also provides that if food or refreshment is provided at the same time and place

to a Member, officer, or employee and his or her spouse or dependent, only the food and refreshment that is offered to the Member, officer, or employee will be treated as a gift for purposes

of the Rule. See Section 1(b)(2)(B). In other words, if an individual invites a Member and her

husband to dinner, the Member’s meal is treated as a gift to the Member, but her husband’s meal

is not.

Spouse’s Outside Business/Employment Activities

The Rule also provides that food, refreshments, lodging, and other benefits that result from

a spouse’s outside business or employment activities or other outside activities not connected to

the Member, officer, or employee’s duties will not be subject to the restrictions of the Rule, if

these benefits have not been enhanced because of the Member, officer, or employee’s position,

and they are customarily provided to others in similar circumstances. See Section 1(c)(7). Thus,

for example, a Member’s attendance at a Christmas dinner-dance hosted each year by his wife’s

employer, for employees and their spouses, will not be subject to the restrictions of the Rule.

Accompaniment at a Widely Attended Event

The Rule also provides that a Member, officer, or employee may accept an unsolicited offer

of free attendance at a widely attended event from the sponsor of the event for an accompanying

individual (which may be a spouse) if others at the event will generally be similarly accompanied,

or if the attendance of the accompanying individual is appropriate to assist in the representation

of the Senate. See Section 1(d)(2).

The spouse of a Member can participate in activities and events unaccompanied by a Member

in a quasi-official or officially related capacity. Thus, where an event meets the Gifts Rule requirements relating to widely attended events such that a Member may attend an event, the spouse

CHAPTER 2 57

104 Members and staffers may not, however, solicit charitable contributions from registered lobbyists or foreign

agents, lest any resulting contribution from the lobbyist or foreign agent be deemed a gift to the Member or staffer

who made the solicitation. Rule 35.3(b). 105 See Interpretative Ruling No. 438 (July 16, 1990). See also Senate Rule 41, which largely limits political solicitation by Senate staff to three political fund designees in each Senator’s employ. Rule 41 is discussed in more detail

in Chapter 5.

of a Member may attend the event unaccompanied by the Member, provided that the Member

makes a determination that the attendance of the spouse is appropriate to assist in the representation of the Senate.

Non-Recreational Charity Events

A spouse or dependent of a Member, officer, or employee may also accept an unsolicited offer

of free attendance from the sponsor of a charity event, even if there is reason to believe that the

invitation is extended because of an individual’s status as the spouse or dependent of such Member, officer, or employee. However, in these circumstances the spouse or dependent may accept

reimbursement from the sponsor for transportation and lodging only if the charity event is not

substantially recreational in nature. See Section 1(d)(3).

Reimbursable Travel

Finally, the Rule provides that a Member, officer, or employee may be reimbursed by an individual (other than a registered lobbyist or foreign agent) for the necessary transportation, lodging,

and related expenses of a spouse or child who travels with the Member, officer, or employee on

an officially related trip, if the Member or officer (or in the case of an employee, the supervising

Member or officer) signs a written determination that the attendance of the spouse or child is appropriate to assist in the representation of the Senate. See Section 2(d)(4). A senatorial spouse traveling independently of the Senator in a quasi-official or officially related capacity, should disclose

reimbursed expenses under Senate Rule 34 (Financial Disclosure, Reimbursement Section), rather

than under Rule 35.2.

SOLICITATION OF GIFTS

As part of the Ethics Reform Act of 1989, Congress enacted a new, government-wide ban

on solicitation, codified at 5 U.S.C. § 7353. This provision for the first time limited not only what

government officials could accept but also that which an official could solicit.

Section 7353 states, in pertinent part:

(a) Except as permitted by subsection (b), no Member of Congress or officer or employee

of the executive, legislative, or judicial branch shall solicit or accept anything of value

from a person—

(1) seeking official action from, doing business with, or . . . conducting activities regulated by, the individual’s employing agency; or

(2) whose interests may be substantially affected by the performance or nonperformance

of the individual’s official duties.

Subsection (b) authorizes this Committee to issue implementing rules or regulations for the Senate,

‘‘providing for such reasonable exceptions as may be appropriate.’’ The Senate Gifts Rule, as interpreted by this Committee, defines that which Members, officers, and employees may accept.

No rule or law authorizes a Member, officer, or employee of the Senate to solicit anything of

value. The Committee has ruled, however, that section 7353 restricts only soliciting or accepting

gifts directly or indirectly for oneself. Thus, Members and staffers may solicit for charitable organizations 104 and campaign committees without violating section 7353 or the Senate Gifts Rule. 105

58 SENATE ETHICS MANUAL

106 18 U.S.C. § 201(b)(2)(A). 107 18 U.S.C. § 201(c)(1)(B). 108 United States v. Brewster, 506 F.2d 62, 72 (D.C. Cir. 1974). 109Black’s Law Dictionary 688 (6th ed. 1990). 110 18 U.S.C. § 201(b). 111 18 U.S.C. § 201(c).

BRIBERY AND ILLEGAL GRATUITY

Section 7353 of Title V generally bars solicitation and acceptance of gifts, except as permitted

by the Committee on Ethics. Where the solicitation or acceptance is tied to an official act, however, the U.S. Criminal Code comes into play. The federal bribery statute makes it a crime for

a public official, including a Member or employee of the Senate, to ask for or receive gifts,

money, or other things of value in connection with the performance of official duties. Bribery occurs when a federal official ‘‘directly, or indirectly, corruptly’’ receives or asks for ‘‘anything of

value personally or for any other person or entity, in return for . . . being influenced in the performance of any official act.’’ 106 The lesser offense of illegal gratuity results when an official

directly or indirectly seeks or receives personally anything of value other than ‘‘as provided by

law . . . for or because of any official act performed or to be performed.’’ 107 The United States

Court of Appeals for the District of Columbia Circuit discussed the distinguishing features of the

two sections:

The bribery section makes necessary an explicit quid pro quo which need not exist if

only an illegal gratuity is involved; the briber is the mover or producer of the official

act, but the official act for which the gratuity is given might have been done without

the gratuity, although the gratuity was produced because of the official act. 108

Both clauses require as an element of the offense that the thing of value be related in some

manner to an official act, that is, the thing of value must be offered or requested either ‘‘in return

for being influenced in’’ or ‘‘for or because of’’ an official act. In United States v. Sun-Diamond

Growers of California, 526 U.S. 398 (1999) the Supreme Court confirmed that in order to show

a violation of the illegal gratuity provision, the Government must prove a link between a thing

of value conferred upon a public official and a specific official act for or because of which it

was given. This element—that the thing of value relate to an official act—distinguishes a bribe

or illegal gratuity from a mere gift. A gift, as generally defined, is a ‘‘voluntary transfer’’ of property, made ‘‘without consideration.’’ 109 A bribe induces an official act; an illegal gratuity rewards

or seeks to elicit favorable official action; a gift has no connection to any official act.

Example 44. Lobbyist U offers Senator H a substantial campaign contribution if H will

introduce certain legislation. U has violated the bribery law, as will H if H accepts.

Example 45. Senator I introduces S. 007 and manages the bill through passage solely

because I believes the legislation will be good for the country. Lobbyist T also favors

the legislation because it will benefit his clients. Lobbyist T sends Senator I a color television set, with a note saying, ‘‘In appreciation for your good work on S. 007.’’ The

television is an illegal gratuity.

Example 46. In mid-December, a trade association sends a basket of fruit (valued at

under $50) to Senator Claus’ office, with a note saying, ‘‘Season’s Greetings to Senator

Claus and staff.’’ The fruit is an acceptable gift.

Example 47. Caseworker J helps S, a new immigrant to the district, get a ‘‘green card.’’

The following week, J receives a crystal vase, with a note from S saying, ‘‘I’ll never

be able to repay you for what you’ve done for me.’’ J must return the vase; it is an

illegal gratuity.

A person found guilty of bribery may be fined up to 3 times the value of the bribe, imprisoned for up to 15 years, and disqualified from holding any federal office. 110 A person found guilty

of seeking or receiving an illegal gratuity may be fined and/or imprisoned for up to two years. 111

Violation of these laws may also lead to disciplinary action by the Senate.

CHAPTER 2 59

112 Senator Williams was convicted of conspiracy (18 U.S.C. § 371), bribery (U.S.C. § 201(c)), receipt of illegal

gratuities (18 U.S.C. § 201(g)), conflict of interests (18 U.S.C. § 203(a)), and interstate travel in aid of a racketeering

enterprise (18 U.S.C. § 1952). 113 Investigation of Senator Harrison A. Williams, Jr., Report of the Select Committee on Ethics, United States

Senate, to Accompany S. Res. 204, 97th Cong., 1st Sess. 7 (1981). 114 May v. United States, 175 F.2d 994 (D.C. Cir.), cert. denied, 338 U.S. 830 (1949). Indeed, if an employee is

acting outside his or her official duties, the employee may not act as anyone’s agent or attorney before any Federal

agency or officer in a matter in which the United States has an interest, whether or not compensation is received. 18

U.S.C. § 205(a). This statutory provision is discussed in Chapter 3. 115 18 U.S.C. § 211. 116 See Interpretative Ruling No. 251 (Apr. 27, 1979). 117 See Interpretative Ruling No. 31 (June 16, 1977); Interpretative Ruling No. 327 (July 1, 1980).

In the 96th and 97th Congresses, the Committee investigated charges, arising out of the Department of Justice’s ‘‘ABSCAM’’ probe and the subsequent conviction of Senator Harrison A.

Williams, Jr. (NJ) of bribery and related charges. 112 The Committee found that Senator Williams

had violated federal law and Senate Rules 34 (financial disclosure) and 37 (conflict of interest)

and had engaged in improper conduct which reflected adversely upon the Senate. Specifically, the

Committee found that the Senator had offered to use his official influence to obtain government

contracts for a business venture in which he had a personal financial interest and offered to introduce a private immigration bill on behalf of a purported wealthy foreigner in order to induce that

person to invest in the business. After a hearing, the Committee unanimously recommended his

expulsion from the Senate. 113 A vote of the full Senate was scheduled, but the Senator resigned

before it took place.

In addition to the bribery and illegal gratuities statute, several other provisions of the Federal

Criminal Code restrain Members and staffers from accepting private compensation in matters of

federal concern. Section 203 of Title 18 prohibits Senate Members and employees from accepting

compensation for representing anyone before a federal department, agency, officer, or court in any

particular matter in which the United States is a party or has a direct and substantial interest. Even

if Members and employees are acting properly and within their official capacities, they may not

receive compensation, other than their congressional salaries, for acts before a unit of federal government. 114 Nor may an individual solicit or receive anything of value (including campaign contributions) in return for supporting someone for, or using influence to obtain for someone, a federal

job. 115 A Member, officer, or employee should, therefore, be wary of accepting any gifts, favors,

contributions, or entertainment from persons whom the Member or staff has assisted with dealings

with the agencies of the federal government.

VALUATION OF CERTAIN GIFTS

Generally, for the purpose of the Gift Rule, items are valued at their fair market value, and

at their retail, rather than wholesale prices. 116 Often an item may be priced differently at different

stores. In determining whether a particular gift may be accepted, a Member, officer, or employee

may use the lowest price at which the item is available to the general public at retail.

Tickets to Fundraisers. The value of the gift to the donee is the face value of the ticket.

Season Passes. The value of a season pass (e.g., for sporting or cultural events) is the full

market value at the time it is accepted, undiminished by any subsequent failure to use the pass

or any portion of it. Thus, if the pass has a market value in excess of the gift limit at the time

it is offered, it may not be accepted, even if the recipient does not intend to attend every event. 117

Similarly, a pass for several days’ worth of entertainment (e.g., an amusement park pass or ski

lift pass good for a set number of days) is valued at its total cost, and is not viewed as separate

gifts, with separate limits each day.

Tickets to Seats in Performance Arenas. The value of a ticket to a seat in a performance

arena, including a sky or luxury box, club seat, or other similar seat, is the face value of the ticket,

60 SENATE ETHICS MANUAL

118 See Interpretative Ruling No. 412 (Aug. 11, 1986). 119 See Interpretative Ruling No. 201 (Nov. 27, 1978).

plus the fair market value of any attendant food or parking privileges, but if the ticket has no

face value, the value will be the price of the seat in closest proximity bearing a face value, plus

the fair market value of any attendant food or parking privileges. In the case of box seats, this

ruling applies where the attendee is sharing the use of the box with others and is not getting exclusive use of the box. The Committee will not recognize as fair market value for a club seat or

other luxury or box seat a ‘‘stamp-on’’ or ‘‘stick-on’’ price label affixed other than as part of

the original printing of the ticket. That is, add-on price stamps or stickers which purport to value

a previously printed ticket not bearing a ‘‘face’’ value as originally printed, may not be relied

upon for purposes of applying the Gifts Rule.

Club Memberships. Club memberships typically involve an initiation fee or equity contribution, annual or monthly dues, and facility or service usage charges. ‘‘Honorary’’ club memberships

usually involve a waiver or reduction in the normal level of fees, contributions, dues or charges

levied on members. They might also contemplate limited club usage and limited or no voting or

equity rights.

The Committee has determined that for purposes of the new Gifts Rule and Rule 34 on disclosure, an honorary club membership will be valued at what it would cost an individual receiving

no waiver or reduction to purchase club benefits or access equivalent to that provided with the

honorary membership, without regard to anticipated or actual usage, and without regard to whether

voting or equity rights are received.

Thus, an honorary club membership will be valued at the total market price of the club’s normal initiation fee or equity contribution, annual or monthly dues, and facility or service usage

charges, with no diminution in value for lack of usage, voting rights, or equity interest. The value

of any gift which results from acceptance of an honorary membership should be the total market

price of whatever membership price components are accepted during the calendar year, less any

amounts paid by the honorary member during the calendar year. Like season passes, memberships

in clubs (e.g., country clubs, athletic clubs, eating clubs) are valued at their full market value at

the time of joining, that is, what it would cost anyone else to join, including any initiation fees.

Example 48. Senator L is offered a complementary membership in a health club. Normally, new members are assessed an initiation fee of $45 and annual dues of $500. The

Senator may not accept the membership.

Private Air Travel. Travel on private planes (or helicopters) is valued as follows, both for

purposes of the Gifts Rule and the financial disclosure statute. If the cities between which the

Member or employee is flying have regularly scheduled air service, regardless of whether such

service is direct, then the value of the use of a private aircraft is the cost of a first-class ticket

from the point of departure to the destination. If there is no first class service, then the standard

(coach) rate is used. If there is no regularly scheduled air service, then the value of the gift is

the cost of chartering the same or a similar aircraft. 118 If a group of people are traveling between

cities with no regularly scheduled service, then the value to each person is his or her proportionate

share of the cost of chartering.

Group Gifts.

a. Several individuals contribute to one gift/one sponsor bundles several smaller gifts. If a number of individuals gives a present to a Member, officer, or employee, the

gift’s total value will be apportioned among the individuals only if the individuals are acting

as individuals and not as or on behalf of a group. An organization or group, however, may

not circumvent the gift limit by purporting to give an item on behalf of its employees or members. 119 Moreover, if one source bundles together a number of smaller gifts from other

CHAPTER 2 61

120 See Interpretative Ruling No. 94 (Jan. 24, 1978).

sources, often referred to as a ‘‘goody bag’’, the Committee will view the entire package as

a single gift from the presenter, worth the sum of all its parts.

Example 49. Ten friends of Senator M chip in $30 apeice to buy M a birthday present.

Although the total value is $300, this is considered a gift worth $30 from each person

and is within the gift limit.

Example 50. A trade association with 100 members offers Senator N a gift worth $1,000,

with a note saying, ‘‘From the members of Association R.’’ Senator N may not accept,

as this is a single gift from the association.

Example 51. A charitable foundation sponsors a celebrity tennis tournament featuring

athletes, actors, and business leaders, along with a few Senators. The foundation offers

to all participants a package or so-called ‘‘goody bag’’ consisting of $400 worth of tennis

accessories from a number of corporate contributors to the foundation. The Senators may

not accept the package, as it comprises a single gift from the foundation.

In construing this principle, as always, Members, officers, and employees must observe both

the letter and the spirit of the Gift Rule. Gifts may not be artificially broken down, either by donors (as in the trade association example above) or in substance. Thus, a set of golf clubs is valued

at the price of the set, even if it is given one club at a time. Similarly, a Member or employee

could accept a movie ticket with a face value of less than $10 without counting it toward the

$100 aggregate; accepting a ticket worth less than $10 from the same source every week, however,

would violate the spirit of the Rule. 120

b. Gifts of Food and Meals. A question about value is also presented when a group of

Senate employees receives a gift of food from an individual outside the Senate. The Committee

has historically distinguished the provision of ‘‘food’’ from the sharing of a ‘‘meal,’’ and this distinction is reflected in the Committee’s handling of gifts of food. The Committee has previously

concluded that a gift of food sent to a group of employees in a Senate office is one gift to the

Senator whose office receives the food, and the value of the gift is the total fair market value

retail of the food. Thus, if a lobbying firm wished to send pizza to staff members in a Senate

office, the value of the gift to the Senator whose office is involved would be the full cost of

the pizza, and could be accepted only if that total value is less than $50. For further discussion

of food and meal gifts, see discussion of the divisibility of gifts in this chapter under ‘‘What is

a Gift’’.

c. Parties and Receptions. Another area of activity which generates questions about

‘‘value’’ in the group context is that of parties or receptions. When a Senate Member, officer,

or employee leaves the Senate, for example, it is not uncommon for a group of his or her friends

to sponsor a party or reception in honor of the Member, officer, or employee. Section 1(c)(11)

of the Gifts Rule excepts nonmonetary awards from coverage by the Rule’s gift limits, along with

any food, entertainment, or refreshments associated with presentation of the award. Based upon

this section of the Rule, the Committee has concluded that the cost of an event at which an individual is honored is not a gift to the honoree. Thus, an individual who is leaving the Senate may

be honored at an event and the only gift which the individual will be deemed to receive is the

total value of whatever food and drink the individual consumes at the event. Those Senate Members, officers, or employees who are sponsoring the event to honor the departing employee may

share the cost of the event among themselves in any manner (see Rule 35 (1)(c)(6)) which does

not violate the Gifts to Superiors statute (5 U.S.C. 7351). In this regard, the Committee has ruled

that a Member may use principal campaign committee funds to pay for an office party for a departing staffer and may purchase a commemorative item for the staffer in recognition of the staffer’s service to the Senate (See Interpretative Ruling 330). Also, a reception sponsored by an outside entity in honor of an entire office or committee will not be treated as a gift to the Member

or Chairman. The value of any gift received by an individual attending the reception is the value

62 SENATE ETHICS MANUAL

121 5 U.S.C. app. § 102(a)(2).

122 5 U.S.C. app. § 102(e)(1).

of the food or beverages consumed by the individual; depending upon the facts, the event may

qualify as either a ‘‘reception,’’ under section 1(c)(22), or as a ‘‘widely attended’’ event under

section 1(c)(18).

Taxes As Part of the Value of a Gift.

The Committee has previously ruled that for purposes of the Gifts Rule, the value of an item

did not include taxes that would be imposed on the sale of the item. This policy will continue

under the Gifts Rule, and gratuities will be treated the same as taxes for purposes of determining

the value of a gift.

FINANCIAL DISCLOSURE OF GIFTS

Under the Ethics in Government Act of 1978, as detailed in Chapter 5, Members and certain

employees of the Senate must disclose information in annual financial statements, including the

donor, description and value of all gifts aggregating $250 or more from a single source in a single

year. 121 Additional information on certain gifts received by the spouse or dependent of the Member or employee may also need to be filed. 122 Further, as noted above, tangible gifts of over minimal value that may be received from foreign governments must be disclosed at the time such gifts

are required to be turned over to the United States, that is, within 60 days of receipt; and gifts

from foreign governments of travel or expenses for travel outside the United States must be reported within 30 days of departure from the host country.

The fact that a gift must be disclosed under the Ethics in Government Act (Senate Rule 34)

has no bearing on whether the gift may be accepted under the Gifts Rule (Senate Rule 35). In

other words, disclosing the acceptance of a gift does not mean that the gift was necessarily acceptable.

(63)

Chapter 3: CONFLICTS OF INTEREST AND OUTSIDE EARNED

INCOME

Introduction ......................................................................................................................... 64

Overview .............................................................................................................................. 64

Conflicts of Interest ............................................................................................................. 66

The Basic Principles ..................................................................................................... 66

Legislative Action ......................................................................................................... 69

Staff Holdings ............................................................................................................... 70

Professional/Fiduciary Restrictions .................................................................................... 71

The 90-Day Affiliation Rule for Employees and Per Diem Employees .................... 74

Officer, Board, or Advisory Service ............................................................................. 74

Service by a Senate member, officer, or employee on a Legislative Branch

Commission ............................................................................................................... 76

Establishment of a Charitable Foundation ................................................................ 77

Teaching ........................................................................................................................ 79

Legal Practice ............................................................................................................... 80

Representing Others Before Federal Government ............................................................ 80

Contracting with the Federal Government ....................................................................... 82

Dual Government Employment .......................................................................................... 84

Campaign Work ................................................................................................................... 84

Holding State/Local Office ........................................................................................... 85

Holding Federal Office ................................................................................................. 85

Jury Duty ............................................................................................................................. 86

Foreign Governments .......................................................................................................... 86

Post-Employment Restrictions ........................................................................................... 86

Restrictions Under Senate Rule .................................................................................. 87

Restrictions Under Criminal Law ............................................................................... 89

Penalties ....................................................................................................................... 90

Exceptions ..................................................................................................................... 90

Negotiating for Future Employment .......................................................................... 91

Employment Considerations for Spouses .......................................................................... 93

Outside Activity/Income Summary .................................................................................... 95

Outside Earned Income and Honoraria (Rule 36) ............................................................ 97

The 15 Percent Limit (Affecting Members and Senior Staff) .......................................... 97

What is Outside Earned Income? ............................................................................... 97

Honoraria Ban ..................................................................................................................... 98

Definitions ..................................................................................................................... 99

Exclusions ..................................................................................................................... 100

Stipends ........................................................................................................................ 101

Donations to Charity .................................................................................................... 101

64

123 Financial disclosure requirements are discussed in Chapter 4.

Chapter 3

CONFLICTS OF INTEREST (RULE 37)

AND

OUTSIDE EARNED INCOME (RULE 36)

Rules 36 and 37

INTRODUCTION

As early as the mid-nineteenth century, Congress passed federal criminal conflicts of interest

laws prohibiting bribery, defrauding the government, self-dealing, and other corrupt activities by

federal officials including Members of Congress. Congress revised the federal conflicts of interest

laws in 1962, but it was not until 1968, when the Houses of Congress passed initial codes of

conduct, that express limitations and ethical guidelines on outside economic activities and personal

finances governed the activities of Members, officers, and employees. Subsequent rules and statutes were adopted to restrict outside earned income, outside employment, post employment lobbying, and the receipt of honoraria, and also to require annual public financial disclosure by Members, officers, senior staff, and political fund designees. This chapter details the conflicts of interest

rules in the Senate, the restrictions governing outside earned income and the receipt of honoraria,

and the applicable statutory restrictions governing public officials and employees.

OVERVIEW

Federal law and Senate rules restrict the amount and source of outside income that Members,

officers, and employees of the Senate may accept. These limits represent an attempt to preclude

conflicts between the narrow interests of private employers and the broader interests of the general

public. For the most part, these restrictions limit earned income, that is, payments for services

rendered (e.g., wages, fees, commissions), but not returns on investments (e.g., interest, dividends,

rents, royalties). Investment income is subject to fewer restrictions, but must be publicly disclosed

by Senators, officers, and certain staffers. 123

Some of the restrictions derive from longstanding Senate rules. Others originate with the Ethics Reform Act of 1989 and the Legislative Branch Appropriations Act for Fiscal Year 1992. In

its report on the Ethics Reform Act, the House Bipartisan Task Force on Ethics (which drafted

the Ethics Reform Act) explained its concerns:

The current limitations on outside earned income and honoraria were prompted by three

major considerations: First, substantial payments to a Member of Congress for rendering

personal services to outside organizations presents a significant and avoidable potential

for conflict of interest; second, substantial earnings from other employment is inconsistent with the concept that being a Member of Congress is a full-time job; and third,

substantial outside earned income creates at least the appearance of impropriety and

thereby undermines public confidence in the integrity of government officials.

. . . The earned income limitation was intended to assure the public that (1) Members

are not using their positions of influence for personal gain or being affected by the prosVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00078 Fmt 5222 Sfmt 5222 SMANUAL.003 ETHICS1 PsN: ETHICS1
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124 HOUSE BIPARTISAN TASK FORCE ON ETHICS, REPORT ON H.R. 3660, 101st Cong., 1st Sess. 12

(Comm. Print, Comm. on Rules 1989), reprinted in 135 Cong. Rec. H9253, H9256 (daily ed. Nov. 21, 1989) (hereinafter

House BIPARTISAN TASK FORCE REPORT). 125The honoraria ban, enacted as part of the Ethics Reform Act of 1989 (Pub. L. No. 101–194, 103 Stat. 1716)

amending the Ethics in Government Act of 1978, also applied to employees of the executive branch. The ban was invalidated for executive branch employees in United States of America, et al., vs. National Treasury Employees Union, et

al., Case No. 93–1170, U. S. Sup. Ct. (October Term 1994). Legislative branch employees remain subject to the ban. 126 See Interpretative Ruling No. 147 (June 19, 1978). 127This salary threshold will sometimes be referred to in text as ‘‘above GS–15.’’ 128 5 U.S.C. app. 7 § 501, which is recodified as a rule of the Senate at Senate Rule 36.

pects of outside income; and (2) outside activities are not detracting from a Member’s

full-time attention to his or her official duties. 124

A Member or employee should never use the prestige or influence of a position in the Senate

for personal gain. Moreover, Senate Rule 36 sets an overall cap on outside earned income for

Senators and certain staff and prohibits honoraria. Senate Rule 37 contains a number of restrictions

on particular types of activities. These rules are triggered at various salary thresholds, with the

most restrictive provisions affecting only Members and highly paid staff.

A few restrictions affect everyone, regardless of salary. No Member, officer, or employee may

accept any honorarium. The ban on honoraria has been in effect for Senate Members, officers,

and employees since August 14, 1991. 125 All staff are also mandated to avoid conflicts between

private and public employment and to obtain the approval of their supervising Senators for any

outside employment. Members, officers, and employees of the Senate generally may not represent

others in a private capacity before the Government. While statutory criminal provisions do not

appear to restrict representations before Congress made by Members, officers, or employees in a

private capacity (See, supra, section on Representing Others Before Federal agencies), such representations may raise issues of improper conduct and conflict of interest under Rule 37, depending

upon the facts of the particular case. Members, officers, and employees also may not receive compensation from foreign governments or act as agents for a foreign principal. Members, officers,

and employees may not receive any compensation, nor permit any compensation to accrue to their

benefit, by virtue of the improper exertion of official influence. Nor may they advance legislation

with the principal purpose of furthering their own narrow pecuniary interests.

A second set of rules limits the professional activities of those earning at a rate of pay in

excess of $25,000 and employed for more than 90 days in a calendar year. These individuals may

neither affiliate with nor lend their names to firms that provide professional services for compensation. Neither may they practice professions for compensation during Senate working hours, or, with

some exceptions, serve as officers or board members. Committee staff earning at a rate of pay

in excess of $25,000 must generally divest themselves of any substantial holdings directly affected

by the actions of the employing committees. As to what constitutes ‘‘substantial holdings’’, the

Committee has held that the question is one for each committee chairperson to determine in the

first instance, taking such steps as necessary to ascertain the potential for a conflict of interest

arising from the holdings of committee staff persons and to suggest a course of action deemed

to be an acceptable solution. 126

Yet another level of restrictions applies to Members and those officers and employees paid

at a rate equal to or exceeding 120 percent of the base salary for Grade GS–15 of the executive

branch’s General Schedule. 127 This salary threshold is $99,096 for CY2002. Federal law 128 and

Senate Rule 36 limit the total amount of outside earned income that these persons may receive

in a calendar year. The earnings cap is set at 15 percent of the Executive Level II salary, that

is, a Member’s base annual salary. The cap is $22,500 for CY 2002. Members and staff can get

the new amount of the cap as it changes in future years by contacting the Committee.

Important Note: The restrictions in this and the above paragraph are based on Senate ‘‘rate

of pay,’’ so that an employee who works less than full time for the Senate must adjust his or

66 SENATE ETHICS MANUAL

129 18 U.S.C. 431. 130 S. Rep. No. 95–49, The ‘‘Nelson Report.’’ 131 Id. 132 Id. (emphasis added).

her actual pay rate accordingly (pro rata) to determine his or her true ‘‘rate of pay’’ for purposes

of these and other ‘‘rate of pay’’ limitations. For example, an employee who works two and one

half days per week and is paid at a rate of $50,000 a year is, for purposes of these limitations,

an employee whose Senate ‘‘rate of pay’’ is $100,000 per year.

In addition, both law and rule prohibit Members and these senior employees (those paid above

120% of the base salary level for GS–15) from acting in certain fiduciary capacities. These individuals may not receive compensation for practicing a profession that offers services involving

a fiduciary relationship, even if the work is done entirely on their own time. A Member or senior

employee may not serve as a paid officer or board member of any organization. Neither may such

an individual teach for compensation without prior written approval from the Select Committee

on Ethics. Members and senior employees also must file annual financial disclosure statements.

Senate Rule 37, paragraph 10, restrains any employee who files a financial disclosure statement

from contacting executive or judicial branch personnel on matters in which the employee has a

significant financial interest, unless he or she gets a prior written waiver from his or her supervisor. Members may not contract with the federal government. 129 Each of these prohibitions and

limitations is discussed below.

CONFLICTS OF INTEREST (RULE 37)

The Basic Principles

The Senate’s commitment to avoiding conflicts of interest is embodied in Senate Rule 37.

Paragraphs 1 through 4, 7, and 10 target the possibility or the appearance that Members or staff

are ‘‘cashing in’’ on their official positions (i.e., using their positions for personal gain) or that

they have personal financial stakes in the outcome of their official duties. Paragraphs 5 and 6 prohibit a number of specific professional activities believed to pose particular risks of conflict. Paragraphs 8 and 9 restrict post-employment lobbying.

Rule 37(1) states: ‘‘A Member, officer, or employee of the Senate shall not receive any compensation, nor shall he permit any compensation to accrue to his beneficial interest from any

source, the receipt or accrual of which would occur by virtue of influence improperly exerted from

his position as a Member, officer, or employee.’’ This provision was intended ‘‘as a broad prohibition against members, officers or employees deriving financial benefit, directly or indirectly, from

the use of their official position[s].’’ 130 The Nelson Report (which accompanied the original Senate Code of Official Conduct) explained that this rule encompasses conduct also barred under the

bribery laws, but is broader:

For example, if a Senator or Senate employee intervened with an executive agency for

the purpose of influencing a decision which would result in measurable personal financial

gain to him, the provisions of this paragraph would be violated. Similarly, if a Senator

or a Senate employee intervened with an agency on behalf of a constituent, and accepted

compensation for it, the rule of this paragraph would also be violated. 131

Paragraph 2 sets forth the axiom that conflicts of interest must be avoided: ‘‘No Member,

officer, or employee shall engage in any outside business or professional activity or employment

for compensation which is inconsistent or in conflict with the conscientious performance of official

duties.’’ The legislative history of this provision states that it ‘‘should be read to prohibit any outside activities which could represent a conflict of interest or the appearance of a conflict of interest.’’ 132 The Committee has interpreted this paragraph to prohibit compensated employment or

uncompensated positions on boards, commissions, or advisory councils where such service

CHAPTER 3 67

133 See Interpretative Ruling No. 342 (December 10, 1980), Interpretative Ruling No. 283 (Sept. 25, 1979). See

also Interpretative Ruling No. 99 (Feb. 16, 1978) (staffer should not serve on the advisory panel of an institute that

retained a registered lobbyist and intended to lobby concerning pending legislation within the jurisdiction of the staffer’s

employing committee). 134 See Interpretative Ruling No. 61 (Sept. 13, 1977). 135 Generally, one’s supervisor is one’s employing Senator or officer. Paragraph 12 of Rule 37 details who supervises whom, as follows:

For purposes of this rule—

(a) a Senator or the Vice President is the supervisor of his administrative, clerical, or other assistants;

(b) a Senator who is the chairman of a committee is the supervisor of the professional, clerical, or other assistants to the committee except that minority staff members shall be under the supervision of the ranking minority

Senator on the committee;

(c) a Senator who is a chairman of a subcommittee which has its own staff and financial authorization is

the supervisor of the professional, clerical, or other assistants to the subcommittee except that minority staff

members shall be under the supervision of the ranking minority Senator on the subcommittee;

(d) the President pro tempore is the supervisor of the Secretary of the Senate, Sergeant at Arms and Doorkeeper, the Chaplain, the Legislative Counsel, and the employees of the Office of the Legislative Counsel;

(e) the Secretary of the Senate is the supervisor of the employees of his office;

(f) the Sergeant at Arms and Doorkeeper is the supervisor of the employees of his office;

(g) the Majority and Minority Leaders and the Majority and Minority Whips are the supervisors of the research, clerical, or other assistants assigned to their respective offices;

(h) the Majority Leader is the supervisor of the Secretary for the Majority and the Secretary for the Majority

is the supervisor of the employees of his office; and

(i) the Minority Leader is the supervisor of the Secretary for the Minority and the Secretary for the Minority

is the supervisor of the employees of his office. 136 See Interpretative Ruling No. 33 (June 28, 1977). 137 See Interpretative Ruling No. 308 (Mar. 3, 1980); cf. Interpretative Ruling No. 339 (Sept. 25, 1980).

could create a conflict with an individual’s Senate duties due to appropriation, oversight, authorization, or legislative jurisdiction as a result of Senate duties. 133

A detailed discussion of advisory, officer, and board service for non-Senate organizations is

set forth later in this chapter.

Paragraph 3 delineates the enforcement mechanism for the first two provisions. All officers

and employees (including consultants and part-time employees 134) must report in writing ‘‘any

outside business or professional activity or employment for compensation’’ to their supervisors before the activity or employment commences and on May 15 of each year thereafter so long as

it continues. The responsibility then rests with the supervisor to ‘‘take such action as he [or she]

considers necessary for the avoidance of conflict of interest or interference with duties to the Senate.’’ Thus, all outside employment or professional activity must be cleared in advance with one’s

supervisor. 135 The Committee will advise against activities that it believes to pose actual conflicts

of interest. Where the appearance of a conflict is presented, the Committee may recommend refraining from engaging in the activity. In most cases involving appearances (but not an actual conflict), however, the Committee will defer to the judgment of the relevant supervisor. A supervisor,

within his or her sole discretion, may forbid an outside activity or set conditions upon it to avoid

perceived conflicts. 136 The duty to avoid conflicts with official responsibilities and to notify one’s

supervisor whenever the potential for conflict exists pertains to whether or not one’s outside activities are compensated. 137

With respect to the question of leave time to perform outside employment (including campaign work, and regardless of compensation), it is the Committee’s understanding that the Senate

does not recognize a ‘‘leave of absence’’. The Committee has ruled that it is proper for a Senator

to either reduce the salary or remove the employee from the Senate payroll when the employee

intends to spend additional time on outside activities, over and above accrued leave time or vacation time (see I.R. 194). However, in order to receive any level of Senate salary, pay should be

commensurate with actual duties performed for the Senate. An employee may be terminated from

the Senate (without) pay and return at a later date.

68 SENATE ETHICS MANUAL

138 See Interpretative Ruling No. 227 (Jan. 30, 1979). See also examples set forth under discussion of Board Service. 139 See Interpretative Ruling No. 213 (Dec. 22, 1978). See also Senate Rule 38 and Interpretative Ruling 442 (Apr.

15, 1992). 140 See Interpretative Ruling No. 128 (May 12, 1978). 141 See Interpretative Ruling No. 358 (Dec. 17, 1982). 142 See Interpretative Ruling No. 97 (Feb. 8, 1978). See also Interpretative Ruling No. 54 (Aug. 30, 1977) (for

committee professional staffer to serve as Consumer Representative on a local government council which has an interest

in legislation pending before the employing committee would create the appearance of a conflict). 143 See Interpretative Ruling No. 27 (June 7, 1977). 144 See Interpretative Ruling No. 181 (Sept. 29, 1978).

Example 1. Subcommittee staffer V works on authorizing legislation for the federal

school lunch program. V is offered a position with a state agency, advising the state on

the implementation of school nutrition programs, funded in part with federal dollars. V

should decline the position as it could lead to an actual conflict with the conscientious

performance of official duties. 138

Example 2. A defense contractor offers to make one of its employees available to the

Committee on Armed Services on a part-time basis, while the individual continues to

work for the contractor. This arrangement could create an actual conflict of interest or

the appearance of a conflict of interest due to the jurisdiction of the committee over matters of interest to the contractor. The Committee therefore recommends that the offer be

declined. 139

Example 3. Senator W is writing a book and wishes to hire staffer X as a consultant.

The Senator proposes to retain X on the Senate payroll at the minimum figure established

by the Secretary of the Senate. X will perform services, commensurate with his reduced

salary, in the Member’s office during Senate business hours. Work on the book will be

undertaken during non-Senate business hours. This arrangement is permissible under the

Code of Official Conduct. Senator W is responsible for insuring that work on the book

does not interfere with X’s Senate duties. 140

Example 4. Upon election to the Senate, Senator Y resigns her position as Chairman of

the Board and Chief Executive Officer of the company she founded. The company asks

her if, during the first few months of her Senate service, she can be available to advise

the new CEO on an intermittent basis on matters in the company’s history that may be

within Y’s sole knowledge. Y would not be compensated for this advice, which would

not include current planning decisions for the company, but her continued association

with the company would allow her to exercise certain previously awarded stock options.

This arrangement is permissible under Senate rules. 141

Example 5. Committee counsel Z is invited to join a local bar association subcommittee

which intends to lobby Z’s Senate committee on pending legislation. To avoid the appearance of a conflict of interest, Z should refrain. 142

Example 6. Staffer A, a legislative assistant for health, education and labor issues, is

also an officer in the military reserve. Reserve service normally entails one weekend each

month and two weeks active duty each year. Compensation is well within the outside

earned income cap. The employing Senator believes this service will not conflict with

Senate duties. This outside employment does not pose any conflict of interest and is consistent with the Senate Code of Official Conduct. 143 If the staffer’s legislative responsibilities relate to military affairs, a conflict could result should the staffer be assigned

to work on matters related to the military reserves.

Example 7. Staffer B is offered a grant from a university to conduct academic research,

on his own time, on a subject unrelated to his official duties. With the approval of his

supervising Senator, B may accept. 144

Example 8. Staffer M, the computer systems administrator in a Senate personal office

earning less than 120% of GS–15, would like to work outside the Senate for a commercial and political research firm providing computer and hardware services on machines

for the company’s clients. With the supervising Senator’s permission, the staffer may accept the outside employment where the computer and hardware services will have no relationship to the Senate or Senate business, the work is done on the employee’s own

time, and no use of Senate facilities or funds is involved. In order to be ‘‘related to’’

CHAPTER 3 69

145 S. Rep. No. 95–49 at 41–42.

official duties, work must relate to the subject matter of the employee’s official duties,

not simply to the tools used by the employee to perform those official duties, or to technical knowledge or skills gained, in part at least, through the staffer’s performance of

official duties.

Legislative Action

Paragraph 4 of Rule 37 prohibits individuals from using their legislative power to advance

their personal financial interests. This provision states: ‘‘No Member, officer, or employee shall

knowingly use his official position to introduce or aid the progress or passage of legislation, a

principal purpose of which is to further only his pecuniary interest, only the pecuniary interest

of his immediate family, or only the pecuniary interest of a limited class of persons or enterprises,

when he, or his immediate family, or enterprises controlled by them, are members of the affected

class.’’

The Nelson Committee explained the narrow scope of this provision as follows:

The Committee recognizes that in many cases, legislation advancing through the Senate

will have some impact on the financial situation of a member, officer, and employee.

All tax legislation has such an impact. Ordinarily, however, the impact on an individual’s

holdings is likely to be quite minimal in comparison to the impact of the legislation on

the public and the public interest served . . . Legislation may have a significant financial

effect on a Senator because his holdings are involved, but if the legislation also has a

broad, general impact on his state or the nation, the prohibitions of the paragraph would

not apply.

Thus, for example, if a dairy farmer represented a dairy farming state in the Senate, and

introduced, worked for, and voted for legislation to raise or maintain price supports for

dairy producers, he would not fall under the strictures of this rule. The strong presumption would be that the Member was working for legislation because of the public interest

and the needs of his constituents and that his own financial interest was only incidentally

related . . . [T]he committee intends that a class of people or enterprises sharing a particular economic interest (i.e. dairy farmers; shoemakers; disabled veterans) would not

be a ‘‘limited class.’’ By ‘‘limited class,’’ the Committee means a class which resembles

much more closely the class of people affected by a private bill. Therefore, to return

again to the example of the Senator who was a dairy farmer, he would not be prohibited

from working for legislation to help boost or maintain the price supports of dairy products. If, however, legislation was introduced to purchase a piece of land made up in part

of a piece of his property and in part of pieces of his neighbors’ property, in order to

build a federal project there, the Senator would be foreclosed from working on the legislation.

If the legislation does meet the ‘‘principal purpose’’ (and ‘‘limited class’’) standards as

necessary, the Committee intends that the disqualification from involvement with the legislation should be total. 145

Both the ‘‘principal purpose’’ and the ‘‘limited class’’ test must be met before the paragraph

precludes a Senator’s involvement in a legislative proposal. As noted, the history states that ‘‘legislation may benefit a Senator significantly, but if it also has a broad, general impact on his state

or the nation, the prohibitions of the paragraph would not apply.’’ In Interpretative Ruling 171

the Committee ruled that a Member’s efforts in supporting tax legislation that would benefit his

wife’s profession if it were passed did not violate this rule since the legislation would have a broad

general impact.

In connection with this rule, the Committee has observed that, ‘‘Those who elect Senators

and Congressmen are entitled to have their elected representatives represent them by voting and

fully participating in all aspects of the legislative process. This representation is carried out with

the understanding that the votes cast by the Senators and Congressmen are predicated on their

perceptions of the public interest and the public good, not on personal pecuniary interest.’’

70 SENATE ETHICS MANUAL

146 See Interpretative Ruling No. 171 (Sept. 14, 1978). 147 See Interpretative Ruling No. 36 (June 28, 1977). 148 See Interpretative Ruling No. 63 (Sept. 15, 1977). 149 See Interpretative Ruling No. 147 (June 19, 1978); Interpretative Ruling No. 142 (June 6, 1978).

The Committee has previously ruled under paragraph 4 that ownership of a peanut farm did

not present a conflict of interest in acting upon legislation which would establish peanut allotments

and subsidies (1981 ruling); that a Senator who owned 10 acres of unimproved land on a coastal

barrier island could participate in legislation terminating future Federal subsidies for the development of certain undeveloped coastal barrier islands without having a conflict of interest (1982 ruling); that ownership of shares in the manufacturer of defense equipment, held through a mutual

fund, did not present a conflict of interest in dealing with legislation directly affecting the defense

contractor (1993 ruling); that a Senator who owned shares in a company that owned cable stations

could participate in legislation directly affecting cable companies (1990 ruling); that a Senator who

owned a large hog farm operation could participate in committee actions and vote on legislation

affecting hog farming interests (1995 ruling); that a Senator who belonged to a performance rights

organization representing copyright holders could participate in legislative activities affecting licensing agents and copyright owners generally (1997 ruling); and that a Senator with tobacco

farming interests could participate in legislative activities on comprehensive tobacco legislation

(1998 ruling).

Example 9. Senator C favors legislation to restore full tax deductibility to business

meals, based on the impact of the legislation on constituents in the food services industry.

C’s spouse owns a restaurant. Since such tax legislation would have a broad, general

impact, Rule 37(4) does not preclude C from co-sponsoring the bill. 146

Example 10. Mary is Senator D’s legislative assistant for agricultural affairs. She also

owns an agriculture related business, Mary’s Dairy, which employs her children and pays

her dividends. Mary may, as a member of the broad economic class of dairy farmers,

work on legislation that will benefit all dairy farmers. 147

Example 11. Senator E, a retired military reservist, may vote on legislation to remove

the limit on military pensions for federal officials. 148

Staff Holdings

Senate Rule 37, paragraph 7, requires committee staff paid at a rate of pay in excess of

$25,000 a year and employed for more than 90 days to divest themselves of any substantial holdings which may be directly affected by the actions of the employing committee, unless the Ethics

Committee after consultation with the employee’s supervisor approves other arrangements. 149 On

occasion, the Select Committee has permitted an employee either to retain specific holdings or

to make arrangements to avoid participation in committee actions which present a conflict of interest or an appearance of a conflict. Under the rule, the Committee may only grant such permission

in writing, after consulting the employee’s supervisor.

Paragraph 10 of Rule 37 restricts the official activities of employees who earn at least 120%

of GS–15 ($99,096 for CY 2002). These individuals may not contact other government agencies

with respect to non-legislative matters affecting their own significant financial interests. An employing Senator may waive this disqualification by notifying the Select Committee on Ethics, in

writing, that the Senator is aware of the employee’s financial interest, but deems this person’s participation necessary nonetheless.

Example 12. F, who has substantial stock holdings in the airline industry, accepts a job

with the Committee on Commerce, Science, and Transportation at a salary of $50,000

a year. Absent written permission of the Select Committee on Ethics (in consultation with

the chairman or ranking member of the committee), F must sell this stock. The decision

as to whether a holding is ‘‘substantial’’ is made on a case-by-case basis.

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150 Interpretative Ruling No. 359 (Jan. 3, 1983). 151 See Interpretative Ruling No. 233 (Mar. 9, 1979); Interpretative Ruling No. 70 (Sept. 29, 1977). 152 A partnership formed for the purpose of personal investment (e.g., forming a partnership to buy rental property)

and not for the purpose of providing professional services to others for compensation, is not a prohibited affiliation

for purposes of Rule 35. 153 See Interpretative Ruling No. 352 (August 2, 1982).

Example 13. Staffer G, the banking expert on Senator H’s staff, is part owner of a bank

in H’s state. A new banking regulation will adversely affect all the banks in H’s state,

and H wishes G to contact the banking regulators on his behalf to urge reconsideration.

H writes to the Committee on Ethics, stating: ‘‘I authorize my staffer, G, to contact banking authorities concerning Regulation 123. I understand that G, as part owner of Central

Bank, may benefit if the Regulation is withdrawn. Nonetheless, I waive the application

of Senate Rule 37(10) because G’s expertise in this area makes her participation necessary.’’ G is now free to contact the agency.

PROFESSIONAL/FIDUCIARY RESTRICTIONS

Senate Rule 37, paragraph 5(a) has long prohibited every Member, officer, and employee paid

at a rate of pay in excess of $25,000 a year and employed for more than 90 days in a calendar

year from: (1) affiliating with a firm, partnership, association, or corporation for the purpose of

providing professional services for compensation; (2) permitting his or her name to be used by

a firm, partnership, association or corporation which provides professional services for compensation; or (3) practicing a profession for compensation to any extent during regular office hours of

the employing Senate office. ‘‘Professional services’’ include, but are not limited to, those which

involve a fiduciary relationship. The Committee has ruled that the type of services contemplated

by the drafters of paragraph 5(a) involved a ‘‘duty to outside commercial or business organizations, which on their face were likely to present conflicts between Senate duties and outside responsibilities.’’ 150

For those making less than 120% of GS–15, paragraph 5(a)(1) limits affiliation with firms

for the purpose of providing professional services. Professional service firms include, but are not

necessarily limited to, firms providing the following services: law, medicine, engineering, architecture, real estate, insurance, and consulting. Paragraph 5(a)(1) restricts, but also contemplates the

possibility of, some professional practice outside office hours or on annual leave time. 151 As long

as the individual avoids affiliating with a firm, Rule 37(5)(a) allows him or her to practice a profession during off hours. 152 Additionally, if the individual does not affiliate, but instead acts as

a sole practitioner in the capacity of independent contractor, he or she may provide professional

services to a firm itself. 153 As the Committee construes this rule, the individual’s services may

not include work product for the firm’s clients. If the services do include client work product,

the arrangement will be deemed an impermissible affiliation.

Pursuant to the Ethics Reform Act, paragraph 5(b) was added, further prohibiting Senators

and senior employees (those earning at or above 120% of the GS–15 level) from entering into

professional fiduciary relationships. Specifically, the rule bars these persons from: (1) receiving

compensation for affiliating with or being employed by a firm, partnership, association, corporation, or other entity which provides professional services involving a fiduciary relationship; (2)

permitting their names to be used by any such firm, partnership, association, corporation, or other

entity; (3) receiving compensation for practicing a profession which involves a fiduciary relationship, or (4) receiving compensation for teaching, without the prior notification and approval of

the Ethics Committee.

Thus, in contrast to paragraph 5(a), under paragraph 5(b), a covered individual may not receive compensation for being employed in any capacity (not just for the purpose of providing professional services) by a firm which provides professional services involving a fiduciary relationship. Moreover, paragraph 5(b) prohibits the paid practice of fiduciary professions, even if done

72 SENATE ETHICS MANUAL

154 See BLACK’S LAW DICTIONARY 625–26 (6th ed. 1990); House BIPARTISAN TASK FORCE REPORT on

H.R. 3660 (101 Cong., 1st Sess., March 15, 1989), at 16, 135 CONG. REC. H9257. 155 S. Rep. No. 95–49, supra note 6, at 43. Accord Interpretative Rulings No. 431 (Feb. 29, 1988) and 166 (Aug.

10, 1978) (affirming that service as a real estate broker is a fiduciary profession); Interpretative Ruling No. 257 (May

14, 1979) (service as a consultant is a fiduciary profession). 156 Id. See also House Bipartisan Task Force Report, supra note 89, at 14, 135 CONG. REC. H9257. 157 See Interpretative Ruling No. 359 (Jan. 3, 1983); Interpretative Ruling No. 36 (June 28, 1977); Interpretative

Ruling No. 338 (Sept. 23, 1980); Interpretative Ruling No. 93 (Jan. 4, 1978); Interpretative Ruling No. 352 (Aug. 2,

1982).158 Interpretative Ruling No. 344 (Feb. 16, 1981); see also Interpretative Ruling No. 358 (Dec. 17, 1982) 159 See ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.5(c) (1989); MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 2–102(B), EC 2–12 (1981).

as a solo practitioner, entirely on one’s own time. This provision, however, does not prohibit an

individual from being compensated for serving as trustee of a family trust or executor of a family

will. Thus, the Committee has previously approved an individual being compensated as executor

of a relative’s will (See Senate Rule 34 and 5 U.S.C. app. Sec. 109(16) for the definition of relative.)

Neither the rule nor the statute defines ‘‘fiduciary,’’ a term generally denoting an obligation

to act in another person’s best interests or for that person’s benefit, or a relationship of trust in

which one relies on the integrity, fidelity, and judgment of another. 154 The professional restrictions

were intended to limit the practice of law, medicine, engineering, architecture, service as a real

estate or insurance agent or consultant, ‘‘and similar types of activities.’’ 155 These provisions reflect the belief ‘‘that the practice of a profession usually requires substantial amounts of personal

involvement and time and may also present conflicts of interest or in some cases an appearance

of such conflicts.’’ 156 In response to individual inquiries, the Committee has determined that certain compensated activities are not the type of professional endeavors contemplated by the rule

and therefore, with supervisor approval, may be pursued. These include serving as a political party

official, farming, writing (subject to the honoraria law), transcribing, and race car driving. 157

Moreover, the Committee has noted that difficulties might arise if this rule were applied too literally with respect to newly elected Members winding up their business affairs. The Committee

has advised such persons to conclude their business responsibilities ‘‘expeditiously and in conformity with the spirit and purpose of paragraphs 2 and 5 of Rule 37.’’ 158

While some of these provisions restrict payment for professional services, the ban on allowing

one’s name to be used by a specified organization applies regardless of whether the organization

compensates the Member or employee. Federal law at 5 U.S.C. § 501 also provides that a firm,

business, or organization that practices before the Federal Government may not use the name of

a Member of Congress to advertise the business. These limitations accord with rules of the American Bar Association (ABA) prohibiting the facade of retaining a government lawyer’s name in

a firm when the individual is not actively and regularly practicing. 159

From a practical standpoint, paragraphs 5(b) (covering Senators and staff earning above GS–

15) is somewhat redundant of paragraph 5(a) (covering all those earning more than $25,000). Their

differences and nuances can perhaps best be explained by examples of how they work in various

circumstances.

Thus, while paragraph 5(a) allows individuals paid at a rate of pay in excess of $25,000 in

Senate salary to provide paid professional services on their own time, as long as they do not affiliate with a firm to do so, paragraph 5(b) bars individuals earning above GS–15 from being paid

for practicing a profession involving a fiduciary relationship, even as solo practitioners, working

on their own time. Additionally, paragraph 5(a)(1) would allow a Senate employee paid at a rate

of pay in excess of $25,000 in Senate salary to work on the weekend as an accountant (i.e., providing professional services) for a law firm, as long as he or she was auditing the books of the

firm itself, and not its clients, and was not preparing work product for use in providing services

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160 See Interpretative Ruling No. 304 (Feb. 21, 1980).

161 See Interpretative Ruling No. 145 (June 15, 1978).

162 See Interpretative Ruling No. 233 (Mar. 9, 1979). Care should be taken that such representation does not violate

Federal criminal law (18 U.S.C. 203 & 205) that prohibits Members, officers, and employees from privately representing

others before the Federal Government. See generally discussion on Representing Others Before Federal Agencies.

163 See Interpretative Ruling No. 48 (Aug. 5, 1977). See also Interpretative Ruling No. 275 (July 17, 1979).

164 See Interpretative Ruling No. 166 (Aug. 10, 1978).

165 See Interpretative Ruling No. 431 (Feb. 29, 1988).

to the firm’s clients. Under paragraph 5(b), however, an individual earning above GS–15 in Senate

salary would be barred both from being paid for personally providing professional services to anyone, and from being employed by a firm providing professional services in any capacity, be it

as a lawyer or a janitor.

Example 14. Staffer I earns $60,000 a year as associate counsel to a committee. He may,

with the concurrence of his employing Senator (and assuming no conflict of interest is

otherwise present), draft wills for pay on the weekends, as a solo practitioner. 160 However, Staffer I may not join the Jones law firm to provide services to the firm’s clients.

Example 15. Staffer J earns $110,000 a year as general counsel to the same committee.

She may not provide legal services for compensation outside her Senate duties.

Example 16. Staffer K, a non-lawyer, earns $110,000 a year as a committee staff director. He is offered an outside job as a part-time employee of a law firm. Although his

responsibilities, advising the firm’s lawyers in his substantive area of expertise, will not

amount to practicing a profession which involves a fiduciary relationship, his employment in any capacity by a firm which provides professional services involving a fiduciary

relationship is barred under Rule 37(5)(b)(1). Moreover, any outside employment giving

advice in the area of his committee’s jurisdiction would be prohibited under Rule 37(2).

Example 17. Senator L, a former law firm partner, may not be listed on the firm’s letterhead as ‘‘Of Counsel’’ to the firm, regardless of whether L is compensated for this status. 161

Example 18. Staffer M, a former personal injury lawyer, had several cases pending when

she began her Senate employment at an annual salary of $70,000. Her Senate responsibilities are unrelated to personal injury law. With the permission of her employing Senator,

M may, as a sole practitioner, on her own time, complete her work on these cases. Further, she may fulfill an agreement made before she left her former firm to share with

the firm that portion of the fees attributable to work done at the firm before she left. 162

Example 19. Committee counsel N, before coming to the Senate, worked on a court case

on a subject of direct concern to his committee. N wishes to take a temporary leave of

absence from his Senate position to return to association with his former law firm for

the sole purpose of arguing the appeal in the case. He would then permanently sever

his ties to the firm. The Committee advises against this arrangement, which creates both

the appearance of a conflict of interest and too great a potential for an actual conflict. 163

Example 20. Staffer O, who earns $30,000 a year as a Senator’s staff assistant, may not

sell real estate on weekends under an arrangement whereby his associate broker’s license

is held by a real estate company because this would be an impermissible affiliation with

the company for the purpose of providing professional services for compensation. 164 He

may, however, allow a real estate firm to hold and display his license for the sole purpose of maintaining that license, as long as he provides no services to, and receives no

benefits from, the firm. 165 An individual who was a broker and did not affiliate with

anyone could, by his or herself, engage in real estate sales, however.

Example 21. Law partner P is leaving her practice to become counsel to a Senate committee, at a salary in excess of $25,000 a year. During her employment with the Senate,

she will do no work for the firm and have no interest in fees for services rendered by

the firm in her absence. The firm will remove her name from its letterhead. She would

like to retain, with no further contributions by the firm, her interest in the firm’s pension

74 SENATE ETHICS MANUAL

166 See Senate Rule 35, which specifically contemplates that individuals coming to work at the Senate may maintain

their pension benefits with prior employers, provided no further contributions are made on behalf of the individual by

the former employer. See also Interpretative Ruling No. 321 (May 13, 1980) where an individual was coming to work

for the Senate on a temporary basis and was permitted to also retain membership in the firm’s health insurance plan

at the individual’s sole expense. The Committee has closely monitored the period of time during which an employee

may work for the Senate under these conditions. Any individual contemplating employment with the Senate who anticipates retaining any relationship with his or her prior employer or firm (other than simply leaving his or her assets

in the firm’s pension plan) should receive advance approval from the Ethics Committee. 167 See also Interpretative Ruling No. 243 (Mar. 29, 1979) (Senator may serve, without compensation, on advisory

board of tax-exempt educational institution).

plan. She may accept the job under these circumstances. Maintaining her interest in the

pension plan at her own expense would not constitute a prohibited affiliation. 166

The ‘‘90-Day Affiliation Rule’’ for Employees and Per Diem Employees

In a 1989 ruling involving the case of a regular Senate employee (paid 360 days per year),

the Committee concluded that as used in Rule 37.5, the phrase ‘‘. . . employed for more than

90 days . . .’’ referred to the amount of time an individual is on the Senate payroll rather than

to the number of days the individual actually works. Thus, a Senate employee on the payroll for

more than a 90 day period was prohibited from affiliating with a firm as contemplated in Rule

37.5, even if the individual was a part-time employee who actually worked less than 90 days.

The Committee has considered the application of Senate Rule 37.5 to an individual engaged

by the Senate as a per diem employee. (For further discussion of per diem employee status, see

section on ‘‘Consultant, Per Diem, and Special Government Employees’’ in Chapter Four). In the

case of a per diem employee (who is paid when actually employed), the Committee concluded

that only those days when the employee is actually providing services to the Senate should

be counted for purposes of determining when the employee may have been ‘‘employed for more

than 90 days’’ within the meaning of the Rule. The Committee has further concluded, however,

that because continued employment of an individual affiliated with a firm as contemplated in Rule

37.5 could reflect upon the institution and present an unacceptable potential conflict of interest,

no such employee may be employed in this fashion in consecutive Congresses. For example, during the 105th Congress such an employee could provide services to the Senate for 90 days in

calendar year 1997 and 90 days in 1998, but could not continue to provide Senate services in

the 106th Congress. Such employees are subject to all other provisions of the Code of Official

Conduct.

Officer, Board, or Advisory Service

Rule 37(6)(a) bars Members, officers, and employees paid at a rate of pay in excess of

$25,000 a year and employed for more than 90 days in a calendar year from serving as officers

or members of the board of any publicly held or publicly regulated corporation, financial institution, or business entity. This rule exempts uncompensated service as an officer or board member

of (1) a tax-exempt organization (under section 501(c) of the Internal Revenue Code) 167 and (2)

an institution or organization which is principally available to Members, officers, or employees

of the Senate, or their families.

Paragraph 6(a) additionally permits a Senate individual paid at a rate of pay in excess of

$25,000 a year to serve, with or without compensation, as a member of the board of a corporation,

institution, or other business entity, if (A) the Member, officer, or employee had served continuously as a member of that board for at least two years prior to coming to the Senate, (B) the

amount of time required to perform the service is minimal, and (C) the Member, officer, or employee is not a member or staffer of any Senate committee which has legislative jurisdiction over

any agency of the Government charged with regulating the activities of the corporation, institution,

or other business entity. Under the later enacted paragraph 6(b), however, any Member, officer,

or employee compensated at or above 120 percent of the GS–15 rate of pay (i.e., $99,096 for

CHAPTER 3 75

168 See S. Rep. No. 95–49, supra note 6, at 44.

CY 2002), may not serve for compensation as an officer or member of the board of any association, corporation, or other entity. In addition to these provisions, board (and officer or advisory)

service is governed by paragraphs 1 and 2 of Rule 37, prohibiting the improper use of official

influence for private profit as well as any outside business or professional activity or employment

which is inconsistent or in conflict with the conscientious performance of official duties. 168

Because service on the board of an outside organization involves a fiduciary duty and an

increased potential for an appearance of a conflict, the Committee has advised that, as long as

a Senator remains on such a board, the Senator should refrain from any official action advocating

any proposal of particular benefit to the organization in question because such activities may create

an appearance of a conflict under paragraphs 1 and 2 of Rule 37. The Committee has applied

the provisions of paragraphs 1 and 2 broadly, but has previously found a potential for a conflict

of interest in such situations only where the organization – on whose board of directors a Senator

proposes to take an uncompensated position – receives federal funding from an agency which is

subject to the appropriation or oversight functions of a committee on which the Senator sits or

otherwise has an interest in matters under such committee’s jurisdiction.

Where the position in question is advisory and non-fiduciary in nature, the Committee has

not previously prohibited a Member’s participation on such an advisory body, although the Committee has restricted staff activities on advisory boards where the entity has legislative interests

in the same topic areas as the employee’s official duties or where federal money is sought, spent,

or administered by the advisory body or the group that it advises. In permitting somewhat greater

latitude to Members serving in a purely advisory role, the Committee has recognized that individual Senators are typically the judge of whether an activity creates an appearance of conflict,

and the Committee will not normally interfere with a Senator’s discretion under paragraph 2, absent an actual conflict.

Senators may also serve as honorary chairpersons of non-profit events so long as such service is consistent with Rule 37. In many instances, the Member is asked to assume the role of

guest host or ‘‘honorary chairperson’’ of a charity event sponsored by either a non-profit organization or by a corporation or other entity whereby the proceeds from the event or a charitable gift

are donated to charitable purposes, such as a charity golf or tennis tournament. The Committee

has previously stated that Senators may serve as honorary chairpersons of charitable events so long

as such service is consistent with Rule 37, paragraphs 1 and 2 (prohibiting the improper use of

official influence for private profit and prohibiting outside business or professional activity which

is inconsistent or in conflict with the conscientious performance of official duties) and so long

as the activity is not performed on Senate time and does not use Senate resources or equipment.

The decision as to whether to lend his or her name to a charitable event as an honorary chairperson is entirely within the Senator’s discretion. However, the Senate Gifts Rule, Rule 35, states

that a contribution to any charity from a lobbyist or foreign agent based upon the recommendation

of a Member, officer, or employee may be deemed a gift to the Member, officer or employee.

(See the discussion of this topic in Chapter 2, heading ‘‘Other Prohibited Gifts from Lobbyists,

Lobbying Firms, and Foreign Agents’’.) There are exceptions for mass mailings, solicitations directed to a broad range of persons or entities (50 or more prospective donors) and the Member

has no reason to believe that the solicitation is targeted specifically at lobbyists or foreign agents,

and payments in lieu of honoraria made by a lobbyist or foreign agent to a charity not maintained

or controlled by the Member if the payment is reported under Senate Rule 35.

Often a Member who serves in an honorary capacity for a charity event will be asked by

the event organizers to allow his or her name to appear on the letterhead used to solicit donations,

or to allow the Member’s name to be used in the actual solicitation, or to make a personal appeal

on behalf of the charity at the fundraising event. The Committee has previously determined that

76 SENATE ETHICS MANUAL

a Member who does nothing more than allow his or her name to appear on a fundraising letterhead

as honorary chair or host has not solicited a contribution from anyone, but that a Member does

make a solicitation when he or she signs the fundraising letter or allows his or her name to appear

in the body of the fundraising letter as supporting or endorsing the fundraising effort. A Member

who makes a personal appeal at a charitable fundraiser would clearly be making a solicitation for

charitable contributions.

For information on the use of the Senate Official Letterhead in the context of charitable

events, see heading on the Senate Letterhead in Chapter 7.

Often the organizers of a charity event will invite Members and staff to serve as co-hosts

of the event and will waive the ticket price for the event. The Senate Gifts Rule prohibits a Member, officer, or employee of the Senate from receiving any gift of a value of $50 or more (counting

gifts of ten dollars or more), or gifts from one source that aggregate $100 or more during a calendar year. However, paragraph 1(d)(3) of the Gifts Rule provides that a Member, officer, or employee or the spouse or dependent thereof, may accept a sponsor’s unsolicited offer of free attendance at a charity event, except that reimbursement for transportation and lodging may not be accepted in connection with an event that is substantially recreational in nature. See Chapter 2 for

a discussion of the Gifts Rule exception for charity events.

Service by a Senate Member, officer, or employee on a Legislative Branch

Commission

Often a Member is asked to serve on a Commission established in the Legislative Branch

by federal law for some limited undertaking and to report to Congress with respect to the matter.

Such a Commission may include Senators among its members. Typically, such a Commission receives authorized appropriations for Commission operations and has the power to hire an executive

director and other employees, although such Commissions are generally not funded through the

Secretary of the Senate.

The Committee frequently is asked for its advice regarding the applicability of the Senate

Code of Official Conduct to such a Commission. Unless specifically provided otherwise by the

law creating such a Commission, the Ethics Committee has determined pursuant to its jurisdictional authorities and Senate Rules, that where such a Commission receives its funding from

sources other than the Secretary of the Senate and where Commission employees’ salaries are not

distributed by the Secretary of the Senate and such employees do not provide Senate services,

then individuals associated with the Commission are not subject to the Senate Code of Official

Conduct, except as otherwise noted below with respect to the financial disclosure obligations of

such employees under the Ethics in Government Act. The Committee has also routinely and consistently delegated to any Commission having such employees any authority which the Committee

might otherwise have with respect to the Commission or its employees under 5 U.S.C. 7351 or

7353.

In regard to the obligation of Commission employees paid at a rate of pay in excess of 120%

of GS–15 for more than 60 days to file public financial disclosure reports ‘‘in the case of an officer or employee of the Congress. . . who is employed by an agency or commission established

in the legislative branch’’ must be filled with ‘‘(I) the Secretary of the Senate or the Clerk of

the House of Representatives, as the case may be, as designated in the statute establishing such

agency or commission; or (II) if such statute does not designate such committee, the Secretary

of the Senate for agencies and commissions established in even numbered calendar years, and the

Clerk of the House of Representatives for agencies and commissions established in odd numbered

years.’’ Thus, where a Commission is established in an even numbered year, it appears that Commission employees who are required to file reports should do so with the Secretary of the Senate,

Office of Public Records.

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169 See Interpretative Ruling 342 (December 10, 1980) and Interpretative Ruling 227 (January 30, 1979). 170 See Interpretative Ruling No. 103 (Mar. 6, 1978).

Senate Members, officers, or employees appointed to or providing services or engaging in officially related activities with respect to such commissions remain fully subject to the Senate Code

of Official Conduct.

Establishment of a Charitable Foundation by a Member

The Committee has approved the establishment of a charitable trust by a Senator (and the

donation of contributions in lieu of honoraria to the trust from those who are not lobbyists or

foreign agents) where the IRS had ruled that the trust was a 501(c)(3) and a 170(c) organization,

and, although the Senator was a trustee of the trust, neither the Senator, his sibling, spouse, child,

or dependent relative were employed by or derived any financial benefit from the trust, nor were

employed by or derived any financial benefit from the charities to which the trust gave money.

As noted, the Senate Gifts Rule prohibits any lobbyist from contributing to any entity or charity

maintained or controlled by a Senator, officer, or employee. Thus, a lobbyist or lobbying firm

may not contribute to a Member’s charitable fund or make a contribution in lieu of honoraria to

such a fund where the fund is maintained or controlled by the Member.

The Committee has not yet determined what conditions will render an entity to be deemed

to be ‘‘maintained or controlled’’ by a Member, officer, or employee. However, control or maintenance of such an entity would appear to at least include situations where a Senator appoints board

members, trustees, or other overseers of an entity; where a Senator serves on the board of a closely

held entity; or where family members or relatives serve on such a board. Service of members of

the Senator’s staff on the board of a charity organization established by a Member could also

cause a charitable entity to be ‘‘maintained or controlled’’ by the Member. The determination of

whether a particular entity is ‘‘maintained or controlled’’ by a Member depends upon a case by

case analysis based on the totality of the circumstances.

In addition, any Senate staffers serving on such a board should not perform board work on

Senate time or using Senate resources, and care should be taken in the fundraising process to avoid

any staff solicitation of individuals who have direct business with the Senator’s office.

Staff members are restricted by Rule 37.2 and Committee decisions from engaging in board,

officer, or advisory positions which conflict with the performance of official duties. Under paragraph 3 of Rule 37, staff may engage in board activity on a limited basis, provided that prior

to the commencement of any such activity, the employee’s supervisor determines that there is no

conflict of interest and that the activity will not interfere with Senate duties. Under these provisions, however, the Committee has previously found conflicts of interest where Senate employees

have taken uncompensated positions on boards, commissions, or advisory councils of organizations

that receive or seek federal funding and/or where the employee’s official duties involve the same

topics addressed by the outside organization (i.e., federal money conflict or subject matter conflict). 169 Where an outside organization has an interest in a legislative matter, and the staff person,

because of her position and expertise in the Senate, is likely to be called upon by her supervising

Senator to provide input on the matter, a conflict of interest may be created under Rule 37.2

should the staff person take the outside position.

Example 22. Staffer Q, who works for the Budget Committee, is invited to serve without

pay on the board of a tax-exempt organization which publishes a newsletter summarizing

state and federal election campaigns. With the approval of her supervising Senator, Q

may so serve. 170

Example 23. Senator R is invited to serve, on an uncompensated basis, on the board of

directors of a statewide non-profit community action agency. The agency administers programs that are substantially funded by the Federal Government, through legislation under

the jurisdiction of subcommittees and committees on which the Senator sits. The Select

78 SENATE ETHICS MANUAL

171 See Interpretative Ruling No. 342 (Dec. 10, 1980). 172 See Interpretative Ruling No. 286 (Oct. 2, 1979). 173 See Interpretative Ruling No. 308 (Mar. 3, 1980). See also Interpretative Ruling No. 23 (May 26, 1977) (Committee recommended that a committee staff director not accept appointment to the advisory board of a college interested

in establishing a center which might be eligible for partial federal funding, pursuant to legislation then under consideration by the employing committee.) 174 See Interpretative Ruling No. 126 (May 5, 1978). 175 See Interpretative Ruling No. 297 (Dec. 18, 1979).

Committee recommends against the voluntary service, which could lead to a conflict of

interest. 171

Example 24. Staffer S–1, who works on the Aging Committee, is invited to serve on

the Board of Directors of a non-profit organization formed for the objective of promoting

elder housing. The organization does not lobby or receive federal money. Because the

Aging Committee, on which the supervising Senator sits, has jurisdiction over issues

dealing with elder care, the organization has an interest in legislation in this area, and

the staffer advises the supervising Senator in such matters, a conflict of interest may be

created and, thus, the staffer should refrain from serving on the board.

Example 25. Staffer S–2, who works in a Senate personal office as State Director, is

invited by a private child care center to accept an uncompensated position on its board

of directors. In addition to private tuition, the center receives funding through a federal

grant for a state-wide nutrition program. The board manages the bookkeeping for the center’s receipt of the program, but is not responsible for the implementation or oversight

for the program and does not write the grant application. If the board ever must take

a vote related to the program, staffer S–2 would recuse himself. The staffer does not

perform official duties related to child care and the staffer’s supervising Senator does

not sit on a committee that oversees the grant process. Under these circumstances, the

initial decision on whether the staffer may engage in the outside activity is one for the

supervising Senator, who must monitor the situation to protect the Senate against any

conflict of interest.

Example 26. Staffer S, who works for the Committee on Agriculture, Nutrition, and Forestry, is invited to serve without pay on the board of a state university publication which

is funded in part by the Department of Agriculture. Because his employing committee

has jurisdiction over legislation and authorizations affecting the publisher, an appearance

of a conflict of interest might result if S accepted the position. 172

Example 27. Staffer T, a field representative for Senator U, is invited to serve on the

board of a federally-funded non-profit organization. U is a member of the oversight committee for the federal agency providing the funds. The organization’s grant applications

are handled through the Senator’s office, which T supervises. T’s supervisory role may

result in the appearance of a conflict between her official responsibilities and her fiduciary duties to the non-profit. If she were personally involved in processing the application, an actual conflict of interest might be presented. T should thus decline. 173

Example 28. Staffer V, a caseworker in the state capital, is offered an uncompensated

position on a state literacy commission which receives funding from the federal government. V’s employing Senator does not serve on any Committee with oversight or appropriation authority in the area of education. V has no duties related to education. V’s service on the commission would not present a conflict of interest. V must secure the approval of his employing Senator before accepting. 174

Example 29. Staffer W, whose Senate salary exceeds $25,000, but is less than 120% of

GS–15, sits on the board of a 501(c)(4) educational foundation. W performs her board

activities, which are unrelated to her Senate job, on her own time and without compensation. The foundation offers to pay W as an independent consultant, to do work beyond

the scope of her board service. If the consulting duties are clearly distinguishable from

her board duties, and if her supervising Senator determines that the consulting will not

entail conflict of interest or interference with Senate duties, W may be paid as a consultant. 175

Example 30. Staffer X, who earns $50,000 a year as State Director for Senator Y, is

offered a compensated position as State Party Chair. X will perform his party duties on

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176 See Interpretative Ruling No. 359 (Jan. 3, 1983).

his own time. Since the party is not a business entity as contemplated by paragraphs 5(a)

and 6(a) of Rule 37, X may (with Y’s approval) so serve. 176

Example 31. Senator A accepts an uncompensated position on the board of trustees of

a private non-profit university. The Senator is asked by the university to sponsor and

support legislation to award a Federal grant to the university. Because Senator A’s service

on the board involves a fiduciary duty and an increased potential for an appearance of

a conflict of interest, the Committee advises that the Senator refrain from any official

action advocating any proposal of particular benefit to the university. Thus, so long as

the Senator remains on the university’s board, she should refrain from sponsoring or supporting the legislation to award the university a Federal grant.

Example 32. Prospective staffer B seeks employment with a Senator who serves on the

Environment and Public Works Committee as a projects assistant in the Senator’s state

office, acting as a liaison between business, communities, and local and federal agencies.

B would like to retain his current position as a commissioner of a state regional sewerage

transmission facility serving certain municipalities and involving Federal funds. Under

these circumstances, the prospective staffer should resign from the commission if he is

employed by the Senate, given that the Senator serves on a committee with jurisdiction

over environmental issues, including sewerage collection and disposal.

Example 33. Staffer D, who works in a personal Senate office, wishes to serve as a paid

director of his family’s majority owned beverage manufacturing and bottling company.

The staffer is paid at a rate less than 120% of GS–15 by the Senate. The term ‘‘publicly

regulated’’ as used in Senate Rule 37.6 means a corporation which is part of an industry

subject to specific regulation by a Federal agency, e.g. a broadcasting company which

would be regulated by the FCC. The term does not include a corporation which is subject

only to the general effect of broad-based regulations such as those issued by OSHA.

Thus, Staffer D may serve as a compensated director of the company if the supervising

Senator determines that such service would not create a conflict of interest with his official Senate duties.

Example 34. Staffer E, employed in the state office of a Member, is paid at a rate less

than 120% of GS–15 and is responsible for managing constituent services, various types

of case work, and promoting public awareness of the Member’s priorities. The Staffer

has been asked by a local women’s business organization to serve as an uncompensated

member of its board of directors. The group does not receive any Federal funding. The

staffer may accept the position with the approval of her supervising Senator.

Example 35. Staffer F works on a Senate committee with duties involving social service

issues, including child welfare issues. A non-profit child welfare foundation has asked

the staffer to serve as an uncompensated member of the group’s board of trustees. The

foundation does not lobby Congress and does not accept Federal money. The Committee

notes that the foundation appears to have an interest in legislation in the area of child

welfare, that such legislation appears to be within the jurisdiction of the staffer’s employing committee, and that if the supervising Senator deals with issues which would be of

concern to the foundation, it is likely that the Senator would come to the staffer for input.

Thus, the Committee recommends that the staffer refrain from serving on the foundation’s board of trustees.

Teaching

In addition to the fiduciary restrictions, Rule 37(5)(b) also contains a limit on teaching. By

its terms, Members and covered employees may not teach for compensation, unless they receive

prior written permission from the Committee on Ethics (those earning less than 120% of GS–15

may, but are not required to, obtain prior permission from the Committee). This requirement ensures that teaching does not become an avenue for circumventing the honoraria ban. The Committee therefore scrutinizes each request. In order to receive approval, the individual seeking to

teach must generally affirm in writing that the teaching meets the following criteria:

80 SENATE ETHICS MANUAL

177 See Interpretative Ruling No. 238 (Mar. 26, 1979), and PROFESSIONAL/FIDUCIARY RESTRICTIONS, supra. 178 See Senate Rule 37(2). 179 See, e.g., ABA MODEL RULES OF PROFESSIONAL CONDUCT RULE 1.7; MODEL CODE OF PROFESSIONAL RESPONSIBILITY, Canon 7, DR 5–105, EC 5–1, EC 5–14, EC 5–15, EC 5–21. 180 18 U.S.C. § 204. 181 46 U.S.C. § 1223(e).

1. The teaching is part of a regular course of instruction at an established academic institution, involving services on an ongoing basis, rather than payment for individual appearances.

2. The compensation is reasonable and derived from the institution’s general funds, not

supported by earmarked grants, appropriations, or contributions by other entities.

3. Responsibilities include class preparation, lecture presentation, and student evaluation

(grading papers, testing, and homework, etc.).

4. Students receive credit for the course taught.

5. No Senate resources or time are used in connection with the teaching.

Each teaching arrangement is evaluated on its own merit. There may be situations where the

Committee approves a teaching arrangement even though one or more of the general criteria are

not met. For example, the Committee has found it appropriate to approve a teaching arrangement

for a continuing adult education course where the other criteria were met, but the course was not

for credit and the students were not given tests. The Committee will only approve teaching that

comports with Rule 37’s other provisions. Notably, the compensation may not result from the improper exertion of official influence (Rule 37, ¶ 1) and the employment may not be inconsistent

or in conflict with the conscientious performance of official duties (Rule 37, ¶ 2). The Committee

will also approve requests to teach for compensation in less formal settings such as Sunday school,

piano lessons, aerobics classes, specialized or continuing professional training courses, and other

situations, where the teaching is clearly unrelated to official duties or an individual’s Senate position.

Legal Practice

While the Ethics Reform Act severely curtails the paid practice of law by Members and senior

staffers (those earning 120% of GS–15 or more), these persons may still practice without compensation, and other Senate employees may practice for compensation (without affiliating and with

the approval of their supervisors), 177 within the following parameters:

1) No public official should take on a private obligation that conflicts with his or her

primary duty to serve the public interest. 178 The lawyer’s duty of undivided loyalty to his

or her clients 179 makes the practice of law particularly susceptible to conflicts with the wideranging responsibilities of Members and staff.

2) Senate lawyers who wish to maintain private practices should also consult their local

bar associations with respect to professional restrictions on them.

3) Federal law prohibits Members from practicing in the United States Claims Court or

the United States Court of Appeals for the Federal Circuit 180 or from serving as attorneys

to contractors or charterers holding contracts under the Merchant Marine Act. 181

4) In addition, Members and employees may not privately represent others before federal

agencies, as described below.

REPRESENTING OTHERS BEFORE THE FEDERAL GOVERNMENT

Federal criminal law prohibits Members, officers, and employees from privately representing

others before the Federal Government. One provision bars these individuals from seeking or receiving compensation (other than as provided by law) for ‘‘representational services’’ before any

Government agency, department, court, or officer in any matter or proceeding in which the United

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182 United States v. Sweig, 316 F. Supp. 1148, 1157 (S.D.N.Y. 1970). 183 May v. United States, 175 F.2d 994 (D.C. Cir.), cert. denied, 338 U.S. 830 (1949). 184Letter from Leon Ulman, Dep. Ass’t Att’y Gen., Office of Legal Counsel, Dep’t of Justice (Mar. 14, 1978). 185 18 U.S.C. § 216. 186 United States v. Podell, 436 F. Supp. 1039 (S.D.N.Y. 1977), aff’d, 572 F.2d 31 (2d Cir. 1978); also United

States v. Eilberg, 507 F. Supp. 267 (E.D. Pa. 1980). 187 18 U.S.C. §§ 203(d), 205(e).

States is a party or has an interest (18 U.S.C. § 203; see Appendix D). A second provision forbids

any officer or employee from acting ‘‘as agent or attorney for anyone’’ (other than in the proper

discharge of official duties) before any Government entity in any particular matter in which the

Government has an interest, whether or not the individual is compensated (18 U.S.C. § 205; see

Appendix D). The individual need not actually be an attorney or have a strict common law agency

relationship with another in order to be restricted by the statute. 182 It does not appear that representations before Congress are a restricted activity under section 205, since Congress does not

appear to be a department, agency, or court under the terms of section 205 (See Memorandum

from Walter Dellinger, Assistant Attorney General, U.S. Department of Justice, November 7,

1994). However, while section 205 may not apply to representations before Congress made by

a Senate officer or employee in a private capacity, such representations may well raise issues of

possible improper conduct reflecting upon the Senate, as well as conflict of interest questions

under Senate Rule 37, depending upon the facts of the particular case.

Under section 203, a Member, officer, or employee of the Senate may not receive compensation, other than congressional salary, for any dealings with an administrative agency on behalf of

a constituent or any other person or organization. Even if contacting a federal agency on behalf

of a private individual or organization is within the scope of official duties, an individual who

accepts additional compensation for such services has violated the law. 183 In this sense, Section

203 supplements the law against illegal gratuities discussed in Chapter 1.

Section 203 prohibits the receipt of compensation ‘‘directly or indirectly’’ for services before

federal agencies. Therefore, if a Member or employee is in a partnership arrangement or otherwise

shares in fees from services rendered before federal agencies, a violation of this provision may

occur even if the individual did not personally perform the services. The Department of Justice

has stated, for example, that section 203 ‘‘bars a partner in a law firm from sharing in any fees

received by the firm before any Federal department or agency during the time he is or was a

Federal employee.’’ 184 This same informal letter opinion notes, however, that the Justice Department ‘‘has interpreted § 203 not to apply to a person who receives a fixed salary as an employee

of a firm (as opposed to someone who shares in the firm’s profits), even though some of the

firm’s overall income may be attributable to service covered by § 203.’’

Both sections 203 and 205 carry the same possible penalties: imprisonment for up to one year

(or five years if the violation is willful); a civil fine of up to $50,000 per violation or the amount

received or offered for the prohibited conduct (whichever is greater); and/or a court order prohibiting the offensive conduct. 185 In one case, a federal court held a former Member of Congress

liable for repayment of compensation unlawfully received. The court ruled that a violation of section 203—

. . . unquestionably demonstrates a breach of trust, for in order to fall within its prohibition, a member of Congress must shed the duty of disinterested advocacy owed the government and his constituents in favor of championing private interests potentially inconsistent with this charge. 186

Sections 203 and 205 exempt certain activities. Individuals may represent themselves before

the Government. One may also represent one’s spouse, parent, child, or any person for whom one

serves as guardian, trustee, or personal fiduciary. 187 Even on behalf of these people, however, the

individual must refrain if the matter at issue is one in which he or she participated personally

82 SENATE ETHICS MANUAL

188 See Senate Rule 37, paragraph 3. 189 18 U.S.C. § 205(d). 190The criminal statute specifically exempts contracts entered into under the Reconstruction Finance Corporation

Act, the Agricultural Adjustment Act, the Federal Farm Loan Act, the Emergency Farm Mortgage Act of 1933, the

Farm Credit Act of 1933, the Home Owners’ Loan Act of 1933, the Farmers’ Home Administration Act of 1946, the

Bankhead-Jones Farm Tenant Act, crop insurance agreements and contracts that the Secretary of Agriculture enters into

with farmers (18 U.S.C. § 433). In addition, contracts under the Federal Farm Mortgage Corporation Act are exempt

from 41 U.S.C. § 22, as are contracts that the United States Information Agency makes in foreign countries (22 U.S.C.

and substantially on behalf of the Government or one which falls within his or her official responsibilities. A staffer needs the approval of his or her employing Member. 188 In addition, one may,

without compensation, represent anyone in a disciplinary, loyalty, or other personnel administrative

proceeding. 189 For further exemptions, one should refer to the text of sections 203 and 205 in

Appendix D of this manual.

Example 36. Staffer Z is a caseworker. Because of his sophistication in dealing with

Government agencies, Z’s sister asks him to represent her at an FCC hearing at which

she is contesting the agency’s denial of her license application. Z must decline.

Example 37. Staffer A’s parents have a dispute with the Social Security Administration.

Staffer A’s official responsibilities do not involve the matter in dispute and, thus, A may

represent her parents at their hearing.

Example 38. Staffer B is a tax lawyer. B’s college roommate has a dispute with the IRS

and asks B to accompany her and to assist her at the hearing. B may not do so, even

if she receives no compensation.

Example 39. Staffer C has a friend who is applying for a federal grant in an area unrelated to C’s official duties. The friend asks C to help him prepare the grant application.

C will accept no compensation for writing the grant application, on her own time, and

her name will not appear anywhere on the application. C will not have any contact with

the staff of the agency administering the grant. C may help her friend in this way as

it does not constitute representation.

Example 40. Staffer D has a friend who is applying for a federal grant in an area unrelated to D’s official duties. The friend asks D to help prepare the grant application, and

to sign it on her behalf (in case the administrator reviewing it has further questions).

D may not sign the application or otherwise represent his friend before the agency.

Pursuant to Senate Rule 37, paragraph 10, any employee of the Senate who is required to

file a public financial disclosure report may not participate personally and substantially as an employee of the Senate in any contact with any agency of the executive or judicial branch of government with respect to non-legislative matters affecting any non-governmental person in which the

employee has a significant financial interest. This restriction does not apply if an employee first

advises her supervising authority of her significant financial interest and obtains from her supervising authority a written waiver stating that the participation of the employee is necessary. A copy

of each such waiver is placed on file with the Ethics Committee.

Finally, employees of the Senate are advised that, other than in the performance of official

duties, a Senate employee should not represent others before Congress as this could reflect upon

the institution. That is, a Senate employee should not lobby Members, officers, or employees of

the Congress on behalf of others, except as part of his or her Senate duties. See the discussion

of ‘‘Negotiating for Future Employment’’ later in this chapter.

CONTRACTING WITH THE FEDERAL GOVERNMENT

Under the Federal Criminal Code, a Senator may not enter into a contract or agreement with

the United States Government. Any such contract is deemed void, and both the Member and the

officer or employee who makes the contract on behalf of the government may be fined (18 U.S.C.

§§ 431–32). Public contracting law further provides that no Member of Congress may share in

or benefit from any contract entered into by or on behalf of the United States. (41 U.S.C. § 22). 190

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§ 1472). The public contracting clause must appear, however, in contracts for the acquisition of land pursuant to flood

control laws (33 U.S.C. § 702m).

191 Memorandum from Lynda Guild Simpson, Deputy Ass’t Att’y Gen., Office of Legal Counsel, Dep’t of Justice,

to Robert C. MacKichan, Jr., Gen. Counsel, Gen. Services Admin. (Aug. 3, 1989); 4 Op. Att’y Gen. 47 (1842).

192 See Bernard J. McNamee & Edward M. Payne, III, Note, Conflict of Interests: State Government Employees,

47 Va. L. Rev. 1034, 1050–1051 (1961).

193 18 U.S.C. § 433.

194 See 39 Op. Att’y Gen. 165 (1938) (Member held 30% of corporation’s stock and was president of company);

33 Op. Att’y Gen. 44 (1921).

195 39 Op. Att’y Gen. 165, 170–171 (1938).

196Revised Statutes §§ 3739–3741, 2 Stat. 484, ch. 48 (Apr. 21, 1808).

197 41 C.F.R. §§ 3.601 - 3.602. See also 41 Comp. Gen. 569; Interpretative Ruling No. 367 (Apr. 11, 1983).

198 Senate Rule 37(2).

199Code of Ethics for Government Service, 72 Stat., pt. 2, B12, ¶ 7 (1958) (emphasis added).

The criminal law precludes Members from ‘‘directly or indirectly’’ holding, executing, undertaking, or enjoying ‘‘in whole or in part’’ any contract with the Government. The Attorney General has interpreted this language to prohibit a general or limited partnership that includes a Member of Congress from entering into a contract with the federal government. 191 There are no definitive federal rulings as to whether a Member of Congress may receive compensation as an employee, rather than a partner, of an organization holding a government contract. Some state decisions, however, do prohibit such arrangements. 192 Even a Member of Congress who receives compensation (e.g., as salary or subcontract) under an independent organization’s government contract

might be considered to be improperly benefiting from that federal contract.

Unlike a partnership, a corporation with a relationship to a Member of Congress may enter

into a contract with the federal government for the general benefit of the corporation. 193 Thus,

a Member of Congress apparently may be a stockholder, even a principal stockholder, or an officer

of a corporation that holds a Government contract without incurring criminal liability. 194 Similarly,

the spouse of a Member may enter into a contract with the federal government. Incorporating for

the obvious purpose of circumventing the statute’s prohibition might, however, give rise to a cause

of action, and justify a ‘‘piercing of the corporate veil.’’ 195 It would appear that the statutory exception in the criminal law for contracts with corporations would likewise apply to the contract

law provision of 41 U.S.C. § 22, since all the provisions discussed, and the exceptions to them,

were originally passed as part of the same act. 196

In addition, Federal Acquisition Regulations state that contracts between the government and

federal employees (including employees of the Senate), or firms substantially owned or controlled

by federal employees, should not knowingly be made ‘‘except for the most compelling reasons,’’

such as where the needs cannot otherwise be reasonably fulfilled. 197 The Senate Code of Conduct

generally prohibits any outside activity that ‘‘is inconsistent or in conflict with the conscientious

performance of official duties.’’ 198 While not enforced as a disciplinary standard in the Senate,

the Code of Ethics for Government Service, which may nonetheless provide useful guidance, specifically states that an employee ‘‘[s]hould engage in no business with the Government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental

duties.’’ 199

Example 41. The Resolution Trust Corporation holds an auction of assets of failed banks.

Senator E may not purchase anything at the auction because the contract of sale would

be a contract with the government.

Example 42. Senator F is invited to speak at a conference sponsored by the executive

branch. Although private sector speakers at this conference are receiving fees, F may not

accept payment. F may accept reimbursement from the sponsoring agency for necessary

travel, food, and lodging expenses.

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200 5 U.S.C. § 5533(c)(1); the dual compensation figure was $23,165 for CY 1997. See Interpretative Ruling No.30

(June 13, 1977). 201 5 U.S.C. § 5531. 202 5 U.S.C. § 5533(c)(4). See Interpretative Ruling No. 367 (Apr. 11, 1983). 203 5 U.S.C. § 5533(c)(2). 204 See Interpretative Ruling No. 207 (Dec. 11, 1978). 205 See Interpretative No. Ruling 387 (Sept. 17, 1984). 206 See Interpretative Ruling No. 402 (Oct. 18, 1985); Interpretative Ruling No. 326 (July 1, 1980); Interpretative

Ruling No. 288 (Oct. 16, 1979); Interpretative Ruling No. 269 (June 26, 1979); Interpretative Ruling No. 194 (Oct.

18, 1978); Interpretative Ruling No. 154 (June 22, 1978); Interpretative Ruling No. 153 (June 22, 1978); S. Rep. No.

95–241. 207 See Interpretative Ruling No. 197 (Oct. 31, 1978); Interpretative Ruling No. 59 (Sept. 13, 1977).

DUAL GOVERNMENT EMPLOYMENT

A Senate employee may not hold another non-Senate federal job if the salaries of the two

positions combined exceeds $26,985 for CY 2002. 200 A ‘‘position’’ means ‘‘a civilian office or

position (including a temporary, part-time, or intermittent position), appointive or elective, in the

legislative, executive, or judicial branch of the [Federal] Government.’’ 201 The dual employment

bar does not apply when the positions involved are expert or consultant positions and pay is received on a ‘‘when-actually-employed’’ basis for different days. 202 An individual also may not

hold two Senate jobs, if the combined salary exceeds the maximum annual rate of pay authorized

to be paid out of a Senator’s clerk hire allowance. 203 Thus the law allows Senate employees to

work part-time and allows Senate personal offices to share employees, as long as each employee

receives pay commensurate with the work done for each office and no individual’s combined salary exceeds the cap. No authority permits an employee to receive compensation simultaneously

from a personal office and a committee (with a statutory exception applicable to only the Chairman and Vice Chairman of the Ethics Committee), nor is there any authority for an employee

to receive compensation simultaneously from two committees.

Example 43. Staffer G works Mondays, Wednesdays, and Fridays in Senator H’s office.

G is offered a job working Tuesdays and Thursdays in Senator I’s office. As long as

both Senators approve the arrangement, G may work part-time in each of two Senate

offices. 204

CAMPAIGN WORK

Senate Rule 41 provides that no officer or employee of the Senate may receive, solicit, be

a custodian of, or distribute any funds in connection with any campaign for the nomination for

election, or the election, of any individual to be a Member of the Senate or to any other federal

office, unless the employee is appropriately designated by a Senator to receive such funds. Such

political fund designees may raise federal campaign funds only for a campaign committee established and controlled by a Senator or group of Senators. 205 Thus, an employee could not be a

political fund designee with respect to a campaign committee unless it was organized and controlled by a Senator or group of Senators.

As long as they do not use any official resources and they have the approval of their supervisors, Senate employees are free to engage in other campaign work, as volunteers or for pay,

on their own time, so long as such activity complies with Senate Rule 41.1. 206 An employee’s

‘‘own time’’ includes non-Senate hours such as weekends, or vacation time accrued and taken in

accordance with established office policy. If an employee intends to spend substantial time on

campaign activities, over and above accrued leave, the supervising Senator should reduce the individual’s Senate salary proportionately or remove the person from the Senate payroll. 207

Members, officers and employees earning at or above 120% of GS–15 ($99,096 for CY 2002)

are subject to the limits on outside earned income imposed by Rule 36 and the Ethics in Government Act. The outside earned income limit is $22,500 for CY 2002). In addition, pursuant to Rule

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208Local laws should be consulted as some jurisdictions bar their officials from simultaneously holding federal positions.209 See Interpretative Ruling No. 312 (Mar. 20, 1980) (state commission); Interpretative Ruling No. 273 (July 9,

1979) (state legislature); Interpretative Ruling No. 155 (June 28, 1978) (unnamed state office); Interpretative Ruling No.

109 (Mar. 23, 1978) (state legislature); Interpretative Ruling No. 55 (Sept. 7, 1977) (city council). 210 See Senate Rule 37(2). See also Code of Ethics for Government Service, Appendix E, ¶ 3. 211 See Senate Rule 37(1); Code of Ethics for Government Service, Appendix E, ¶ 5.

37.6(b), it appears that an employee earning at or above 120% of GS–15 could not serve for compensation as an officer (or member of the board, if applicable) of the campaign organization. Senate Rule 41.1 and political activity in general by Senate Members, officers, and employees are

discussed in more detail in Chapter 5.

Holding State or Local Office

Senate employees are often tempted to run for local offices themselves. No federal statute

or Senate rule prohibits this. 208 Senate Rule 35, paragraph 1(c)(2) [the Senate Gifts Rule] is interpreted to authorize contributions to state and local campaigns. Also, several rulings of this committee specifically permit running for and holding state and local elected office, assuming that the

employee’s supervisor approves and that the local service will not interfere with Senate duties. 209

Holding elective office is not deemed to be a restricted professional activity involving a fiduciary

relationship under Rule 37.5(b), nor is it restricted service as an officer of an association, corporation, or other entity under Rule 37.6(b). However, officers and employees earning at or above

120% of GS–15 ($99,096 for CY 2002) are subject to the limits on outside earned income imposed by Rule 36 and the Ethics in Government Act. Staff should take care to avoid any undertaking that is inconsistent with congressional responsibilities. The Committee suggests that supervising Senators consider whether salary adjustments or restrictions in Senate duties might be appropriate for staffers who take on such substantial outside time commitments (e.g., where a staffer

serves in a state legislature which meets for only a portion of the year, a temporary adjustment

in the staffer’s Senate duties and pay might be in order during the state legislative session).

Employees who hold local office may not do so to the neglect of Senate duties, nor on ‘‘official time’’ during which they receive a government salary. 210 No local elective service may be

performed in the congressional office or in a manner that utilizes any official resources, including

the telephones. In dealing with the public, staff who serve as local officials should always make

clear in which capacity they are acting. They should discourage any suggestion that their local

constituents will receive special treatment from the Senate office, beyond that received by other

residents of the state. 211

Senate employees should also recall that they are prohibited by 18 U.S.C. § 205 from acting

as an agent in connection with any particular matter in which the United States has a direct and

substantial interest, except in the course of their official Senate duties. Section 203 of Title 18

makes it unlawful, except in the course of Senate duties, to be compensated for representing others

(presumably including a local government) before any federal department or agency in any matter

where the United States has an interest. While the Committee is not aware of any local official

being prosecuted under these statutes, employees should avoid situations that might be construed

as unlawful representation of a locality before the federal government.

Holding Federal Office

Senate Rule 41.1 limits the handling of federal campaign funds by Senate employees to designated staff. Pursuant to these restrictions, the Committee has previously held that a Senate employee is prohibited from forming a principal campaign committee pursuant to the Federal Election

Campaign Act (FECA), and from receiving, soliciting, being the custodian of, or distributing funds

in connection with his campaign for federal office except where the employee is a political fund

designee and the employee’s campaign committee is established and controlled by a Senator or

86 SENATE ETHICS MANUAL

212Comp. Gen. Op. B–169035, 49 Comp. Gen. 819, 820 (1970); see also Comp. Gen. Op. B–180472 (Mar. 4,

1974).213 5 U.S.C. § 7342. But see 37 U.S.C. § 908, consenting to the civilian employment of retired military members

and members of the reserve by foreign governments, when approved by the relevant Cabinet Secretaries. 214Comp. Gen. Op. B-l80472, supra note 97. 215 18 U.S.C. § 219; see Foreign Agents Registration Act, 22 U.S.C. §§ 611–621. 216 2 U.S.C. § 441e.

group of Senators. Absent such an arrangement, the employee must leave the Senate payroll in

order to run for federal office.

Jury Duty

2 U.S.C. 130b prohibits the receipt of fees for service as a juror in a court of the United

States or the District of Columbia. The District of Columbia does designate a small sum (e.g. $2

in 1999) as a ‘‘transportation expense reimbursement’’ and this small sum may be retained. All

fees for service, however, must be either refused or turned over to the United States Treasury (contact the Financial Clerk at the Disbursing Office for instructions on remitting the funds). By analogy to the federal statute, the Committee has similarly advised Senate Members, officers, and employees who serve on a jury in any state or local court to refuse any fee for service or turn the

funds over to the United States Treasury. Only that amount of any payment which is specifically

designated by the jurisdiction making the payment as an ‘‘expense reimbursement’ may be retained. If no part of the payment is so designated, then all the funds should be remitted to the

Financial Clerk for deposit to the United States Treasury

FOREIGN GOVERNMENTS

The United States Constitution prohibits any Member or employee of the Senate (as well as

any other federal official) from receiving a ‘‘molument’’ of ‘‘any kind whatever’’ from a foreign

government or a representative of a foreign state, without the consent of the Congress (Article

I, Section 9, clause 8). An ‘‘emolument’’ means ‘‘any profit, gain, or compensation received for

services rendered.’’ 212 Although Congress has consented, in the Foreign Gifts and Decorations

Act, to the acceptance by federal officers of certain gifts, no statute grants a general consent for

the receipt of emoluments or other compensation from foreign governments. 213

Therefore, Members and employees may not receive any payment for services rendered to official foreign interests, such as ambassadors, embassies, or agencies of a foreign government. Caution should thus be exercised in accepting expenses or other compensation from any foreign organization (such as a foundation) that receives sponsorship, funding, or licensing from a foreign government because it could be considered an official arm or an instrumentality of the government.

The Comptroller General has ruled, for example, that a Member of Congress could not accept a

fee from the British Broadcasting Corporation for participation in a television program to discuss

the American Presidency. The BBC, because of its funding relationship and regulation by the British Government, was considered an instrumentality of the British Government, and thus a ‘‘foreign

state’’ under the constitutional ban. 214 A Member or employee could, however, accept necessary

expenses to speak before or perform some other service for an organization that is incorporated

in the United States, even one that is foreign owned.

Regardless of compensation, a public official may not act as an agent or attorney for a foreign

principal required to register under the Foreign Agents Registration Act of 1938, as amended, that

is, generally, those individuals engaged in lobbying, political, or propaganda activities on behalf

of foreign governments or political parties. 215 In addition, United States officials may not accept

campaign contributions from foreign nationals. 216

POST-EMPLOYMENT RESTRICTIONS

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217 See generally 18 U.S.C. § 207(e)-(f). Executive branch officers and employees have long labored under restrictions on their professional activities upon leaving office. Depending on how closely those activities touch upon their

former Federal responsibilities, the restraints could last one year, two years, or permanently. See generally 18 U.S.C.

§ 207(a)-(d). 218 18 U.S.C. § 207(e)(6)(A). 219While Senate Rule 37(8) and (9) do not, by their terms, preclude communications by a former committee staffer

with personal office staff (or the converse), caution is advised with respect to such communications. Also, for some

leadership staffers, it is possible that more than one Senator could be considered ‘‘the leadership Member employing

the staffer.’’ For example, the party leader may authorize a staffer’s pay and a leadership committee chairman may

directly supervise the staffer, such that both could be Members whose personal staff that former staffer may not lobby.

Senate rules have long barred Senators and their staffs from lobbying former Senate colleagues, employees, and employers for one year after leaving office. The Ethics Reform Act of

1989 enacted, for the first time, statutory post-employment restrictions on certain legislative branch

officials, codified at section 207 of the Federal Criminal Code. 217 These limitations went into effect for Members with the swearing in of the 102d Congress on January 3, 1991 at noon, and

for staff on January 1, 1991. The law applies only to Members, officers, and those employees

who earn at a rate of pay at least 75% of a Member’s salary ($112,500 in CY 2002). 218 An

employee must have earned that salary for at least 60 days in the year prior to leaving government

service for the statutory restrictions to apply. Senate rules, on the other hand, set some post-employment lobbying limits on every Senate Member and employee for one year after leaving the

Senate, regardless of Senate salary.

Restrictions Under Senate Rule

Senate Rule 37(8) and (9) limit the activities of those who leave the Senate and become registered lobbyists (under the Federal Regulation of Lobbying Act of 1946 or any successor statute,

i.e. the Lobbying Disclosure Act of 1995). Senators who become registered lobbyists, or who are

employed or retained by such persons for the purpose of influencing legislation, may not lobby

Members, officers, or employees of the Senate for a period of one year after leaving office. Employees who become registered lobbyists, or who are employed or retained by such persons for

the purpose of influencing legislation, may not lobby their former offices for one year after leaving

the Senate. That is, an employee on the personal staff of a Senator may not lobby that Senator

or his or her personal staff for one year; an employee on a committee staff may not lobby the

members or staff of that committee (including all subcommittee’s thereof) for one year; an employee on a leadership staff may not lobby any member or staff of the leadership of the same

party (including the personal staff of the leadership Member employing the staffer). 219 A former

leadership staffer could lobby the leadership of the other party under the Senate Rule (but see

18 USC 207, to the contrary).

Occasionally, a staffer hired for one Senate position is required to take on substantive responsibilities usually associated with a position on a different payroll, thereby incurring post employment restrictions with respect to both positions. For example, a staffer on the Member’s personal

staff who also undertakes substantive responsibilities for a committee on which the staffer’s supervising Member sits, should refrain from lobbying the committee members or committee staff for

one year from the date the staffer last performed services for the committee. Substantive committee

responsibilities include assisting in the drafting of committee bills or assisting at hearings and in

mark-up (as opposed to committee monitoring and liaison services for a Member’s personal office). Such a staffer typically is based in the personal office, but is given full access to Committee

staff files. The staffer, of course, would also be banned for a period of one year from lobbying

the employing Member and the staff of the Member’s personal office. For example, a staffer on

the personal office payroll of a Senator on the Agriculture Committee, whose responsibilities included representing his or her Senator at committee bill drafting sessions, and attending committee

meetings and mark-ups with the Senator, and who was given access to committee staff files would

88 SENATE ETHICS MANUAL

220 See Senate Rule 41(2)-(4); see also Interpretative Ruling No. 432 (Apr. 20, 1988). This definition of employee

includes fellows who perform full-time Senate services for more than 90 days and who receive compensation therefor

from any source other than the United States Government.

221 See Interpretative Ruling No. 218 (Jan. 15, 1979).

222 See Interpretative Ruling No. 275 (July 17, 1979).

223 See Interpretative Ruling No. 396 (May 13, 1985).

be prohibited from lobbying the Senator and his personal office staff AND the Members of the

Agriculture Committee and its staff.

Rule 37(11) sets forth various definitions in the context of this lobbying restriction:

• An employee is anyone whose salary is disbursed by the Secretary of the Senate;

or, whose services, as an officer or employee of the government, are utilized by a Senate

committee; or, whose services, regardless of Government employment, are utilized on a

full-time basis, for more than ninety days in a calendar year, in the conduct of official

duties of any Senate committee or office. 220

• A subcommittee staffer is treated as an employee of the relevant full committee.

• ‘‘Lobbying’’ means ‘‘any oral or written communication to influence the content

or disposition of any issue before Congress, including any pending or future bill, resolution, treaty, nomination, hearing report, or investigation.’’ This definition specifically excludes:

(1) a communication (i) made in the form of testimony given before a committee or office

of the Congress, or (ii) submitted for inclusion in the public record, public docket, or

public file of a hearing; or

(2) a communication by an individual, acting solely on his own behalf, for redress of

personal grievances, or to express his personal opinion.

The Committee construes these restrictions to apply to anyone required by the Lobbying Registration Act to register as a lobbyist, whether or not they actually do register. 221 As long as any

partner or associate in a law firm is a registered lobbyist, then any former Senator or staffer employed by that firm, within a year of leaving the Senate, for the purpose of influencing legislation,

is covered by the lobbying restriction. Having a restricted former Senate individual join a firm,

however, does not bar any other member or employee of the firm from lobbying. 222 An individual

who leaves the Senate and then returns for a period of time will be restricted for one year from

his or her final termination date. 223

The Lobbying Registration Act also limits the exemption from registration for those who

lobby on behalf of certain government entities. Employees of the following types of government

groups must register under the Act if they meet the Act’s lobbying thresholds: college or university

employees; employees of a government-sponsored enterprise; employees of a public utility that

provides gas, electricity, water or communications; or employees of a guaranty agency. Thus, if

a Senate personal office employee leaves the Senate to join a state college as a lobbyist and is

required to register under the Act, under Rule 37.9, the employee would be restricted from lobbying his former employing Senator and the personal office for a period of one year from his

final termination date.

The Secretary of the Senate implements the Lobbying Registration Act for the Senate and is

the appropriate office with jurisdiction to answer questions about the Act’s application to particular

situations or individuals.

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224 18 U.S.C. § 207(e)(1). Other legislative offices include the Architect of the Capitol, the United States Botanic

Garden, the General Accounting Office, the Government Printing Office, the Library of Congress, the Office of Technology Assessment, the Congressional Budget Office, and the Capitol Police. See 18 U.S.C. § 207(e)(7)(G). 225 18 U.S.C. § 207(e)(1). 226 18 U.S.C. § 207(e)(2). 227 18 U.S.C. § 207(e)(3). 228The ‘‘leadership’’ of the Senate consists of the Vice President, the President pro tempore, Deputy President pro

tempore, majority leader, minority leader, majority whip, minority whip, chairman and secretary of the Conference of

the Majority, chairman and secretary of the Conference of the Minority, chairman and co-chairman of the Majority Policy Committee, chairman of the Minority Policy Committee, and any similar later-created position. 18 U.S.C. §

207(e)(7)(M). 229 18 U.S.C. § 207(e)(4). While the statute does not, by its terms, preclude contacts with the personal office staffs

of members of the leadership, such contacts might be deemed indirect efforts to influence the Members themselves

(which would be barred if done directly) and therefore should probably be avoided under section 207, particularly given

the ambiguity of the definition of ‘‘employee on the leadership staff’’ in section 207(e)(7)(I). Moreover, the Committee

has determined that, under Senate Rule 37.9, a former employee on a leadership staff may not lobby the personal office

staff of the leadership Member who employed him or her for one year. 230 18 U.S.C. § 207(e)(5). For these employees, like executive branch employees, post-employment restrictions do

not go into effect unless their rate of basic pay equalled or exceeded that in effect for level V of the Executive Schedule

($121,600 in 2002). 18 U.S.C. § 207(e)(6)(B). 231 18 U.S.C. § 207(g).

Restrictions Under Criminal Law

The criminal law (18 U.S.C. 207(e)-(f)) imposes a similar, but not identical, one-year ‘‘cooling-off period.’’ Under the law, for one year after leaving office, a covered former legislative employee (i.e., who is paid at a rate of at least 75% of a Member’s salary for a period of at least

60 days (in the aggregate) during the last year of employment, $112,500 for CY 2002) may not

‘‘knowingly [make], with the intent to influence, any communication to or appearance before

[specified current officials] on behalf of any other person (except the United States) in connection

with any matter’’ on which the former officeholder seeks official action. This ban applies to all

covered former employees regardless of whether the employee is a registered lobbyist. Thus:

• Former Members may not seek official action, on behalf of others, from current

Members, officers, or employees of either the Senate or the House of Representatives

or from current employees of any other legislative office. 224

• Former elected officers of the Senate may not seek official action, on behalf of

others, from current Members, officers, or employees of the Senate. 225

• Covered former employees on the personal staff of a Member may not seek official action, on behalf of others, from that Member or from any of the Member’s current

employees. 226

• Covered former committee staff may not seek official action, on behalf of others,

from any current Member or employee of the employing committee (including all subcommittees thereof) or from any Member who was on the committee during the last

year that the former employee worked there. 227

• Covered former employees on the leadership staff may not seek official action,

on behalf of others, from current Members of the leadership 228 or any current leadership

staff employees. 229

• Covered former employees of any other legislative office may not seek official

action, on behalf of others, from current officers and employees of that legislative office. 230

For the purposes of this statute, detailees are deemed to be employees both of the entity from

which they come and the entity to which they are sent. 231

These restrictions bar certain types of contacts with certain categories of officials, basically

former colleagues and those most likely to be influenced on the basis of the former position. Note

that the scope of covered activities (‘‘any communication to or appearance before’’) is broader

than the lobbying activities prohibited by the Senate Rule. The law focuses on communications

90 SENATE ETHICS MANUAL

232 Former officials who are lawyers may be precluded from playing such background roles by bar association rules

mandating disclosure of their activities to their former agencies. See, e.g., ABA MODEL RULE OF PROFESSIONAL

CONDUCT 1.11. Lawyers who leave government service should consult their local bar associations for guidance. 233 18 U.S.C. § 207(f). 234 18 U.S.C. § 207(b). 235 However, Senate Rule 37.9 covers all Senate employees, regardless of salary level. 236 See 18 U.S.C. § 216.

and appearances. By contrast, if a former official plays a background role, does not appear in person or convey his or her name on any communications, the law apparently does not prohibit that

person from advising those who seek official action from the Congress. 232

The law does, however, absolutely preclude two sets of activities regardless of whether the

former official acts openly or behind the scenes. None of the officials subject to the limitations

described above may represent, aid, or advise a foreign entity (that is, a foreign government or

political party) with the intent to influence any officer or employee of any department or agency

of the United States Government. 233 In addition, in a provision applicable to any person who is

a former officer or employee of the legislative branch or a former Member of Congress, who participated personally and substantially in any ongoing trade or treaty negotiations on behalf of the

United States within the 1-year period preceding the date on which his or her service or employment with the United States terminated, and who had access to confidential information about

those negotiations, the former employee, officer, or Member may not use that information to represent, aid, or advise anyone other than the U.S. Government concerning those negotiations. 234

Both of these restrictions again last for one year after leaving office.

Note that for Members, the law is more restrictive than the Senate rule. The law bars former

Senators from lobbying any Member or staffer of either the Senate or the House; the rule bars

former Senators from lobbying only Senate Members and staff. With respect to employees, the

law only restricts staff who were at the top of the Senate pay scale 235, but those employees are

limited in their contacts regardless of whether they become, or are employed by, registered lobbyists. All persons are advised to obey the broadest applicable restriction, whether it be under law

or rule, and individuals should be particularly careful to keep within the law, as it carries criminal

penalties.

Penalties

Violation of § 207 is a felony, carrying penalties of imprisonment and/or fines. The statute

authorizes imprisonment for up to one year (or up to five years for willfully engaging in the proscribed conduct). Additionally, an individual may be fined up to $50,000 for each violation or

the amount received or offered for the prohibited conduct, whichever is greater. The statute further

authorizes the Attorney General to seek an injunction prohibiting a person from engaging in conduct that violates the Act. 236

Exceptions

Under the law, the restrictions do not apply to official actions taken by employees or officials

of: the United States Government; the District of Columbia; state and local governments; accredited, degree-granting institutions of higher education; and hospitals or medical research organizations.

Bear in mind that due to limitations placed on certain government employees (e.g., state university employees) by the Lobbying Registration Act, Senate Rule 37.8 and 9 (which apply to

all salary levels) restrict some lobbying activities which are not prohibited by the criminal statute

(which applies to salaries at or above (T2$112,500 for 2002). Thus, for example, a Senate employee who leaves a Senate committee position at a salary greater than $105,975 and joins a state

university as a registered lobbyist, would not be prohibited under the criminal statute from lobVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00104 Fmt 5222 Sfmt 5222 SMANUAL.003 ETHICS1 PsN: ETHICS1
CHAPTER 3 91

237 See 18 U.S.C. § 207(j).

238 See Interpretative Ruling 380 (Mar. 1, 1984).

bying her former committee colleagues, but would be prohibited by Senate Rule 37.9 from doing

so (at any salary level).

The criminal law restrictions further do not preclude activities on behalf of international organizations in which the United States participates, where the Secretary of State certifies in advance

that such activities serve the interests of the United States. In addition, section 207 does not prevent individuals from making uncompensated statements based on their own special knowledge,

from furnishing scientific or technological information in areas where they possess technical expertise, or from testifying under oath. 237 Similarly, as noted above, for purposes of the Senate rule,

lobbying does not include congressional testimony under oath, formal public comments, and expressions of personal opinion. Further, the restrictions of the statute do not apply to a communication or appearance made solely on behalf of a candidate in his or her capacity as a candidate,

an authorized campaign committee (which does not include a multi-candidate committee), a national committee, a national federal campaign committee, a state committee, or a political party,

by an employee of the persons or entities described above or by an employee of a person or entity

who represents, aids or advises only persons or entities described above. (See 18 U.S.C. 207(j)(7))

Example 44. Senator J retires in the middle of the 103d Congress to accept an appointed

position in an executive branch agency. J may lobby Congress on behalf of the agency.

Example 45. Senator K retires at the end of the 103d Congress. During the 104th Congress, a bill is considered that would repeal the law that K considers to be his finest

legislative achievement. K may contact any Member or employee of Congress, on his

own behalf, to express his personal opinion of the bill, taking care that he is not acting

on behalf of a client or employer.

Example 46. Staffer L, who earns more than 75% of a Member’s salary, resigns from

her position on Senator M’s personal staff to join a lobbying firm. She may not lobby

M or anyone on his personal staff for one year, but may lobby any other Member of

Congress as soon as she leaves.

Example 47. Staffer N, who earns more than 75% of a Member’s salary, resigns from

his position on the Finance Committee to join a law firm which includes registered lobbyists. Both law and rule prohibit him from lobbying any current member or staffer of

Finance for one year. The law further prohibits him from lobbying any Member who

was on that committee during N’s last year of Senate service (except on behalf of a legally exempt person or entity), for one year. He may, however, lobby any other Member

or staffer on any issue.

Negotiating for Future Employment

Members and employees, like all individuals in society, are entitled to search the marketplace

in order to secure employment after terminating their current positions. On the other hand, because

of the unique nature of their responsibilities to the Senate, including the influence which they exercise over the legislative process, and because all their actions are open to public scrutiny, Members

and employees seeking future employment are under a substantial obligation to avoid not only

an actual conflict of interest, but also the appearance of a conflict between their duties to the Senate and the interests of the prospective employers with whom they are negotiating. 238

Senator Paul Douglas vividly described the potential for corruption when a government official seeks employment with those who have public business before him or her.

The official becomes dissatisfied with his salary and his job. He begins to cast envious

glances at better-paid men in the private industry with which he is dealing. He wants

to join them, and he begins to wonder how he can do so if he offends the companies

which are involved. If he is to make the transfer, must he not stand well in the estimation

92 SENATE ETHICS MANUAL

239 Paul H. Douglas, Ethics in Government 52 (1952). 240 Senate Rule 37(1) - (2). 241 See Interpretative Ruling No. 380 (Mar. 1, 1984). 242 See Interpretative Ruling No. 79 (Oct. 11, 1977), and Section 1(c)(7)(A) & (B) of Senate Rule 35. 243 See Interpretative Ruling No. 177 (Sept. 26, 1978); Interpretative Ruling No. 131 (May 15, 1978).

of those who can hire him? As the official broods over these facts, the virtue begins

to ooze out of him. 239

The Senate Code of Official Conduct prohibits Senators and staffers from receiving compensation ‘‘by virtue of influence improperly exerted’’ from Senate positions or from engaging in any

outside activities that are inconsistent ‘‘with the conscientious performance of official duties.’’ 240

In light of these restrictions, individuals should be particularly careful in how they go about negotiating for future employment, especially when negotiating with someone who could be substantially

affected by the performance of official duties. It would be improper to permit the prospect of future employment to influence official actions. Therefore, it is advised that a Senate employee

should recuse himself from any contact or communication with a prospective employer on issues

of legislative interest to the prospective employer while job negotiations are under way (and that

the recusal should be expanded to include entities associated with the prospective employer once

an offer has been accepted). Under normal circumstances, a Senate employee who delivers his

or her resume to a group of fifty prospective employers would not, at this early stage, need to

recuse him or herself. Whether recusal would be necessary after the employee met with ten of

those prospective employers would depend, of course, upon the results of each meeting. On the

other hand, once the employee has directed his or her attention on two or three of the prospective

employers for further discussions, recusal is likely necessary. A Senate employee, however, with

the supervising Senator’s approval, may continue to staff Members and employees of the Senate

on issues which may be of interest to the prospective employer during the limited period that the

employee remains with the Senate. Generally, each Member must decide for himself or herself,

as well as for his or her staff members, what steps would be necessary to avoid not only the

conflict which may arise from negotiating or accepting prospective employment, but the appearance of such a conflict as well. Thus, as negotiations with prospective employers advance, there

necessarily comes a point where it is imperative that a staffer inform his or her supervising Senator

of negotiations, so that the Senator may make an informed decision as to how best to protect

against a conflict of interest.

Consistent with all of the above, Members and employees may carry out negotiations regarding terms and conditions of employment with prospective employers, and sign employment contracts. 241 They may accept travel expenses from potential employers for the purpose of attending

job interviews. 242 Agreements for future employment and expenses from any one source exceeding

$250 must be reported on the annual financial disclosure statements of any individuals required

to file. With the exception of a ‘‘displaced staff employee’’ (see, Standing Orders of the Senate,

section 72.6), an employee may begin a new job and accept compensation for it while still collecting Senate pay for accrued annual leave, so long as no services are performed for the Senate

during this period (if no Senate services are performed, there is nothing with which an outside

activity could conflict) and one’s Senate supervisor approves of the arrangement. 243 Such individuals otherwise remain subject to all other provisions of the Senate Code of Official Conduct during

the leave pay-out period, and the post-employment lobbying restrictions of Rule 37, paragraph 9

and 18 U.S.C. 207 will expire one year after the individual’s final day on the Senate payroll. Also,

such individuals must refrain from lobbying or otherwise contacting anyone in the federal government (including Congress) on behalf of any person or entity during the period that they remain

on the Senate payroll to be paid for accrued annual leave. (See the criminal provisions at 18

U.S.C. 203 and 18 U.S.C. 205, the section on ‘‘Representing Others Before the Federal GovernVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00106 Fmt 5222 Sfmt 5222 SMANUAL.003 ETHICS1 PsN: ETHICS1
CHAPTER 3 93

244 See generally MARC E. MILLER, POLITICIANS AND THEIR SPOUSES’ CAREERS (Congressional Management Foundation 1985).

ment’’, infra, this chapter, and Appendix E discussing ‘‘Improper Conduct Reflecting Upon the

Senate’’).

EMPLOYMENT CONSIDERATIONS FOR SPOUSES

Being married to a Senator or Senate staff member does not, of course, preclude one from

earning a salary. Certain aspects of a spouse’s employment, however, may have ramifications for

the Member. 244

Neither federal law nor Senate rules specifically preclude a Member’s spouse from engaging

in any activity on the ground that it could create a conflict of interest with the Member’s official

duties. However, Senate rules and statutory provisions impute to the Member certain benefits that

are received by the spouse. Thus the question may arise as to whether the Member is improperly

benefiting as a result of the spouse’s employment.

Senate Rule 37, paragraph 1, part of the Code of Official Conduct, prohibits a Member from

receiving any compensation, or allowing any compensation to accrue to the Member’s beneficial

interest, from any source as a result of an improper exercise of official influence. The income

received by a spouse from employment usually accrues, albeit indirectly, to a Member’s interest.

Nonetheless, this provision is not triggered by a spouse’s employment unless the Member has improperly exerted influence or performed official acts in order to obtain compensation for or as

a result of compensation to the spouse.

Standing Rule 34 (Public Financial Disclosure), requires a Senator to disclose the source of

any earned income in excess of $1,000 received by a spouse. The Committee has recognized that

the compensated employment of spouses is a matter of interest to the public. Thus, in Interpretative Ruling No. 336 (Sept. 5, 1980), the Committee stated its view that a Senator’s spouse’s lobbying on behalf of a corporation on whose board the spouse served, might, under certain circumstances, reflect adversely upon the Senate as an institution. The Committee has subsequently

ruled that the decision on whether a spouse may lobby the Senate is generally a decision for the

Senator and his or her spouse, giving due regard to the potential reflection upon the Senate. In

Interpretative Ruling No. 397 (May 24, 1985), the Committee found that no rule of the Senate

prohibited the spouse of a Senator from accepting compensated employment with a tax-exempt

educational organization where the spouse’s responsibilities were to be focused on educational activities for the public rather than lobbying the Congress. A spouse may, of course, supervise others

who lobby the Senate. As noted, compensated spousal employment must be disclosed by the Senator on the annual financial disclosure statement. Given the heightened public interest in the professional activities of spouses of Members, the Committee hopes that spouses, as well as Members,

will conduct their professional and business activities so as not to reflect adversely upon the Senate

as an institution.

With respect to the lobbying activities of spouses of Senate employees, the Committee has

concluded that the position of the Senate employee may, in certain circumstances, limit the ability

of the spouse to lobby. For example, to avoid any adverse reflection upon the Senate, the Committee has previously advised that the spouse of a Senator’s chief of staff should not lobby the

supervising Senator or the Senator’s other employees who are supervised by the chief of staff,

although the employee’s spouse would be free to lobby non-supervising Senators and other Senate

employees. In addition, the spouse’s associates would not be prohibited from lobbying any Members or staff so long as the Senate employee’s name is not used by the associates in such communications.

Federal law, at 5 U.S.C. § 3110, generally prohibits a federal official from hiring or promoting

a relative, including a spouse. A Member’s spouse may work in the Senate office, but only on

94 SENATE ETHICS MANUAL

245 See Chapter 9 of this Manual for further discussion of the law against nepotism.

246 Interpretative Ruling No. 441 (April 4, 1989).

247 5 U.S.C. §§ 7321–7326; see also 5 C.F.R. Part 733.

an unpaid basis (unless the employment predated the marriage). 245 The Committee does not construe this law to prohibit a Senate employee from being the supervisor of a relative as long as

the employee is not in any way involved in the decision to appoint, employ, promote or advance

the relative and as long as the employee recuses him- or herself from any appointment, employment, promotion, or advancement decisions concerning that relative. 246

Spouses who accept positions with the federal government should be aware of a political limitation. Under the ‘‘Hatch Act Reform Amendments of 1993,’’ most employees in the executive

branch of Government, while now free to take active part in political campaigns on their own

time, still may not run for office themselves or solicit, accept, or receive political contributions

for individual candidates’ campaign committees. 247 Thus, an individual employed by the federal

government may be prohibited from any involvement in fund-raising for the campaign of his or

her spouse. Because the penalty for violation ranges up to removal or suspension, the employed

spouse should consult with his or her supervising ethics office to determine the propriety of proposed campaign activities.

As explained in more detail in Chapter 4, official resources may only be used for official

purposes. Thus a Member may not use any congressional resources (including, e.g., staff time or

the office computer) on behalf of any private enterprise, including a spouse’s professional activities.

CHAPTER 3 95

OUTSIDE ACTIVITY/INCOME SUMMARY

Income Level Restriction

Members of the Senate May not contract with the federal government.

May not practice in the United States Claims Court or the Court of

Appeals for the Federal Circuit.

All Members, officers, and employeesMay not receive an honorarium for an appearance, speech, or article, or a series thereof, if directly related to Senate duties or payment is made because of Senate position.

May not use official influence to further personal financial interests.

May not represent others in a private capacity before the government.

May not accept compensation of any kind from a foreign government or act as an agent for a foreign principal.

May not engage in outside activities that are inconsistent with the

conscientious performance of official duties.

May not lobby former colleagues (Senate and House for Members)

for one year after leaving office.

All officers and employees May not hold outside jobs without prior approval of supervising officer or Senator.

Members, officers, and those employees earning at least $25,000

a year

May not affiliate for the purpose of providing professional services

for compensation.

May not allow their names to be used by organizations providing

professional services for compensation.

May not practice a profession for compensation on Senate time.

May not serve as officer or board member of any publicly held or

regulated entity, except:

1) a 501(c) organization, if unpaid;

2) an organization principally available to Senate individuals

and their families, if unpaid;

3) an organization on whose board the person served for at

least 2 years prior to coming to Senate, if time required is minimal and person is not on committee with legislative jurisdiction

over relevant regulatory body.

Committee staff must divest of substantial holdings affected by actions of employing committee, absent permission of Select Committee and supervising Senator.

96 SENATE ETHICS MANUAL

Income Level Restriction

Members and those employees

earning at least 120% of the

GS–15 rate of basic pay

($99,096 for CY 2002)

May not receive more than 15% of the Member’s base salary in

total outside earned income ($22,500 in CY 2002).

May not receive compensation for providing professional services

involving a fiduciary relationship, or for being employed by an

organization that provides such services.

May not allow their names to be used, regardless of compensation,

by organizations providing fiduciary services.

May not accept compensation for serving as a board member or officer of any organization.

May not accept compensation for teaching, without prior written approval from the Select Committee on Ethics.

Must file annual financial disclosure forms.

Absent waiver from supervising Senator, employee may not contact

executive or judicial branch on non-legislative matters affecting

own significant financial interests.

Members and those employees

paid at least 75% of a Member’s rate of basic pay

($112,500)

May not lobby former colleagues (Senate and House for Members)

for one year after leaving office (criminal penalties).

CHAPTER 3 97

248 In 2001, the cap was also $21,765. 249 5 U.S.C. app. § 501(a)(2).

OUTSIDE EARNED INCOME AND HONORARIA (RULE 36)

THE 15 PERCENT LIMIT

(Affecting Members and Senior Staff)

For Members and those officers and employees earning above 120% of the base salary for

the GS–15 level (i.e., $99,096 for CY 2002), federal law and Senate rule limit both the total

amount of outside earned income and the type of permissible outside employment. Senate Rule

36 caps the amount of permissible outside earned income in a calendar year at 15 percent of the

Executive Level II salary(that is, the Members’ base annual salary). In 2002, the cap was for both

Members and covered employees. 248 For persons who earn above GS–15 for only part of the year,

the cap is pro-rated. 249 Rule 37 (discussed below) restricts, and in some cases prohibits, compensation for certain types of activities, regardless of whether the individual’s income has reached

the cap. Rule 36 restricts compensation for personal services (termed ‘‘earned income’’), but not

moneys received from ownerships or other investments of equity (so-called ‘‘unearned’’ or ‘‘passive income’’). The distinction between earned and unearned income is thus important because

only earned income is subject to the 15-percent cap.

What Is Outside Earned Income?

The Committee defines the term ‘‘outside earned income’’ as follows.

For purposes of Senate Rule 36, the term ‘‘outside earned income’’ means any wages, salaries,

fees, and other amounts received or to be received as compensation for personal services actually

rendered, other than the salary of such individual as a Senator, officer, or employee of the Senate,

but does not include –

(1) any compensation received by the individual for personal services actually rendered

prior to the effective date of the earned income rule, or during a time when the individual

was not a Senator, officer or employee of the Senate;

(2) investment income (e.g., dividends, capital gains, interest, rents), provided that the

individual’s services do not materially contribute to the production of the income;

(3) income from enterprises in which the individual or his or her immediate family owns

a majority interest in which both personal services and capital are income-producing factors, so long as the personal services provided by such individual are managerial or supervisory in nature, necessary to protect the interests of the immediate family members,

and do not consume significant amounts of time; or

(4) copyright royalties or their functional equivalents from the use or sale of copyright,

patent, and similar forms of intellectual property rights, when received from established

users or purchasers of those rights pursuant to usual and customary contractual terms.

[Note that, by exclusion, lump sum payments which are neither royalties nor their functional equivalent ARE considered to be outside earned income subject to limitation under

Rule 36.

‘‘Investment income’’ refers to dividends or distributions based on the profitability of an entity, rental income, royalty income from mineral rights, capital gains from sales of investments, or

other income based on the activity or increase in value of the entity in which the individual has

invested capital. The Committee does not believe that personal management (e.g., through purchase, rent, or sale) of one’s own assets or the assets of one’s family transforms investment income into restricted personal service income. Where an individual serves as a manager to preserve

the financial interests of the family (for example, as a trustee of a family trust or executor of

a family will), reasonable compensation from one’s family for this service does not raise the potential for conflicts of interest at which this provision was directed and is not considered outside

earned income. Thus, the Committee has previously approved compensated service as executor of

98 SENATE ETHICS MANUAL

250 See Interpretative Ruling No. 414 (Nov. 18, 1986). 251 5 U.S.C. app. § 505(3).

a relative’s will. (See Senate Rule 34 or 5 U.S.C. app. Sec. 109(16) for definition of relative,

and discussion of Rule 37(5)(b),infra, this Chapter). However, if these types of management functions were performed for a person or entity outside the family and some form of compensation

were provided, that compensation would be considered outside earned income and would be subject to the cap.

Copyright royalties and similar fees (including advance payments of such royalties and fees)

for the use or sale of copyright, patent, and other forms of intellectual property rights are also

not considered earned income. Although the original copyrighted property was created by the individual’s personal efforts, this type of income is made possible by the actions of others (such as

the publisher, promoter, and bookstores), and calculated on the basis of income received by another person or entity (the publisher) as a result of the property’s appeal to the purchasing public.

In order to prevent abuses of this provision, the Committee has determined that such fees must

be in accordance with usual and customary contractual terms governing the transfer of copyright,

patent, or other intellectual property with established users or purchasers of those rights.

Also, the Committee has previously approved the receipt of income from a liscensing agreement, where the individual was liscensing the use of his or her autograph, where the value of

the autograph derived solely from the fame or notoriety of the individual due to that individual’s

accomplishments prior to coming to the Senate.

All other income which is derived from the personal services of the individual will be considered outside earned income even if it is labeled ‘‘investment’’ income by the payer or the payee.

An individual cannot circumvent the restriction by recharacterizing the nature of the income.

Example 48. Senator A, a former business executive, receives a pension under the terms

of his former employer’s pension plan. Although these payments arise out of the personal

services that A provided to the company during his years of employment there, the pension is not subject to the outside earned income cap because the services were provided

before A became a Senator. The pension must nonetheless be disclosed on A’s annual

financial disclosure statement.

Example 49. Senator B participates in a golf tournament (either open to the public, or

where contestants were selected on the basis of athletic talent) and wins $500 for achieving the lowest score. Since the award is based on B’s skill and performance, it is considered earned income, not subject to the gift rule’s limits, but subject to the outside earned

income cap and reportable as earned income on the annual financial disclosure statement. 250

HONORARIA BAN

(Affecting All Members, Officers, and Employees)

An individual may not receive any honorarium while that individual is a Member, officer

or employee.

5 U.S.C. app. 7 § 501(b); Senate Rule 36

Effective August 14, 1991, honoraria are banned for Members, officers, and employees of the

Senate. Federal law defines an honorarium as a payment of money or any thing of value for an

appearance, speech, or article (including a series of appearances, speeches, or articles if the subject

matter is directly related to the individual’s official duties or the payment is made because of the

individual’s status with the government) by a Member, officer or employee, excluding any actual

and necessary travel expenses . . .’’ 251 The ban on the acceptance of honoraria is absolute. It

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CHAPTER 3 99

252 In United States v. National Treasury Employees Union, 115 S. Ct. 1003 (1995), the U.S. Supreme Court held

that the ban was unconstitutional as applied to the executive branch. The legislative branch was not a party to the suit.

On February 26, 1996, the Office of Legal Counsel at the Department of Justice opined that in view of the Supreme

Court’s holding in this case, the Department could not enforce the statutory honoraria ban against any Federal employee

or official. Nonetheless, Senate Members, officers, and employees remain subject to a complete ban on honoraria pursuant to Senate Rule 36, which is unaffected by either the Court decision or the Office of Legal Counsel opinion.

ship to official duties. The statute does not authorize the Committee to grant waivers under any

circumstances. 252

The Senate honoraria ban was enacted as part of the Legislative Appropriations Act for Fiscal

Year 1992, and went into effect on August 14, 1991. Note that unlike all the other income restrictions, this provision bars the receipt of the payment after the effective date. As the Committee

construes this law, an individual may be paid for work contracted for and completed before he

or she became a Member, officer, or employee of the federal government, or before the statute’s

effective date, as long as the payment was or is received within a reasonable period of time after

the start of the individual’s Senate service or August 14, 1991, whichever is later. An offer to

republish, after the ban’s effective date, a current Member, officer, or employee’s prior writings

would be subject to the ban. On the other hand, absent an arrangement to defer payment until

after the author’s Senate service, an individual whose article happens to be republished after he

or she leaves the Senate may be paid for the republication, even though the original piece was

written while the author was a Member, officer, or employee. One may not evade the restriction

by purposely deferring payment or placing the payment in escrow.

Finally, no contribution in lieu of an honorarium should be made in connection with an event

in Senate space (pursuant to Rules Committee policy). Also, such payments should not be made

in connection with an official activity, regardless of location. Contributions in lieu of honoraria

are typically associated with officially related activities where expenses are reimbursed by an

entity other than the Senate. Thus, for example, where a Member makes a speech at an organization’s annual meeting in an official capacity (e.g., uses Senate money to travel to the event, as

opposed to accepting necessary expenses from the organization or using campaign funds) the organization should not make a contribution to charity in lieu of an honorarium.

Example 50. Staffer C works for the Health, Education, Labor, and Pensions Committee.

A teacher’s union offers her $2,000 to write an article for the union newsletter on legislative initiatives to improve the quality of public education. The staffer may write the article in her spare time but may not accept any payment.

Example 51. Staffer D, who works for the Foreign Relations Committee, writes an article

on rare butterflies for a nature magazine. D writes the article in his spare time, on his

home computer. Even though this has nothing to do with D’s official duties or status,

he uses no official resources, and the magazine has no interests that could be substantially affected by the performance of D’s official duties, Staffer D may not accept payment for the article.

Definitions

The Committee defines the terms ‘‘speech,’’ ‘‘appearance,’’ and ‘‘article’’ as follows:

A speech means an address, oration, talk, lecture, or other form of oral presentation, whether delivered in person, transmitted electronically, recorded, or broadcast over the media, but does not include teaching in an established educational program that conforms to teaching criteria established

by the Committee.

An appearance means attendance at a public or private conference, convention, meeting, social

event or like gathering, possibly but not necessarily involving incidental conversation, discussion,

or remarks.

An article means a writing, other than a book, which has been or is intended to be published.

100 SENATE ETHICS MANUAL

253Contrast Interpretative Ruling No. 56 (Sept. 7, 1977), where the Committee ruled that a Senator and staffer

could be compensated for writing a book concerning certain hearings before the Member’s committee, where they wrote

the book on their own time, based on public documents.

Example 52. Staffer E works in a Senator’s home state and is an avid weekend hiker.

A publishing company offers to pay E to evaluate the outline of a proposed book on

regional hiking trails. E’s review is for the internal use of the publisher, and is not intended for publication. E will prepare the review at home, on her own time. With the

approval of her supervising Senator, E may accept the compensation.

Example 53. The New York Review of Books offers to pay staffer F to review a new

book on the joys of hiking. Since the review is intended for publication, F may not receive the payment.

Exclusions

The Committee has determined that certain types of income are not honoraria. Payment for

the following is not banned:

• editing, as distinguished from writing original material for publication;

• writings to be published or republished as books or chapters or parts of books (royalties and advances on royalties);

• works of fiction (including poetry, lyrics, or scripts), where the payment is not offered because of the author’s Senate status;

• paid engagements to perform or to provide entertainment where the artistic, musical, or athletic talent of the individual is the reason for the employment, rather than the

person’s status as a Member or employee of the Senate;

• qualified individuals conducting worship services or religious ceremonials, but not

for delivering speeches or invocations at religious conventions.

While not honoraria, payments for most of these services (with the exception of book royalties)

are subject to the 15% outside earned income cap (discussed above), for those individuals earning

above the GS–15 salary level.

The Committee does not apply these exceptions mechanically. One cannot avoid the honoraria

ban merely by describing one’s services as editorial or artistic, or by calling a speech a script.

Thus, a staffer who writes and edits articles on subjects related to official duties cannot escape

the prohibition on the ground that some of the work is editorial. Similarly, just as a Senator may

not be paid for delivering a speech, a staffer may not be paid for writing the speech, even if it

is denominated a script. Whatever the parties call it, it is still a payment for a speech by a Member, and thus banned. All outside employment is subject, moreover, to Rule 37(2)’s prohibition

on non-Senate activities that are inconsistent or in conflict with the conscientious performance of

official duties.

Example 54. Senator G writes an article on foreign policy. A journal offers to pay G

for the right to publish it. G may authorize publication but may not receive the payment.

A publisher offers to pay G for the right to publish the article as a chapter in a book.

G may accept payment from the book publisher.

Example 55. Staffer H is Senator I’s health care specialist. An association of health care

providers is putting together a book on reforming America’s health care system and offers H a fee for writing a chapter in it. Although being paid for writing a chapter in

a book is generally exempt from the honoraria ban, under these circumstances, where

the work is not being undertaken for a disinterested publisher, the Committee believes

that the potential for a conflict of interest or the appearance thereof make it inadvisable

to undertake the project. 253

Example 56. Staffer J auditions for and gets a part in a local theater company production. Rehearsals and performances are to take place outside J’s regular working hours.

Assuming that the part was given to J based on his talent, rather than his Senate position,

and with the approval of his supervising Senator, J may perform and be compensated

for his performance.

CHAPTER 3 101

254 11 C.F.R. § 110.12(c)(3) (1991). 255 5 U.S.C. app. § 505(3), as amended by the Legislative Branch Appropriations Act, 1992, sec. 314(b), 105 Stat.

447, 469 (1991). 256 Senate Rule 37(3). 257 Section 170(c) defines charitable contributions that are tax deductible. It includes contributions to the United

States; the District of Columbia; any state, possession or political subdivision; religious, charitable, scientific, literary,

or educational organizations; and organizations to foster amateur sports competition or for the prevention of cruelty to

children or animals. These organizations may not be operated for profit, nor may they attempt to influence legislation

or participate in political campaigns for public office. 26 U.S.C. § 170(c). Since an organization’s tax status is determined by the Internal Revenue Service, a Member or employee who wishes to designate a particular organization to

receive payments in lieu of honoraria should verify with the organization that the IRS has granted it tax deductible

status under § 170(c). 258The amendments to Senate Gifts Rule 35, pursuant to S. Res. 158, and effective January 1, 1996, provide that

a registered lobbyist or foreign agent may make payments in lieu of honoraria to section 170(c) charities so long as

such payments are reported by the Member, officer or employee making the designation to the Secretary of the Senate

within 30 days after such designation or recommendation. 259The financial disclosure requirements related to charitable donations in lieu of honoraria are described in Chapter

5.

Stipends

A regulation of the Federal Election Commission interpreting prior law on honoraria excluded

stipends, that is payments ‘‘for services on a continuing basis.’’ 254 Congress addressed this issue,

effective August 14, 1991, by amending the definition of honorarium to include a payment for

‘‘a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government.’’ 255 Thus, stipends are now banned if one or more appearances, speeches, or articles in the

series are related to the individual’s official duties or status in Congress. Conversely, one may

accept a payment for a series that is totally unrelated to one’s official duties or status.

The Committee has determined that in order to be ‘‘related to’’ official duties, the series must

relate to the subject matter of the individual’s official duties, not simply to one’s general field

of technical expertise. As with any outside professional activity or employment, staffers must notify their supervisors in advance of accepting stipends. 256 Members and staffers who are unsure

as to whether the ban applies to a particular activity should seek the Committee’s guidance.

Example 57. A network news affiliate in Senator K’s state capitol invites her to deliver

a regular two-minute commentary on their Saturday evening news show on the topic,

‘‘This Week in Congress.’’ The affiliate offers the Senator a stipend of $5,000 a year

for her time. While the Senator may do the commentary, she may not accept the stipend

because the offer is related to her official duties and status.

Example 58. A philatelic magazine commissions Staffer L to write a series of articles

on stamp collecting. Since stamp collecting is unrelated to L’s official duties and status,

and L’s supervising Senator approves, L may accept payment for the series.

Example 59. Staffer M, an experienced computer operator and trainer, is the systems

manager in Senator N’s office. M is invited to write an ongoing column offering tips

on how to use computers to maximize office efficiency. The column would not discuss

computer use in the Senator’s office and would not be written on Senate time or with

Senate resources. With the approval of the Senator, M may be paid for the series.

Donations to Charity

The honoraria statute authorizes the sponsor of a speech, appearance, or article to make a payment in lieu of an honorarium to a charity qualified under § 170(c) of the Internal Revenue

Code. 257 The sponsor may make a donation of up to $2,000 per speech, appearance, or article. 258

If an article is republished, an additional $2,000 charitable donation may be made upon each republication. As long as the sponsor makes the check payable to the charity, the Member or employee may accept the check for the purposes of forwarding it to the charity, and keeping records

for the statutorily required public disclosure. 259 The Senate individual may not, however, accept

102 SENATE ETHICS MANUAL

260 26 U.S.C. 7701(k). 261 See 5 U.S.C. app. § 501(c). 262Accord HOUSE BIPARTISAN TASK FORCE REPORT, at 15, 135 CONG. REC. H9257.

a check made out to him or her personally and then endorse it over to a charity or write a personal

check in the same amount to the charity.

The Senator or staffer may suggest a particular charity to receive the donation, within the

following limits. The Senate individual may not receive any tax benefit from the donation. Accordingly, the individual should neither add the donation to income nor deduct it for income tax purposes. 260 The charity may not be one from which the individual or his or her immediate family

(parent, sibling, spouse, child, or dependent relative) derives any financial benefit (such as a salary). 261 For the purposes of this rule, the Committee construes ‘‘financial benefit’’ to mean a direct monetary benefit to the individual or a family member that is separate from any general benefit that the institution and all those who utilize its services derive. Thus, this provision would

not prohibit a payment to the general fund of a school at which the Member or employee’s child

is a student, or to the general fund of a health care facility at which a family member is a patient. 262 The amendments to Senate Gifts Rule 35, pursuant to S. Res. 158 and effective January

1, 1996, prohibit the donation of anything provided by a registered lobbyist or foreign agent to

an entity that is maintained or controlled by a Member, officer, or employee. Therefore, a lobbyist

may not donate a payment in lieu of honoraria to a charity that is controlled by a Member, officer

or employee.

As noted, no contribution in lieu of an honorarium should be made by an organization in

connection with the Member’s official activity. Contributions in lieu of honoraria are typically

associated with officially related activities where expenses are reimbursed by an entity other than

the Senate. Thus, for example, where a Member makes a speech at an organization’s annual meeting in an official capacity (e.g., uses Senate money to travel to the event, as opposed to accepting

necessary expenses from the organization or using campaign funds) the organization should not

make a contribution to charity in lieu of an honorarium.

Example 60. Senator O gives a speech to a trade association in New Orleans. The association pays O’s travel, food, and lodging expenses and sends a check for $2,000 to the

Boy Scouts, with a note saying: ‘‘In lieu of an honorarium, Senator O has asked us to

make this donation to the Boy Scouts in honor of his speech to our association.’’ O and

the association have complied with the honorarium law.

Example 61. Senator P gives a speech to a political club in Chicago. The following

week, she receives a check for $1,500, payable to her, with a note from the club saying:

‘‘Thank you for addressing our club. We did not know which charities you support, so

we are sending you this check, knowing that you will pass it along to some worthy organization.’’ Senator P may not keep the check, even if she immediately endorses it over

to a charity. She must return the check to the club. If she wishes, she may suggest that

the club donate the money to a specific charity of her choice or to any charity of the

club’s choice that is qualified under § 170(c) of the tax code.

Example 62. Senator Q gives a speech at an executives’ roundtable in Kansas City. In

honor of the event, the executives’ group presents Q with a check for $1,000, made out

to his favorite charity. Q may accept the check and send it on to the charity.

Example 63. Senator R establishes a charitable foundation, the R Fund, to assist disabled

residents of her state. The Senator heads the board of directors, but receives no salary

from the Fund. She may request that payments in lieu of honoraria for her speaking engagements be donated to the R Fund. However, if the sponsor of a speaking engagement

is a registered lobbyist or foreign agent, such payments in lieu of honoraria may not be

made by the lobbyist or foreign agent to the R fund, since the Senator controls the charity.

Example 64. Staffer S writes an article that is accepted for publication by a magazine.

The magazine normally would pay $500 for a comparable article and asks S if he would

CHAPTER 3 103

like the money to be donated to a charity. S’s favorite charity is a homeless shelter in

his home town where his sister works as a counselor. Since his sister receives a direct

financial benefit from the shelter (her salary), S may not designate the shelter to receive

the payment from the magazine. He may designate another charity.

Example 65. Staffer T, in an arrangement approved by his supervising Senator and the

Committee on Ethics, holds a paid, part-time teaching position at Grover’s Corners Community College. He also writes occasional op-ed pieces for the Grover’s Corners Gazette.

He may not ask the Gazette to make a donation in lieu of honorarium to the College’s

scholarship fund because he derives a financial benefit (his teacher’s salary) from the

same institution. He may designate another charity.

Example 66. Staffer U’s child attends a private school qualified under § 170(c) of the

Tax Code to receive tax-deductible contributions. U may designate the school to receive

a $2,000 payment in lieu of an honorarium for a speech U gives, as long as she does

not receive any tuition reduction or other benefit in consideration for arranging the donation.

(104)

Chapter 4: PROHIBITION ON UNOFFICIAL OFFICE ACCOUNTS

Introduction ......................................................................................................................... 105

Interpretative Ruling 443 ................................................................................................... 105

Discussion of Interpretative Ruling 444 ............................................................................ 106

Background ................................................................................................................... 106

Question answered by IR 444 ..................................................................................... 106

Rule 38 .......................................................................................................................... 106

Application of Rule 38 as implemented by IR 444 .................................................... 106

General Principles ........................................................................................................ 107

Franking Expenses ...................................................................................................... 107

Expenses for Senate Employees .................................................................................. 108

Consultant, Per Diem, and Special Government Employees .................................... 109

Expenses for Office Space ............................................................................................ 110

Use of Senate Space ..................................................................................................... 110

Equipment Expenses .................................................................................................... 110

General Rule .......................................................................................................... 110

Limited Exception ................................................................................................. 110

Any Other Official Expenses ....................................................................................... 112

Integrity of Accounts .................................................................................................... 112

Related Matters ............................................................................................................ 112

Cosponsored Constituent Service Events ............................................................ 112

Fact-finding Expenses .......................................................................................... 113

Government Entities ............................................................................................. 113

Interns, Fellows, and Volunteers ......................................................................... 113

Legal Expenses, as Amicus Curiae or as a Party ............................................... 115

Meeting Space and Refreshments ....................................................................... 116

Motor Vehicles ....................................................................................................... 116

Official Mail, Other Than Mass Mailings ........................................................... 116

Publications ........................................................................................................... 117

Radio and Television Studio ................................................................................. 117

Senate Employee ‘‘de minimis’’ Expenses ........................................................... 117

Caucuses ....................................................................................................................... 118

Furniture, Furnishings, and Artwork ........................................................................ 118

Payment and Allocation of Mixed Purpose Travel Expenses ................................... 119

Travel Expenses for Non-Senate Individuals ............................................................. 120

Participation in Third Party Events ........................................................................... 120

Office Retreats .............................................................................................................. 120

Political Events ............................................................................................................ 121

Issues for Senators-Elect .................................................................................................... 122

Issues for Members leaving Office ..................................................................................... 122

105

263 Interpretative Ruling No. 443 (June 22, 1995).

Chapter 4

PROHIBITION ON UNOFFICIAL OFFICE ACCOUNTS

Rule 38, Interpretative Ruling No. 444, and Interpretative Ruling 443

INTRODUCTION

Senate Rule 38 and 2 U.S.C., section 59e(d) prohibit ‘‘unofficial office accounts’’, that is,

private donations, in cash or in kind, in support of official Senate activities or expenses. Only

appropriated or a Member’s personal funds may be used to pay for official Senate business. Activities that are related to official duties or status, but are not themselves core Senate functions, may

be supported by excess campaign funds, Members’ personal funds, or reimbursement by third parties for which some service is performed (e.g., fact-finding travel, or expenses in connection with

giving a speech). Chapter Four discusses the application of Senate Rule 38 as most recently modified as a result of the 2002 Legislative Branch Appropriations Act, which modifications have been

incorporated in the Committee’s Interpretative Ruling 444, issued February 14, 2002, in which the

Committee provides guidelines on the payment of specific expenses. This Chapter also discusses

the Committee’s Interpretative Ruling 443 on the application of Rule 38 to the exchange of information between private parties and Senators and their staffs.

INTERPRETATIVE RULING 443

The issue has arisen as to how Rule 38 applies to the relationship between a Senate office

and a non-Senate organization or individual participating in the legislative process. In Interpretative

Ruling 443, the Committee addressed this issue as follows:

‘‘Senate Rule 38 prohibits unofficial office accounts, that is, private supplementation of expenses incurred in connection with the operation of a Member’s office and the activities of a committee as well. Thus, private contributions of money or private, in-kind contributions of goods or

services for official purposes are prohibited by Senate Rule 38.

On the other hand, no Senate rule prohibits a Senator from seeking advice on legislative issues

from individuals or organizations outside the Senate. Nor does any Senate rule prohibit any individual or organization outside of the Senate from voluntarily providing to a Senator or his or her

staff research, memoranda, legislative language, or draft report language for the Senator’s or staff’s

consideration. The nature of the legislative process contemplates and even encourages the free flow

and exchange of ideas and information between interested individuals or organizations and Senators and their staffs. Such exchanges are common and acceptable Senate practices. 263

As stated in Committee Interpretative Ruling 444 interpreting Rule 38, however, neither official nor officially related expenses, goods, or services used in the operation of a Senator’s office

may be provided or paid for by private parties. This rule provides a broad prohibition on the use

of private resources to do the work of a Senate office. It does not, however, prohibit a Senate

office from receiving from the public information, ideas, comments, or proposals about legislative

or other matters of public policy or interest being considered by the Senate. In contrast, the rule

would prohibit a Senate office from indirectly using the resources of private parties to do Senate

106 SENATE ETHICS MANUAL

work by exercising direction and control over the activities of an outside individual or organization

in an effort to supplement office resources.’’

DISCUSSION OF INTERPRETATIVE RULING 444

Background

The 2002 Legislative Branch Appropriation’s Act amended Section 311(d) of the 1991 Legislative Branch Appropriations Act. This changed Senate Rule 38, which incorporates the provisions

of Section 311(d). The Ethics Committee is now implementing those changes.

The 1991 Act prohibited the use of a Senator’s principal campaign committee funds to pay

any expense connected to official duties, while 2 U.S.C. 439a provided that excess campaign funds

could be used ‘‘...to defray any ordinary and necessary expenses incurred in connection with ...

duties as a holder of Federal office...’’ As amended by the 2002 Act, the use of campaign funds

continues to be prohibited for official expenses for franked mail, employee salaries, office space,

or equipment and any associated information technology services (excluding handheld communications devices), but not for other expenses. Thus, to the extent an expense is not within one of

the statute’s prohibited categories of expenses, the amended law permits a Senator to use any funds

authorized by Senate Rule 38 without the burden of cumbersome procedures previously required

to comply with the 1991 Act.

This change, implemented by Interpretative Ruling 444 (see Appendix A), follows the same

basic system which functioned well from 1977 until 1992. Senate work no longer needs to be

divided between ‘‘official’’ and ‘‘officially related,’’ and Interpretative Ruling 442 (issued 4/15/

92) is withdrawn.

Question answered by IR 444

How may Senate offices comply with Rule 38 which incorporates the provisions of Section

311(d) of the Legislative Appropriations Act of 1991 as amended by the Legislative Branch Appropriations Act of 2002?

Rule 38

Section 311(d) of the FY1991 Legislative Branch Appropriations Act (the 1991 Act), adopted

as Section 1(b) of Rule 38, as amended by the FY2002 Legislative Branch Appropriations Act

(the 2002 Act) provides that official expenses for franked mail, employee salaries, office space,

or equipment and any associated information technology services (excluding handheld communications devices) may not be paid from excess campaign funds or reimbursements provided by nonSenate sources.

2 U.S.C. 439a provides that excess campaign funds may be used ‘‘...to defray any ordinary

and necessary expenses incurred in connection with his or her duties as a holder of Federal office...’’

Section 1(a) of Rule 38 provides that expenses in connection with official duties may be paid

from one of four sources:

1) a Member’s personal funds,

2) appropriated funds,

3) excess campaign funds, or

4) reimbursements from private parties for which some service is performed (examples:

fact-finding travel, or expenses in connection with giving a speech).

Application of Rule 38 as implemented by IR 444

CHAPTER 4 107

Prior to 1992, Rule 38 allowed Members to pay for expenses which were related to their official duties from campaign funds provided by their principal campaign committees. It also allowed

Members to accept reimbursements from private parties when they participated in an event sponsored by that party. This system allowed Members to engage in many worthwhile activities without

such participation resulting in an expense to the taxpayers. At the same time, the system provided

for accountability by requiring that expenditures from campaign funds and reimbursements accepted be publicly disclosed. This system functioned well from 1977 until 1992. From 1992 until now,

Section 311(d) of the 1991 Act prohibited the use of campaign funds to pay official expenses,

and Interpretative Ruling 442 implemented this prohibition by dividing expenses related to official

duties into two distinct categories: official and officially related. Section 311(d) of the 1991 Act

was amended by the 2002 Act so that the categorization of expenses related to the performance

of official duties is no longer needed. This will permit the Senate to return to the expense payment

system in effect prior to 1992, so far as it is consistent with the amended statute.

Based upon the amended Section 311(d), Interpretative Ruling 442 (issued 4/15/92) was withdrawn upon issuance of Interpretative Ruling 444. Compliance with Senate Rule 38 is now governed by Interpretative Ruling 444 and the advice provided in this Chapter, and information in

Chapter Four of prior editions of this Manual should not be relied upon.

General Principles

As amended by the 2002 Act, Section 311(d) of the 1991 Act, incorporated into section 1(b)

of Senate Rule 38, prohibits the use of excess principal campaign committee and other non-Senate

funds to pay official expenses for franked mail, employee salaries, office space, or equipment and

any associated information technology services (excluding handheld communications devices).

The restrictions of Senate Rule 38(1)(a) and (b) are applicable to individual Senators, Party

Conferences, and caucuses. Thus, individual Senators, Party Conferences, and caucuses may not

accept financial or in-kind contributions from third parties, except as allowed in Rule 38.

Expenses of Standing, Select, and Special Senate Committees are paid only from appropriated

Senate funds. A Committee may, of course, permit its employees to participate in fact finding

sponsored by a third party subject to the rules governing such activities (see Fact- finding Expenses, later in this Chapter). Also, a very limited exception should be noted: some expenses (e.g.,

expenses for refreshments served at a committee event) are not the kind of expense which may

be paid with Senate funds and may, therefore, be paid with a Senator’s personal funds or principal

campaign committee funds. Due to the limited nature of this exception, a Member, officer, or employee who believes that the exception might apply to a particular committee expense should first

contact the Ethics Committee for confirmation.

The acceptance of in-kind goods and services is prohibited to the same extent that acceptance

of funds to be used to purchase goods or services is prohibited.

Wherever in this ruling funds of a principal campaign committee are permitted to be used

to purchase an item, then principal campaign committee funds must also be used to maintain, repair, operate, or use the item; and no appropriated Senate funds may be used in the purchase,

maintenance, repair, operation, or use of the item, nor may appropriated Senate funds be used to

repay or reimburse the campaign committee for the purchase, maintenance, repair, operation or

use of the item. Funds of a multi-candidate (e.g. leadership pac), party (e.g. DNC or RNC), or

any campaign committee other than a Senator’s principal campaign committee may not be used

to pay an expense related to official duties.

Franking Expenses

Of particular concern when Section 311(d) was adopted in 1990 was the fact that Senators

had been allowed to supplement their franking allowance with campaign funds, something House

Members were not allowed to do, so the 1991 Act prohibited the supplementation of franking alVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00121 Fmt 5222 Sfmt 5222 SMANUAL.004 ETHICS1 PsN: ETHICS1
108 SENATE ETHICS MANUAL

264 See Senate Rule 41.2; Interpretative Ruling No. 432 (April 20, 1988); Interpretative Ruling No. 238 (Mar. 26,

1979) (employee paid on per diem basis); Interpretative Ruling No. 61 (Sept. 13, 1977) (consultants and part-time employees). 265Rule 27.4. 266Rule 41.3. 267 See Chapter 3 regarding Conflicts of Interest in particular.

lowances from any source. Appropriations statutes and Section 311(d) as amended by the 2002

Act, continue to prohibit a Senator from supplementing his or her official Senate allowances for

franked mail with funds from any source other than appropriated Senate funds. Pursuant to Senate

Resolution and Regulations of the Committee on Rules and Administration, all mass mailings

under the frank by Senate offices must be printed, prepared, and mailed by the Senate Service

Department, and pursuant to appropriations statutes mass mailing funds are limited (e.g. the

FY2002 limit is up to $50,000 per year per Senator’s office). See also, Related Matters, Official

Mail, Other Than Mass Mailings, below.

Expenses for Senate Employees

Senate employees may be compensated only with appropriated Senate funds or the personal

funds of a Senator.

The compensation of employees with personal funds may raise significant complications. For

example, if an employee is compensated in whole or in part from the personal funds of a Senator,

the Senator is responsible for complying with all laws, regulations, etc. with respect to such compensation, such as income tax and FICA withholding, unemployment compensation insurance payments, and workman’s compensation. Additionally, such employees are subject to Senate Rule 41.4

and the payments they receive must be reported pursuant to Senate Rule 41.6. Further, any payment from the Senator’s personal funds which compensates an employee for performing Senate

duties is deemed to come from the Senate and must be counted in determining the applicability

to the employee of those provisions of the Senate Code of Official Conduct which apply to employees compensated at or above certain rates of pay (e.g. Financial Disclosure (Rule 34) and two

provisions of the Conflicts of Interest Rule, 37.5 and 37.6). Benefits provided by the Senate, such

as life insurance, health insurance, and retirement, will be based on only the compensation paid

by Senate funds. Moreover, employee compensation from the personal funds of a Senator is not

considered outside earned income, and is not counted for purposes of the limit on compensation

from appropriated funds. Campaign funds or other third party funds may not be used to compensate Senate employees for the performance of official Senate duties. However, a Senate employee may be paid by a campaign for campaign activity. Such campaign activity must be conducted on the employee’s own time, without the use of Senate facilities or equipment and is subject to the approval of the supervising Senator, and the limitations of Rule 41.1 (see Chapter 6

for a full discussion of political activity).

The Ethics Committee has ruled that all Senate employees and consultants regardless of the

form or nature of their employment by the Senate (including individuals paid on a per diem basis)

are subject to the Code of Conduct. 264

Senate committees may accept the services of non-Senate Federal Government employees as

detailees upon the written permission of the Committee on Rules and Administration. 265 Any such

employee must agree in writing to comply with the Senate Code of Official Conduct, as if he

or she were a Senate employee compensated by the Senate at his or her regular rate of government

pay. 266 In addition, government regulation (5 C.F.R. 2635.104) provides that a government employee on detail to the legislative or judicial branches in excess of 30 days is subject to the ethical

standards of the branch or entity to which the employee is detailed. 267 For the duration of the

detail, such an employee is not subject to the employing agency’s ethics regulations, but remains

subject both to the conflict of interest prohibitions of Title 18 of the United States Code and to

CHAPTER 4 109

268 On only one occasion has the Committee found that a group of individuals providing personal services to the

Senate was not fully subject to the Code of Conduct: individuals providing highly specialized technical advice without

pay to the Intelligence Committee on matters affecting national security, where the individuals were placed on the Senate

payroll solely to facilitate travel at Senate expense, and such advisory services were limited to a few days per year,

and where the Intelligence Committee insured no conflict of interest occurred. Also, pursuant to S.Res. 338, 84th Congress, Section 3(b)(1), outside counsel hired by the Ethics Committee are not subject to the Code of Conduct.

any applicable supplemental agency regulations of the employing agency that implement an agency

statute which restricts employee activities or financial holdings specifically on the basis of status

as an employee of that agency. Detailees to the Senate should consult their ethics officer at the

employing agency concerning agency ethics rules and regulations governing employees on detail.

(Note: For a discussion of government fellows, see section on private intern, fellow, and volunteer

programs in this chapter.)

Consultant, Per Diem, and Special Government Employees

Committees often seek to hire ‘‘consultants’’, ‘‘per diem’’ employees (paid ‘‘when actually

employed’’) or other employees to perform temporary or special services for the Senate. Some

such employees may also be ‘‘special government employees’’ within the meaning of 18 U.S.C.

202, an employment status which has relevance for purposes of applying certain conflict of interest

laws and for purposes of granting waivers from certain other statutory provisions. Personal offices

are precluded by provisions within the jurisdiction of the Senate Rules Committee from hiring

‘‘consultants’’ or ‘‘per diem’’ employees. The Ethics Committee has previously concluded in Interpretative Ruling 61 (September 14, 1977) that individuals who provide services to the Senate,

whether as a consultant or on some other part-time basis, are subject to the Senate Code of Official Conduct, as are individuals paid on a per diem basis. Therefore, consultants and other special

employees providing personal services (not including certain product contracts or contracts for certain technical services, as determined by the Committee on a case-by-case basis) to the Senate

are subject to the same restrictions and requirements as regular full-time Senate employees governing such things as gifts, conflict of interest and outside employment, including the post employment lobbying restrictions. 268

These restrictions and requirements pose particular problems for professionals who seek to

work for a Senate committee. For example, the affiliation restrictions of Senate Rule 37, paragraph

5 (discussed in Chapter 3), will restrict individuals who remain affiliated with their outside employer from providing services to the Senate.

Respecting per diem employees, on a handful of occasions the Committee has agreed to waivers of certain provisions of the Code of Conduct where the employee is critically needed by the

Senate. As a general proposition, the Committee is authorized to grant waivers from provisions

of the Code of Conduct only for ‘‘per diem’’ employees (Senate Rule 41.5). The exceptions to

this general proposition are that the Committee can grant waivers relating to receipt and disclosure

of gifts (on a gift by gift basis, see Chapter 2), and to the financial disclosure requirements for

temporary employees (whether per diem or not, see Chapter 5). The situations where the Committee has granted waivers for per diem employees have been limited to special investigative committees of limited duration, such as the special committee investigating Iran-Contra, impeachment

committees concerning federal judges, and the special committee investigating the Whitewater Development Company. In doing so, the Committee must account for certain statutory provisions of

the Ethics Reform Act of 1989 which (as of August 14, 1991) are applicable to the Senate and

which are also part of the Senate Code of Official Conduct, specifically: the Outside Earned Income Limitation; the Honoraria Ban; the prohibition on earning any money from fiduciary services; and the prohibition on earning any money for holding any fiduciary position. If an individual

works less than 130 days during the 365 day period following his or her appointment as a per

diem employee, he or she would qualify as a ‘‘special government employee’’ for purposes of

the Ethics Reform Act, and would not be subject to the statutory limitations set out in that Act.

110 SENATE ETHICS MANUAL

269 See Chapter 6 relating to Prohibition on Political Activities

However, since the provisions are also part of the Senate Code of Official Conduct and the Standing Rules of the Senate, it would be necessary for the Committee to grant a waiver of these applicable Senate Rules.

Any committee contemplating employing per diem employees and seeking waivers should

write the Ethics Committee seeking advance approval of such waivers.

Expenses for Office Space

Only appropriated Senate funds may be used to provide space for Senate offices.

Use of Senate Space

The Rules Committee has jurisdiction over assignment and use of all space in the Senate Office Building, the Senate Wing of the Capitol, and the Courtyard of the Russell Building. In the

Rules Committee’s ‘‘Policy for Use of Senate Rooms, The Russell Rotunda and Courtyard and

the Hart Atrium’’, the Rules Committee notes that Senate rooms are available only for Senaterelated business. Under the Rules Committee’s policy, no charge is permitted in connection with

the use of Senate space, nor may any charge be assessed for admittance or refreshments; no products may be sold on the premises or displayed for future sale; and Senate space may not be used

for any political campaign 269, fund-raising (including charitable contributions in lieu of honoraria),

commercial, promotional or profit-making purpose whatsoever. Please contact the Rules Committee

if you need further information about its policy. (The Rules Committee policy statement on use

of Senate space is reprinted in Appendix J).

Senators often reserve Senate space for the use of outside organizations and individuals having

no connection with the Senate. Simply because a Senator reserves space for use does not mean

that the Senator becomes the ‘‘sponsor’’ of the event which occurs in the reserved space for purposes of the Senate Code of Official Conduct (although a Senator may be deemed a sponsor for

purposes of the Rules Committee’s Policy).

Also of interest on the use of space is section 193d of Title 40 of the United States Code

pertaining to the Capitol Grounds. Section 193d states that ‘‘it is forbidden to offer or expose

any article for sale in said United States Capitol Grounds; to display any sign, placard, or other

form of advertisement therein; to solicit fares, alms, subscriptions, or contributions therein.’’ Thus,

care should be taken to avoid any commercial activity, or campaign or charitable solicitations on

the Capitol grounds.

Equipment Expenses

General Rule

With the limited exception of handheld communications devices and any associated information technology services discussed below, equipment used in the performance of official duties

may be purchased, leased, or otherwise acquired or provided only with appropriated Senate funds.

Therefore, no other source of funds may be used to provide equipment used in the performance

of official duties, and Members may not accept equipment or loans of equipment from any third

party, including any campaign.

Limited Exception

Prior to the 2002 Act’s amendment of Section 311(d), the 1991 Act prohibited a Senator from

using equipment purchased with campaign funds for any official activity. A Senator also has been

(and continues to be) prohibited by the appropriations statutes from using equipment purchased

with appropriated Senate funds for any purpose related to a campaign. Thus, a Senator seeking

the convenience of a cellphone has suffered the paradoxical inconvenience of sometimes having

to carry duplicate if not triplicate cellphones (Senate, campaign, and personal phones) to comply

with the rules.

CHAPTER 4 111

To address this problem, section 311(b) as amended by the 2002 Act, would permit handheld

communications devices and associated information technology services to be provided with funds

other than appropriated Senate funds. Likewise, Section 1(a)(1) and(3) of Senate Rule 38 permits

expenses related to the performance of official duties to be defrayed from funds of a Senator’s

principal campaign committee. Thus, in concert the law and rule now permit a Senator to use his

or her principal campaign committee funds to purchase handheld communications devices and associated information technology services, and use such devices for official and campaign purposes.

The purpose of the exception in the amended statute was to provide Senate Members and employees with the convenience of using a single cellular telephone or personal digital assistant for

multiple purposes (official and campaign), at no cost to the taxpayer, without unduly intruding

into the Senate’s role in providing equipment for Senate duties. To come within the exception,

the purchase, maintenance, repair, operation, and use of a multi-purpose handheld device and its

associated information technology service must be paid with funds of a Senator’s principal campaign committee, and no appropriated Senate funds may be used for these purposes either directly

or to repay or reimburse the campaign committee.

A handheld communications device includes devices such as cellular telephones and handheld

personal digital assistants, but does not include laptop computers. An associated information technology service means the communications network access service used by the device, whether such

access is provided by land-line, satellite, microwave, or other means.

Any handheld communications device and its associated information technology service provided with funds of a Senator’s principal campaign committee and used by a Senate Member, officer, or employee in connection with official duties will be deemed to have been dedicated exclusively to multi-purpose (i.e. official and campaign) use pursuant to the authority of Section 311(d)

and Senate Rule 38 and is subject to the following restrictions related to its use:

1) Under no circumstances may such a device be used in connection with any campaign

activity while the device is located in the Capitol or Senate space;

2) Under no circumstances may such a device be used to transfer data or information

to any computer facility outside the Senate in violation of Senate Rule 40 paragraph 5;

3) Under no circumstances may any Senate data or information which has been transferred to such a device be used for any purpose other than official Senate duties; and,

4) A Senate Member or employee must maintain personal control over such a device so

that the device is not used by any non-Senate individual for campaign purposes even if

operated outside the Capitol and Senate space.

Senate Members and employees are reminded to exercise special care to avoid disclosure of

confidential information related to the performance of Senate duties, as such devices will operate

outside the protective firewall of the Senate Computer Center so that confidentiality and security

are not insured.

A Senator’s personal funds may also be used to purchase, maintain, repair, and operate a

handheld communications device and its associated information technology service subject to the

limitations and conditions in this section.

As noted in the section on General Principles, expenses of Standing, Select, and Special Senate Committees are paid only from appropriated Senate funds. Thus, the limited exception herein

for handheld communications devices and associated information technology services provided

with funds of a Senator’s principal campaign committee or a Senator’s personal funds would not

be available to Committee staff. See, Related Matters, below, for a discussion of Senate Employee

‘‘de minimis’’ Expenses.

Any Other Official Expenses

112 SENATE ETHICS MANUAL

270 For example, a September 22, 2001 Committee ruling opined that ‘‘Officially related funds (excess principal

campaign committee funds) should not be used to purchase token-like or souvenir-like items for distribution to constituents visiting Senate offices or for distribution by a Senator when engaged in official or officially related activities. Examples of the types of items offered for distribution included plastic key tags, state-shaped metal key rings, baseball cards,

memo pad holders, and pewter or marlble paper weights with a state insignia, all available for personalization with

a Senator’s name and the words ‘‘United States Senate’’, along with the state seal of the Senator. Nothing in that ruling

prevents a Senator’s principal campaign committee from purchasing such items for distribution in connection with campaign related activities, not in Federal space and not related to official or officially related Senate activities. 271 See Chapter 2 for discussion of Travel expense reimbursement.

For expenses other than those enumerated in Section 311(d) as amended by the 2002 Act as

discussed above, and unless otherwise prohibited by law or by other applicable rules, rulings, or

regulations, 270 if an expense is deemed by a Senator to be related to official duties then the expense may be paid with either (or a mixture of) Senate funds, the Senator’s personal funds, or

excess funds of the Senator’s principal campaign committee and, in the case of ‘‘fact finding,’’

funds provided by a third party otherwise consistent with applicable requirements governing such

activities. See, Senate Rule 38, paragraph 1(a)(1), (2), & (3), and Fact-finding expenses, below. 271

Integrity of Accounts

There can be no supplementation of a Senator’s official personnel and office expense account.

This account, administered by the Financial Clerk of the Senate, may contain only those funds

appropriated to the account by the Senate.

At the discretion of a Senator, a separate operating account may be established by the Senator

at a financial institution for the receipt of funds from those sources enumerated in paragraph 1(a)

of Senate Rule 38 as authorized by this ruling, for use in or as reimbursement for paying an expense related to official duties. For expenses authorized by this ruling, such enumerated sources

may also directly pay the vendor for an expense related to official duties. A lump-sum transfer

of campaign funds to an operating account, and an itemization of any expenses paid therewith,

must be included on a Senator’s annual financial disclosure report. Use of campaign funds for

direct vendor payment, or for itemized reimbursement of the operating account for an expense payment, would be disclosed at the Federal Election Commission and would not need to be disclosed

a second time on a Senator’s annual financial disclosure report. Under current practice, the Senate

will not accept payment from a campaign committee for goods or services provided through the

Senate.

Where an expense related to official duties is permitted by this ruling to be paid with funds

of a Senator’s principal campaign committee, under no circumstances may appropriated Senate

funds be used to repay or reimburse the principal campaign committee for the expense.

Related Matters

Cosponsored Constituent Service Events

A Senator may participate in official constituent service events cosponsored with public or

private entities from outside the Senate, but must do so in compliance with other Senate Rules

(e.g. Rule 40, paragraph 5), applicable Committee rulings (e.g. Interpretative Ruling 428) and Regulations of the Committee on Rules and Administration. As the name implies, a constituent service

event must have as its purpose providing information or some other service to constituents, and

may not be simply a gathering of representatives of those sponsoring the event. Moreover, a cosponsor should have a common core of interest with the Senator in the subject matter of the event

by virtue of the cosponsor’s routine business activities, should be able to participate in and attend

the event, and may not be a mere financial contributor. A Senator may pay for his or her travel

and that of staff with official funds, however expenses of a Senator or employee connected with

such an event may not be paid by the co-sponsors of the event. A Senator may use the frank

in connection with the event.

Fact-finding Expenses

CHAPTER 4 113

272 See Chapter 2 for discussion of Travel expense reimbursement. 273 See Chapter 2 Regarding Gifts from Senate or Local Government. 274 See Interpretative Ruling No. 385 (July 31, 1984).

The 1991 Act was not intended to change the longstanding practice in both the House and

the Senate of paying certain expenses related to official duties from sources other than appropriated funds or the personal funds of a Member. For example, both the House and the Senate

historically allow third parties to reimburse for expenses (such as travel expenses) in connection

with services provided by a Member, officer or employee of the Congress to that third party. Neither the House nor the Senate interpreted Section 311(d) of the 1991 Act to prohibit such reimbursements and, to the contrary, such practice was expressly recognized and provided for in revisions to each chamber’s Gifts Rule adopted after the 1991 Act. Such third party payment of expenses associated with fact finding and similar activities by Senate Members, officers, or employees continues to be permitted by the 2002 Act amendment in accordance with Section 2 of the

Senate Gifts Rule (35). 272

Government Entities

Under Senate Rule 38, Senators may accept limited donations from domestic state and local

government entities to defray official expenses if such donations are in compliance with the domestic government’s laws and regulations. 273 This provision of Senate Rule 38 permits state or

local government entities to cooperate with a Senator in carrying out a specific event or activity,

but does not permit a government entity to make a continuing or sustaining contribution to a Senator’s office. Government entities may not under any circumstances provide funds or defray expenses for use of the mailing frank, employee salaries, office space, or equipment. A Federal government employee may participate as a fellow in a Senator’s personal office or as a detailee to

a Senate committee, provided the requirements of other applicable rules and laws are met (e.g.

for Committee detailees, specific approval of the Senate Committee on Rules and Administration

is required, see Senate Rule 41, paragraph 3; 18 U.S.C. 208; etc.).

Interns, Fellows, and Volunteers

The hiring of interns primarily for the benefit of, or primarily to provide assistance to, a Senate office is an official program and all compensation of the interns must be paid only from appropriated Senate funds or personal funds of the Senator.

Senators may continue to participate in intern, volunteer, and fellowship programs that are primarily of educational benefit to the interns, volunteers or fellows.

The supervising Senator is responsible for determining if such a program is primarily for the

educational benefit of the intern, volunteer, or fellow, rather than being primarily a means of performing the official or officially related activities of the Senate office. Interns, fellows, and volunteers may be provided with travel expenses, lodging, or compensation from programs sponsored

by private parties, provided that no conflict of interest arises in violation of Senate rules (See Interpretative Ruling 385) and provided that the Senator does not solicit for such programs and does

not receive reports on who contributes to any program established by or for him. University grants

or stipends provided to academic interns or fellows, such as professors on sabbatical, are not considered to be contributions to defray official expenses.

Where a participant is paid by or accepts expenses which are primarily funded by a single

company, individual or industry, the participant may not work on issues related to the interest of

the individual company or industry providing such funding. Conflicts of interest and the appearance of conflicts between the participant’s duties to the Senate and his or her responsibilities to

the private sponsor must be avoided. 274 For example, if a university professor on a fellowship

to the Senate has her funding for the fellowship paid in whole or in part by a foundation, a government grant, or other contractor, the interests of the sponsoring foundation, government agency,

114 SENATE ETHICS MANUAL

275 See Chapter 3discussion of Conflicts of Interest. 276 See Chapter 5 regarding Financial Disclosure.

or contractor will determine the scope of any possible recusal in the professor’s Senate fellowship

(and, in some instances, may preclude the professor from working for certain Senate committees

altogether). The hiring of interns primarily for the benefit of, or primarily to provide assistance

to, a Senate office is an official program and all compensation of the interns must be paid only

from appropriated Senate funds or personal funds of the Senator.

An individual may be a fellow in the Senate under a program administered by an umbrella

entity (e.g. a Foundation). For conflict of interest purposes, the Committee will look to each source

of funds used to pay such an individual or to pay the expenses of the individual’s fellowship.

If the fellow receives no pay or financial support from the umbrella entity then the interests of

the umbrella entity will not be determinative for purposes of assessing conflicts of interest. In all

cases, every source of funds associated with the individual’s provision of services to the Senate

must be identified and considered for purposes of applying Senate Rule 37’s Conflict of Interest

provisions. Each fellowship situation must be analyzed on a case-by-case basis. Not every entity

has identifiable legislative interests but most do. Thus, individuals who are prospective fellows

and any Senate office intending to accept the services of a fellow are advised to contact the Committee for advice prior to such an individual providing services to the Senate. 275

With respect to government employees who come to the Senate as fellows, because the salary

of the fellowship program participant is being paid with federal government funds, the Committee

views such an individual as being engaged in public service in the public interest regardless of

the sector of the federal government in which those services may be provided. Nevertheless, such

individuals may not be permitted to work on public matters which may give rise to a conflict

with the public interest. Thus, for example, a naval officer who is selected to serve as a LEGIS

fellow in the Senate may work on matters of general interest to the Department of Defense or

the Navy, but should not be permitted to work on issues which could particularly benefit her or

her government position. As with any employee, the initial decision of whether a government employee should work on a particular issue should be made by the supervising Senator and it would

be the supervising Senator’s continuing duty to monitor the government employee’s activities to

insure that no conflict arises in connection with the employee’s Senate duties. Absent an actual

conflict of interest, the Committee will not normally interfere with the judgment of the supervising

Senator.

Foreign nationals (who are not employees of a foreign government) who wish to perform

unpaid volunteer services for the Senate are subject to the same criteria as other fellows and volunteers. Thus, to the extent that the foreign volunteer’s employer, if any, has interests in any matters

before the Senate office or committee where the individual volunteers, the individual’s duties for

the Senate should not involve matters of interest to the employer. Also, given the individual’s status as a foreign national, the volunteer should refrain from performing Senate duties that would

be of benefit to the home country. In addition, if the individual performs full-time services for

more than 90 days for the Senate (whether compensated by an outside source or not), the individual is required, as set forth below, to agree in writing to comply with the Senate Code of Official Conduct and; if the individual is paid at a rate equal to or in excess of 120% of GS–15

($99,096 for CY 2002) per year by the outside entity and works for the Senate more than 60

days, the individual will be required to file a financial disclosure report. 276

The supervisor of any person working for a Senate office for more than four weeks and receiving compensation for those services from anyone other than the United States Government

must publicly report the amount or rate and source of compensation to the Office of Public

Records when the person begins service, when he or she ends the service, and on a quarterly basis

CHAPTER 4 115

277Rule 41.6. The Committee has forms available for purposes of compliance with Rule 41.6 disclosure.

278Rule 41.4; see also Interpretative Ruling No. 111 (April 5, 1978). The Committee has forms available for compliance with Rule 41.4 disclosure.

279 Under Rule 41.4, if the individual’s outside salary exceeds 120% of GS–15, the individual must file a financial

disclosure report.

280 See Appendix I.

in between. 277 Anyone working full-time in a Senate office for more than 90 days in a calendar

year (whether compensated by an outside source or not) must agree in writing (Rule 41.4 form)

to comply with the Senate Code of Official Conduct. 278

Such a person is treated under the Code as if he or she were receiving from the Senate compensation equal to whatever pay the individual is receiving from any source for the service to

the Senate. 279 The only exception to this policy is that university grants or stipends provided to

academic interns or fellows, such as professors on sabbatical, are not considered to be contributions to defray official expenses, provided the individual on sabbatical is free to undertake any

number of various activities and has picked the option of coming to the Senate. Interns or fellows

who must file a Rule 41.4 form and who receive outside compensation (which, as noted above,

is treated as a Senate salary) are subject to the Rule 37 provisions on conflict of interest, among

other provisions of the Code. Thus, such an individual earning at a rate of pay in excess of

$25,000 per year will be subject to Senate Rule 37.5(a) which prohibits affiliation with a firm

providing professional services, and if earning at a rate equal to or in excess of 120% of GS–

15 will be subject to Senate Rule 37.5(b)’s restrictions on receiving compensation for practicing

a profession which involves a fiduciary relationship, as wells as 37(6)(b)’s prohibition on serving

as a compensated officer or board member of any entity. Also, if the fellow or intern works for

the Senate for over 60 days and is paid a rate at or in excess of 120% of GS–15 by the outside

entity, he or she will be required to file a financial disclosure report as required by the Ethics

in Government Act. Whether paid or not, and whether for one day or one year, the general conflict

of interest provisions of Rule 37.1, 37.2 and 37.3 apply to any intern, fellow, or volunteer providing Senate services.

Where voluntary (gratuitous) service of any kind to the Senate is provided by any individual,

an appropriate disclaimer must be on file with the Financial Clerk of the Senate. Voluntary service

is service which is not compensated by anyone, and must be primarily for the educational benefit

of the volunteer.

The restrictions described above are intended to apply to all interns, fellows, volunteers, and

other individuals who are associated with and providing services for a Senate office, whether on

a repetitive, temporary, intermittent, or continuous basis. While no individual should be permitted

to provide services to the Senate where such service would create a conflict of interest, the limitations and requirements set out above are not intended to apply to an individual who merely participates in a Senate related activity on an occasional discrete basis (e.g., by providing sign language

or other interpretive services while attending a town meeting).

Legal Expenses, as Amicus Curiae or as a Party

The Committee’s Legal Expense Trust Fund Regulations allow a Member, without having to

establish a Trust Fund, to accept pro bono legal services for the purpose of submitting amicus

curiae briefs. A Member may not, however, join as a party in a law suit in his or her official

capacity unless he or she pays a pro rata share of the legal expenses and costs. A Member, officer,

or employee may accept either funds or pro bono legal services as a contribution to a Legal Expense Trust Fund established pursuant to the Committee’s Legal Expense Trust Fund Regulations 280 for the payment of legal expenses relating to or arising by virtue of service in or to the

Senate.

116 SENATE ETHICS MANUAL

Senate Resolution 321, agreed to on October 3, 1996, also permits a Senator, without establishing a Legal Expense Trust Fund, but with appropriate disclosure, to accept pro bono legal services with respect to a civil action challenging the validity of a Federal statute that expressly authorized a Senator to file the action. See, Senate Ethics Manual, Sept. 2000, App. H.

Additionally, Members, officers, or employees may pay legal expenses incurred in connection

with their official duties with funds of a Senator’s principal campaign committee, but only if such

payment is approved by the Ethics Committee. Establishing a legal expense trust fund does not

preclude a Member from using campaign funds as an additional expense source. A Member may

use either or both of these sources to pay his or her own expenses in connection with the legal

matter, as well as those of his or her staff.

A Member may not use a contested election fund under Federal Election Commission regulations (11 C.F.R. 100.7(b)(20)) to defray legal expenses incurred in connection with or arising by

virtue of Senate service. The Committee has determined that either the use of excess campaign

funds (subject to the contribution source and amount limitations) or the establishment of a legal

expense trust fund (which would permit solicitation by the Sentor up to a limit of $10,000 per

donor) provides sufficient alternative means to raise such funds without the creation by the Committee of a third avenue of funding.

Meeting Space and Refreshments

The use of privately owned space to meet with constituents is permitted, provided that the

normal practice of the owner is to make such space available to other persons for similar purposes

on a similar and non-partisan basis. Other than for refreshments of nominal value provided by

constituent groups in attendance, third parties may not pay for such refreshments at such meetings.

Motor Vehicles

A vehicle purchased, leased, or otherwise provided with a Senator’s principal campaign committee funds may be used for campaign and official use. The maintenance, repair, operation, and

use of the vehicle must be paid with funds of the Senator’s principal campaign committee, and

no appropriated Senate funds may be used to purchase, maintain, repair, operate, or use the vehicle, or to repay or reimburse the campaign committee for such purchase, maintenance, repair, operation, or use.

A vehicle provided by a principal campaign committee may be used for personal use only

if the Senator uses personal funds to pay the campaign for such use (see Rule 38.2), and such

personal payment should be made on a reasonable basis but must be made at least once each year

by determining the proportion of the vehicle’s usage attributable to personal use.

Official Mail, Other Than Mass Mailings

Under no circumstances may a Senator’s personal funds or principal campaign committee

funds, or third party funds be used to supplement the franked mail allowance of a Senator. Pursuant to Senate Resolution and Regulations of the Committee on Rules and Administration, all mass

mailings under the frank by Senate offices must be printed, prepared, and mailed by the Senate

Service Department. Postage and other mail costs associated with official non-franked mail may

be paid with Senate funds, a Senator’s personal funds, or funds of the Senator’s principal campaign committee.

For information relating to proper use of the mailing frank see Chapter 7 of the Senate Ethics

Manual, the Ethics Committee’s Regulations Governing The Use Of The Mailing Frank, and Regulations Governing Official Mail adopted by the Committee on Rules and Administration. See also,

Franking Expenses, above.

CHAPTER 4 117

Publications

Books, magazines, newspapers, and other publications, and subscriptions thereto, may be accepted from the author or the publisher at the discretion of the Senator. However, a Senator may

not accept a collection of materials, such as a specialized reporting service or other collections

for which updates or inserts are issued periodically.

Radio and Television Studio

Expenses related to programs produced in or transmitted from the Senate Radio and Television

Studios in the Capitol or the radio and television facilities operated by the Party Conferences may

be paid: 1) as an official expense with Senate funds, a Senator’s personal funds, or (through an

operating account established by a Senator) funds of a Senator’s principal campaign committee,

if produced or transmitted in relation to official duties; 2) by a licenced radio or television broadcaster, if produced or transmitted at the broadcaster’s request; 3) by a tax exempt organization

in the case of a public service announcement or other non-solicitation program, if produced or

transmitted at the request of such organization; or 4) by a corporate sponsor of a public interest

program or other non-commercial, non-promotional, and non-solicitation program, if produced or

transmitted at the request of such sponsor.

The Senate and House radio and television studios, including facilities of the Republican Conference and the Democratic Policy Committee, are subject to a pre-election moratorium on use

by a Senator or an individual who is either a candidate for nomination for election or a candidate

for election to the Senate. The Senate and House radio and television studios may not be used

less than 60 days immediately before the date of any primary or general election (whether regular,

special, or runoff) in which that Senator is a candidate for public office or that individual is a

candidate for Senator, unless the candidacy of the Senator in such election is uncontested [See

Rule 40.6]. This prohibition does not apply if the facilities are to be used at the request of, and

at the expense of, a licensed broadcast organization or an organization exempt from taxation under

section 501(c)(3) of the Internal Revenue Code of 1954. (See Chapter 7 for other moratoria).

Senate Employee ‘‘de minimis’’ Expenses

A Senate employee may not pay an official expense, make advance purchases related to his

or her performance of official duties, or pay for travel expenses authorized by the Senate travel

regulations, unless the employee is repaid in full with funds from a source enumerated in paragraph 1(a) of Senate Rule 38 as authorized by this ruling, except as noted in this paragraph. A

Senate officer, or employee may make voluntary de minimis expenditures related to the performance of official duties, such as: travel expenses in excess of maximum Senate per diem; travel

expenses beyond the time limits in paragraph 2 of Senate Rule 35 for approved travel sponsored

by a third party; handheld communications equipment and associated information technology services (subject to the restrictions on use, maintenance, repair, and operation discussed above under

Equipment Expenses); audio or video equipment for personal use in the office; or local travel expenses. Any item provided on a de minimis basis pursuant to this paragraph must be purchased,

maintained, repaired, operated, and used with the Senate officer’s or employee’s personal funds,

and no appropriated Senate funds may be used for these purposes, either directly or to repay or

reimburse the officer or employee. Under no circumstances may a Senate Member, officer, or employee as a term or condition of employment, directly or indirectly, ask, seek, demand, or require

that a Senate employee or prospective Senate employee volunteer or agree to volunteer to pay

an expense related to the performance of official duties.

Because a Senate employee is prohibited by criminal law from making a contribution (which

includes an advance payment) to his or her supervising Senator’s campaign, any employee contemplating an expenditure (typically expenses associated with volunteer work) related to campaign acVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00131 Fmt 5222 Sfmt 5222 SMANUAL.004 ETHICS1 PsN: ETHICS1
118 SENATE ETHICS MANUAL

281 See Chapter 6 for a discussion of other laws related to Campaign Activity.

tivities should first consult applicable laws and regulations of the Federal Election Commission

(including, but not limited to 2 U.S.C. 431; 11 C. F. R. 116.5 (b)). 281

Caucuses

The Committee has previously ruled that caucuses are subject to Rule 38’s limitations on the

sources of funds; that is, private contributions of money, goods, or services to caucuses are prohibited. Also, caucus mailings using the United States postal service may not be sent under the frank,

since caucuses are not among the groups authorized by law to use the frank.

No Senate rule prohibits one or more Senators from forming a forum or caucus, provided

that the caucus adheres to the limitations imposed by Senate Rule 38. Thus, based upon prior

Committee rulings under Rule 38, outside entities may not support a caucus by organizing caucus

events, reimbursing the expenses of speakers, or otherwise supporting caucus events by providing

goods, services, or money.

It is permissible for a caucus to co-sponsor an officially related constituent service event with

an outside organization, provided that the requirements of this Ruling are met (see Cosponsored

Constituent Service Events, infra). In such a case, the event would be convened for the purpose

of performing some constituent service (as opposed to a meeting held for purposes of educating

Members or staff on issues). The use of the frank, printing of notices in Senate facilities, and

officially paid travel would be prohibited, and the expense of the Senator or employee’s participation could not be paid by the co-sponsors of the event. Such expenses could be paid with the

Members’ personal funds, or campaign funds, or with registration fees from the participants (provided the outside co-sponsor handles such fees, see I.R. 428).

The Rules Committee does not recognize caucus groups as official organizations and, therefore, vouchers seeking official funds for the payment of caucus expenses will not be honored.

However, it also appears that the Rules Committee may allow Senators limited use of Senate facilities (for non-fundraising purposes) and staff in connection with caucus activities where no expenses need be vouchered. It is recommended that interested parties contact the Rules Committee

concerning its policies regarding the expenditure of official Senate funds in connection with caucus

activities.

Furniture, Furnishings, and Artwork

As of February 14, 2002 with the issuance of IR 444, the purchase of furniture or furnishings

for a Senate office may be accomplished by using official funds, campaign funds, or personal

funds of a Senator. Furniture or furnishings purchased with campaign funds before May 1, 1992

may remain in the Senator’s office, but may not be maintained or repaired at Senate expense.

Should a Member use principal campaign funds to purchase furniture or furnishings, such items

are the property of the campaign but are dedicated exclusively to official Senate business, may

not be maintained or repaired at Senate expense, and must be returned to the campaign or given

to charity when the items are no longer used in the Senate office. If a Member, with the approval

of the Committee on Rules and Administration and the Superintendent (as appropriate), uses campaign or personal funds to install wallpaper, carpeting, or other types of fixtures, the Member must

pay with campaign or personal funds for the removal and restoration occasioned by removal of

these items.

A Member may accept a loan of non-Senate issued furniture or art, for display in his or her

office, from home-state producers or distributors (a loan may NOT be accepted from a home

state resident who is merely a private collector). However, fixtures (e.g., wallpaper, carpeting) may

not be accepted on loan. Loans must be approved by the Ethics Committee; the approval letters

CHAPTER 4 119

282 See Interpretative Ruling 386.

are publicly available. 282 A home-state constituent who is neither a producer nor a distributor is

not a permissible source for loaned furniture or art.

An office seeking to accept a loan of furniture or art should write to the Committee asking

for such approval, and include in the letter the source of the loan item, the expected duration of

the loan, and the value of the item. The Committee’s response is retained in Committee files and

made available to the public as set forth in Interpretative Ruling 386.

A Member may insure home-state furniture or artwork on loan with officially related funds.

Also, the frank may be used to ship such loan items from the home-state to the Washington, D.C.

office. However, to avoid an improper loan of the frank, a Senate employee should personally

affix the franked label to the item prior to shipment.

Living plants for display in the office constitute a narrow exception to this policy. Since living

plants may not be purchased with official funds, they may be accepted on loan from the Botanical

Gardens, or a home state nursery, or purchased with campaign funds or the personal funds of a

Senator.

Example 1. Senator H may accept a loaned painting for display in her office from the

Home State Art Gallery (a seller of local artwork), or from Home State University (a

public entity), but not from Art Fancier, a private collector from H’s home town.

Payment and Allocation of Mixed Purpose Travel Expenses

Depending on the circumstances, travel expenses may be paid with official funds, campaign

funds, personal funds, or private reimbursements. Privately provided travel or reimbursement for

such travel, including lodging and other necessary expenses, for providing services to others (such

as giving a speech or conducting fact-finding) may only be accepted within the limits established

under Senate Rule 35 (the Gifts Rule).

The primary purpose of a trip must of course be official in nature to justify the use of official

funds for the airfare. If the purpose of the trip is to campaign for re-election, all expenses associated with the trip must be paid with campaign (or personal) funds. Expenses for mixed-purpose

trips, those involving stops for campaign as well as official activities may be pro-rated, to appropriately reflect the expenses associated with each segment of the trip. However, a trip that involves

both campaign and official business must comply not only with Senate rules, but with federal election laws. A Senator may thus find it helpful to consult the Federal Election Commission with

respect to dual purpose trips, since the Commission’s regulations relating to ‘‘contributions’’ of

travel expenses may in some cases dictate that a particular expense be reimbursed by a campaign.

As advised by the Committee in a February 14, 2002 Dear Colleague letter, on February 6,

2002, the Federal Election Commission (FEC) clarified the scope of its travel expense allocation

regulation concerning mixed purpose travel, i.e. a trip that involves stops for campaign as well

as official activities (see 67 FR 5445-6). It is the Committee’s understanding that as clarified the

FEC regulation will allow expenses for a trip that is mixed purpose to be pro-rated between expenses of (i) official travel paid with Senate funds and (ii) campaign travel paid with campaign

funds, to appropriately reflect the travel expenses associated with each purpose of the trip.

Previously, the FEC regulation (11 CFR 106.3) on mixed travel was perceived as requiring

a Legislative candidate whose trip involved both campaign-related and non-campaign-related stops

to pay for travel costs with campaign funds as calculated on an actual cost-per mile basis, starting

the point of origin of the trip, including each campaign-related stop and ending at the point of

origin of the trip. In interpreting its regulation, the FEC makes it clear that the allocation and

reporting requirements of 11CFR 106.3 are not applicable to the extent that a candidate pays for

120 SENATE ETHICS MANUAL

283The FEC reasoned that the Federal Election Campaign Act (2 USC 431 et seq.), which applies to a contribution

or expenditure made by a ‘‘person’’ (as defined under the Act) for the purpose of influencing a Federal election, expressly excludes the Federal Government in the statutory definition of the term ‘‘person’’. 284The Committee on Rules and Administration has sole jurisdiction over appropriated funds and, therefore, must

approve any expenditure of Senate funds.

travel expenses using funds authorized and appropriated by the Federal Government. 283 The FEC

notes that use of Federal funds is governed by appropriations statutes and that mixed purpose travel is subject to Congressional oversight, specifically Ethics Committee rulings.

Under the Committee’s rulings, expenses for such a mixed purpose trip may be pro-rated on

a reasonable basis (i.e. proration should be based on an evaluation of the number, nature, length,

and efforts dedicated to the various events) to accurately reflect the purposes of the trip. Alternatively, a Senator could use campaign or personal funds to pay for the entire cost of the trip.

For example: if a Senator flies to a state for two campaign and two official events, (i) absent

something unusual in the character of the events, Ethics Committee rulings 284 would permit the

transportation to be equally divided between appropriated funds and campaign funds (if evaluation

of the factors noted above so indicates, this equal division should be adjusted as necessary to accurately reflect the purposes of the travel), or (ii) the campaign or the Senator’s funds may be used

to pay for all of the transportation. As always, caution in the expenditure of official funds is advised. Finally, a campaign committee may NOT benefit from use of the government rate,

which applies only where appropriated (i.e. taxpayer) funds are used.

During the 60 days before an election in which a Senator is a candidate, neither the Member

nor his or her personal staff may accept official per diem for travel, even if the travel is for official

purposes only. However, travel expenses may be allowed if information is submitted to the Rules

Committee which establishes that the Senator’s candidacy was uncontested. Official funds, whether

the Senator’s candidacy is contested or uncontested, may still be used for airfare. During this moratorium period, because per diem is non-reimbursable from Senate funds for contested candidacies,

a Senator traveling on official business may use campaign funds to pay per diem expenses. The

moratorium on per diem expenses does not apply to a Member’s candidacy in a state or local

race. (See Chapter 7 for other moratoria).

Travel Expenses for Non-Senate Individuals

Official funds are not available to provide travel expenses for non-Senate individuals (except

witnesses in limited circumstances), even when they are traveling to attend official events. Such

travel expenses might be either officially related or personal, depending on the circumstances. A

Senator could pay for them with personal funds in either event, or with campaign funds, if the

travel were officially related. For example, a Member attending an official function in City A

could use campaign funds to pay the travel expenses of her spouse to accompany her.

Participation in Third Party Events

A Member or employee may participate in an event sponsored by a third party and have the

expense of such participation reimbursed by the third party in accordance with Rule 35. The literature promoting such an event may note the Senator’s or employee’s participation, but should

not list the Senator or employee as a co-sponsor of the event. Alternatively, a Member or employee may, as an official activity, participate in an event sponsored by a third party. That is,

the Member or employee may have the Senate pay travel and lodging expenses to enable him

or her to attend an event that is being put on by a private organization. This use of official funds

would not preclude the Member or staffer from accepting a waiver of conference fees or meals

provided at the event from the sponsor, consistent with the Senate Gifts Rule.

Office Retreats

An office retreat may be paid for with either or both official funds (with Rules Committee

approval) or principal campaign committee funds. Private parties may not pay expenses incurred

CHAPTER 4 121

285 See Chapter 7 on use of the Frank. 286 See Chapter 2, Group Gifts, Parties and Receptions.

in connection with an office retreat. Campaign workers may attend, at campaign expense, office

retreats if their purpose in attending is to engage in official activities, such as providing feedback

from constituents on legislative or representational matters.

Political Events

Official funds may not be used to support political events. Third party contributions to political events are governed by the Federal Election Commission. If a retreat is organized to discuss

campaign issues, Senate staffers may only attend if they are on their own time.

ISSUES FOR SENATORS-ELECT

Many questions about Senate administration and rules face Senators-elect. These issues are

usually addressed during a comprehensive orientation provided to Members and their spouses

shortly after the general election. A portion of the orientation is devoted to a discussion of ethics

laws, Senate ethics rules, and the functions of the Committee. While this section is not meant

to substitute for the ethics orientation briefing, the following are highlights of ethical concerns that

may be of immediate interest to incoming Senators.

* Gifts—The Committee has previously ruled (Interpretative Ruling 345) that a Senator-elect

is not subject to Senate Gifts Rule 35 prior to his or her swearing-in. However, Senators-elect

are subject to statutory ethics provisions (e.g., illegal gratuity, bribery).

* Franking—The Franking Statute permits a Senator-elect to use the frank to mail matter relating to his or her official duties and functions. A Senator-elect may begin using the frank when

official notification of the election results from the appropriate state official are received by the

Secretary of the Senate. (Consult with the Rules Committee concerning notification of election results). 285

* Swearing-in ceremony—The Committee has ruled that a Senator-elect may frank letters of

invitation to his or her official swearing-in ceremony.

* Responding to letters of congratulations—A Senator-elect’s response to a letter of congratulations on the Senator’s election is frankable mail matter.

* Swearing-in receptions—286

** A Member-sponsored reception may be treated as a campaign event, in which case the

Senator’s campaign committee must use campaign funds to pay for the event, Senate space may

not be used, and the frank may not be used in connection with the event. A Member may also

sponsor an officially related reception which may be paid for with excess campaign funds or personal funds. Senate space may be used for officially related receptions; however, the use of campaign stationery is prohibited.

** A reception sponsored by third parties in honor of the Member is analyzed under Senate Gifts Rule 35, which prohibits a Member, officer, or employee of the Senate from receiving

any gift of a value of $50 or more, or gifts from one source that aggregate $100 or more during

a calendar year, unless one of the Rule’s exceptions applies. Meals are counted as gifts. The Committee has held that a Member who attends a party or other function in his or her honor receives

a gift of the value of any food or refreshments consumed by the Member, plus the value of the

Member’s pro-rata share of any entertainment that is provided. However, the so-called ‘‘reception

exception’’, Senate Rule 35.1(c)(22), provides that the Gifts Rule does not apply to ‘‘food or refreshments offered other than as a part of a meal’’. Thus, if the sponsors of a swearing-in reception

offer food or refreshments that are not part of a meal (e.g., hors d’oeuvres), then pursuant to paragraph 1(c)(22) the value of such reception-type food consumed by the Member will not be a gift

to the Senator. An event also may meet the Gifts Rule exception (paragraph 1(c)(18)) for attendVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00135 Fmt 5222 Sfmt 5222 SMANUAL.004 ETHICS1 PsN: ETHICS1
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ance at a ‘‘widely attended’’ event. If an event is attended by at least 25 persons outside Congress,

attendance is open to individuals from throughout a given industry or profession, or to a range

of persons interested in an issue, and if the Member determines that attendance at the event is

appropriately connected with his or her official duties or position, then the Member may accept

‘‘free attendance’’ at the event, including a meal or refreshments and the provision of local transportation.

* Nepotism statute—The nepotism statute, 5 U.S.C. 3110, prohibits federal officials, including

Members, officers and employees of the Senate, from appointing, employing, promoting, or advancing or recommending for appointment, employment, promotion, or advancement any ‘‘relative’’ of the official to any agency or department over which the official exercises authority or

control. (See discussion of statute in Chapter 9).

* ‘‘Winding Up’’ prior business—Conflict of interest rules limit the performance of professional services by Members. For Committee discussion of issues raised by new Members, see I.R.

344 and I.R. 358.

* House vs. Senate Rules—The ethics rules in the House and Senate differ in several important respects. For example, Senate Rule 41.1 states that officers or employees of the Senate may

not solicit, receive, have custody of or distribute federal campaign contributions unless they are

one of three political fund designees (and then only for certain campaign committees). The House

has no such restriction. Therefore, new Members coming from the House should familiarize themselves with Senate rules.

* Informed staff—Experience indicates that a well-informed office avoids ethical problems.

It may be useful to designate certain staffers to know the rules well. Ethics Committee staff is

available for office briefings or individual questions, or to provide written materials.

ISSUES FOR MEMBERS LEAVING OFFICE

The Senate provides detailed sessions for offices on the issues surrounding the closing of a

Senate office. The following is a brief list of ethical considerations for Members leaving the Senate.

* Financial disclosure—Senators, and all other reporting individuals, who leave the Senate

must file termination reports. No report is required with respect to Senators who have died while

in office.

* Post-employment restrictions and negotiating for future employment—See discussion in

Chapter 3 of post-employment restrictions (regulated by criminal statute, 18 U.S.C. 207) and for

conflict of interest concerns on negotiating for future employment.

* Use of Frank—The Franking Statute provides that a Senator is authorized to use the frank

until the expiration of a 90-day period immediately following the date on which he or she leaves

office in order to close the official business of the Senate office.

* Lame Duck travel—Senate Rule 39.1 prohibits United States government-funded foreign

travel by any Senator whose term will expire at the end of a Congress after, (1) the date of the

general election in which his or her successor is elected, or (2) if the Member is not a candidate

in the general election, the date of that election or the adjournment sine die of the second regular

session of that Congress, whichever is earlier. These restrictions also apply to employees of terminating Senators, whether personal or committee, and to officers and committee employees whose

employment will terminate at the end of a Congress.

(123)

Chapter 5: FINANCIAL DISCLOSURE

Introduction ......................................................................................................................... 124

Financial Disclosure ............................................................................................................ 124

Background ................................................................................................................... 124

Filing Procedures ......................................................................................................... 125

Who Must File ....................................................................................................... 125

Filing Deadlines, Committee Review, and Amendments ................................... 126

Failure to File or Filing False Disclosure Statements ....................................... 127

Spouse and Dependent Information .................................................................................. 127

The Disclosure Report ......................................................................................................... 128

Part I: Payments in Lieu of Honoraria .................................................................... 128

Part II: Earned and Non-Investment Income .......................................................... 128

Part III: Assets and Unearned Income Sources ...................................................... 129

Part IV: Transactions ................................................................................................ 133

Part V: Gifts ............................................................................................................... 134

Part VI: Travel Reimbursements ............................................................................. 135

Part VII: Liabilities ................................................................................................... 135

Part VIII: Positions Held Outside U.S. Government .............................................. 136

Part IX: Agreements or Arrangements .................................................................... 136

Part X: Compensation of $5,000 Paid by One Source ............................................. 136

124

287CRS Report for Congress—Legislative Ethics in Democratic Countries: Comparative Analysis of Financial

Standards, April 14, 1994. 288 Senate Code of Official Conduct, Report of the Special Committee on Official Conduct, United States Senate,

to accompany S. Res. 110, S. Rep. No. 95–49, 95th Cong., 1st Sess. 3 (1977) (known and hereinafter referred to as

the NELSON REPORT, after the Chairman of the Special Committee, Senator Gaylord Nelson). 289 JAMES C. KIRBY, JR. (exec. director), ASS’N OF THE BAR OF THE CITY OF NEW YORK SPECIAL COMM. ON

CONGRESSIONAL ETHICS, CONGRESS AND THE PUBLIC TRUST 47 (1970).

Chapter 5

FINANCIAL DISCLOSURE

Rule 34

INTRODUCTION

Public disclosure of a public official’s personal financial interests is often considered the key

component to an effective code of conduct for legislative ethics. In a recent Congressional Research Service survey of ethical regulations governing the financial interests of legislators in twenty-four countries, the United States was found to have the most clearly restrictive scheme of laws,

regulations, and rules respecting the financial interests and conduct of its members, with its disclosure requirements more detailed and extensive than any of the surveyed countries. 287 Pursuant to

statute and rule, Members, officers, and certain employees of Congress are required to file comprehensive annual public financial disclosure reports. This chapter focuses on the disclosure filing

process and report requirements for Members, officers, and employees of the Senate.

FINANCIAL DISCLOSURE

Background

The drafters of the original Senate Code of Official Conduct, in the 95th Congress, considered

‘‘full and complete public financial disclosure’’ to be ‘‘the heart of the code of conduct.’’ 288 Financial interests and investments of Members and employees, as well as those of candidates for

the Senate, may present conflicts of interest with official duties. Members and employees (with

the exception of certain committee staffers) need not, however, divest themselves of assets upon

assuming their positions, nor must Members disqualify themselves from voting on issues that generally affect their personal financial interests. Instead, public financial disclosure provides the

mechanism for monitoring and deterring conflicts.

Senators enter public service owning assets and having private investment interests like other

citizens. Members should not ‘‘be expected to fully strip themselves of worldly goods’’ 289— even

a selective divestiture of potentially conflicting assets is not required. Unlike many officials in the

executive branch, who are concerned with administration and regulation in a narrow area, a Senator exercises judgment concerning legislation across the entire spectrum of business and economic

endeavors. The wisdom of complete (unlike selective) divestiture may also be questioned as likely

to insulate a legislator from the personal and economic interests that his or her constituency, or

society in general, has in governmental decisions and policy.

Thus, public disclosure of assets, financial interests, and investments has been required and

is generally regarded as the preferred method of monitoring possible conflicts of interest of Members of the Senate and certain Senate staff. Public disclosure is intended to provide the information

CHAPTER 5 125

290 NELSON REPORT, at 3–4. 291 Pub. L. No. 95–521, 92 Stat. 1824 (Oct. 26, 1978). Legislative branch disclosure requirements were then codified at 2 U.S.C. § 701 et seq. 292 Pub. L. No. 101–194, 103 Stat. 1716 (Nov. 30, 1989), as amended by Pub. L. No. 101–280, 104 Stat. 149

(May 4, 1990) and Pub. L. No. 102–90, 105 Stat. 447 (Aug. 14, 1991) (the Ethics in Government Act and the foregoing

are collectively referred to as the ‘‘Act’’); and see Senate Rule 34, as amended (specifically, S. Res. 158, 104th Congress, First Session) for further revised and additional disclosure requirements of Senate Members, officers and employees. 293 Financial Disclosure Requirements of Federal Personnel have been codified since 1991 at 5 U.S.C. app. §§ 101–

111. 294 A Senate employee is anyone whose salary is disbursed by the Secretary of the Senate, including part-time staff

and consultants, as well as other individuals providing full time services to the Senate for more than 90 days. See Interpretative Ruling No. 61 (Sept. 13, 1977) and Ethics Committee Supplemental Rules of Procedure, Rule 15, para. 9. 295 Pub. L. No. 101–509, 104 Stat. 1389 (Nov. 5, 1990) eliminated the GS–16 classification and replaced it with

‘‘above GS–15’’ meaning 120 percent of the GS–15 base level salary. 296 For financial disclosure purposes, the rate of pay of an employee who receives a bonus is determined by adding

the bonus to the base rate of pay. See Interpretative Ruling No. 435 (June 13, 1988). The Committee has ruled that

if an employee receives a bonus, the employee must file disclosure only if the bonus raised the employee’s gross salary

over the filing threshold of 120% of GS–15 base salary.

necessary to allow Members’ constituencies to judge official conduct in light of possible financial

conflicts with private holdings. In drafting the financial disclosure provisions of the Senate Code

of Official Conduct, the Special Committee ‘‘sought to strike a balance . . . to mandate disclosure

and prohibit practices in a way that would restore the public confidence and serve the public’s

legitimate interests without condoning wholesale, unwarranted invasions of privacy.’’ 290

The Senate has required some financial disclosure by rule since 1968, and public reporting

by statute since 1978. The Ethics in Government Act of 1978 mandated annual financial disclosure

by all senior Federal personnel, including all Members and some employees of the Senate. 291 The

Ethics Reform Act of 1989 292 revised and condensed what had been different requirements for

each branch into one uniform title covering the entire Federal Government. 293 Filers now must

indicate outside compensation, holdings, transactions, liabilities, positions held and gifts received

on their Financial Disclosure Reports (the ‘‘Reports’’). In all instances and within their discretion,

filers may disclose additional information or provide explanation.

The Committee develops forms and instructions for financial disclosure, gives advice regarding compliance and reviews the completed Reports of Members, officers, employees, candidates,

and certain other legislative branch personnel for compliance with applicable laws and Senate

Rules. The Secretary of the Senate is responsible for making the forms available for public inspection. The discussion that follows focuses primarily on those requirements that apply to Members,

officers, and employees of the Senate. Additional details for all filers within the Committee’s jurisdiction are included in the instructions for completing the Report, appended to the Report forms

issued by and available from the Committee.

Filing Procedures

A. Who Must File and When

Senators and Senate employees 294 earning at a rate of at least 120 percent of the Federal

GS–15 base level salary (hereafter sometimes referred to as being paid at a rate ‘‘above GS–

15’’), 295 must file Financial Disclosure Statements by May 15 of each year. An individual who

works less than full time must compute his or her ‘‘rate of pay’’ by pro-rating annual salary. For

example, if you work two and one half days per week (i.e. 1/2 time) and are paid $50,000 per

year, your ‘‘rate of pay’’ for purposes of financial disclosure and other provisions of the Senate

Code of Official Conduct is $100,000 per year. This salary threshold, for both 1993 and 1994,

was $79,930. In 1995, it was $81,529; for 1996, it was $83,160; for 1997, it was $85,073; for

1998, it was $87,030; for 1999, it was $89,728; for 2000, it was $93,137; for 2001, it was

$95,652; and for 2002, $99,096. 296 If a Member has no employee on his or her personal staff

126 SENATE ETHICS MANUAL

297 See Interpretative Ruling No. 292 (Nov. 27, 1979). 298 5 U.S.C. app. § 101(a). See Interpretative Rulings No. 321 (May 13, 1980); No. 224 (Jan. 30, 1979). 299 See 2 U.S.C. § 431(2). This does not include money received or spent solely to ‘‘test the waters’’ (i.e., explore

the plausibility of the candidacy) if the individual never actually becomes a candidate, does not take any steps necessary

under state law to become nominated or elected, and does not receive or spend any campaign funds for purposes other

than exploring the viability of the candidacy. See Interpretative Ruling No. 266 (June 13, 1979). 300 See Interpretative Ruling No. 413 (Sept. 22, 1986). 301 5 U.S.C. app § 101(e). 302 Id. at § 101(g). 303 Id. at § 104(d). 304 Id. at § 106.

who receives equal to or in excess of 120 percent of the GS–15 salary, the Member must designate

at least one ‘‘principal assistant’’ to file a Report. Political fund designees (that is, up to three

Senate staffers per Member who are authorized under Rule 41.1 to handle campaign funds) also

must file Reports for each calendar year in which they are so designated. 297 In addition, anyone

who takes a Senate position at a starting salary that exceeds the filing threshold must file a New

Employee report within 30 days of commencing employment if he or she expects to be on the

payroll for more than 60 days in the calendar year, unless the employee left another filing position

within 30 days of beginning Senate employment. 298

Senate candidates must also file Reports. An individual who qualifies as a ‘‘candidate’’ for

the Senate must file within 30 days of becoming a ‘‘candidate,’’ or on or before May 15, whichever is later, but in any event at least 30 days before the election. ‘‘Election’’ is defined as any

type of primary, run-off, nominating convention, caucus, or general election. One becomes a candidate, according to the Federal Election Campaign Act, by either (i) raising or spending more

than $5,000 for a campaign, or (ii) authorizing another to raise or spend $5,000 upon their behalf. 299 An individual who does not raise or spend (and does not authorize another to raise or

spend) $5,000 has no financial disclosure obligations. All individuals who do meet this definition

must file Reports each year that they continue to be candidates. Individuals who do not qualify

as candidates until within 30 days of the election must file as soon as they do qualify. A candidate

who takes the necessary steps under state law to withdraw either before the Report is due, or before the date of any extension granted by the Committee, need not file a Report. 300

Leaving the Senate: Within 30 days of leaving his or her government position, a reporting

individual generally must file a termination report. 301 The termination report covers all financial

activity through the person’s last day on the Senate payroll. An individual who leaves one position

requiring a Financial Disclosure Statement for another such position need not file a termination

report.

Example 1. Senator Q resigns from Congress to take a position as a Cabinet Secretary.

Q need not file a termination report.

B. Filing Deadlines, Committee Review, and Amendments

All reports are filed with the Office of Public Records of the Secretary of the Senate. A report

must be physically filed or postmarked by the due date, unless an extension has been granted by

the Committee in response to a written request by the filer. Total extensions for any report may

not exceed 90 days. 302 The Committee may not grant an extension that was requested by the filer

after expiration of the 30 day ‘‘grace’’ period following the Report’s due date. An individual who

files a report more than 30 days after it is due must pay a penalty of $200 when he or she files

the report, unless the Committee waives the penalty. 303 Requests for waivers must be made to

the Committee in writing and are granted by the Committee in extraordinary circumstances.

Within 60 days of receipt, the Committee reviews the Reports to determine whether they have

been filed in a timely manner and whether their contents have been disclosed accurately and in

compliance with the law 304 and Senate Rule. If the review indicates a possible problem, or that

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305 Id. at § 104(a). 306 18 U.S.C. 1001, and 18 U.S.C. 3571. 307 5 U.S.C. app. § 106(b)(7). 308 5 U.S.C. app. § 102(e)(1). See Interpretative Ruling No. 397 (May 24, 1985); Interpretative Ruling No. 336

(Sept. 5, 1980). 309 5 U.S.C. app. § 102(e)(1)(E).

the Report appears to be in the need of additional information or clarification, the filer is notified

and should respond and amend his or her Report, if necessary, within thirty days of his or her

notification.

A filer may also amend a Report on his or her own initiative. To amend a Report, a filer

need not submit an entirely new form. Instead, an amendment may simply revise a given page

or part of the Report, or may be in the form of a letter. All amendments should be addressed

to, and filed with, the Secretary of the Senate, Office of Public Records, Room 232, Hart Senate

Office Building, Washington, D.C. 20510. Both the original filing and the amendment are made

public and are available for public viewing at the Office of Public Records—NOT at the Committee.

Within thirty days of filing, Reports will be disclosed to any requesting party by the Senate

Office of Public Records. All Reports will remain available on microfilm for public inspection

for a period of six years after receipt. Any person requesting actual copies of Reports is required

to pay a reasonable fee ($0.20 per page in 2000) to cover production and mailing. Filers may

also inspect applications by the public for review of their own Report at the Office of Public

Records.

C. Failure to File or Filing False Disclosure Statements

The financial disclosure provisions of the Ethics in Government Act have been incorporated

as Senate Rule 34, over which the Committee has jurisdiction. In addition to any Committee action, the Ethics in Government Act authorizes the Attorney General of the United States to seek

a civil penalty of up to $11,000 against an individual who knowingly and willfully falsifies or

fails to file or to report any required information. 305 Moreover, anyone who knowingly and willfully falsifies or conceals any material fact in a statement to the Government may be fined up

to $11,000 and is subject to criminal prosecution. 306

The Committee is authorized to render advisory opinions interpreting the financial disclosure

provisions of the Ethics in Government Act for any person under its jurisdiction. An individual

who acts in good faith in accordance with a written advisory opinion shall not be subject to any

sanction under the Act. 307

SPOUSE AND DEPENDENT INFORMATION

In general, reporting individuals must also disclose the financial interests of their spouses and

dependent children. 308 Only where the financial interest of a spouse or dependent child meets all

three standards listed below, may a filer omit disclosure:

(1) The item is the sole interest or responsibility of the spouse or dependent child, and the

reporting individual has no knowledge of the item;

(2) The item was not in any way, past or present, derived from the income, assets, or activities

of the reporting individual; and

(3) The reporting individual neither derives, nor expects to derive, any financial or economic

benefit from the item. 309

This three step test is met only in the rarest of circumstances. For instance, if a filer has a dependent child who was adopted and a natural parent without notice to the filer sets up an educational

trust for the dependent child, the above three step test, for the trust fund, is seemingly met. HowVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00141 Fmt 5222 Sfmt 5222 SMANUAL.005 ETHICS1 PsN: ETHICS1
128 SENATE ETHICS MANUAL

310 Id. § 102(e)(2). 311 See Chapter 3 of this Manual for a discussion of the honoraria ban. 312 See Chapters 2 and 3 for additional limitations and disclosure requirements required by Rule 35 for Members,

officers, or employees who designate or recommend to a lobbyist a contribution in lieu of honoraria. 313 5 U.S.C. app. § 102(a)(1)(A). 314 See Interpretative Ruling No. 414 (Nov. 18, 1986) (a trophy earned at an athletic contest is not a gift subject

to Rule 35’s limits, but should be disclosed as earned income). A monetary or monetary equivalent ‘‘award’’ or ‘‘prize’’

won at such an athletic competition may be accepted only if the competition is open to the public. 315 See, e.g., Interpretative Ruling No. 359 (Jan. 3, 1983); Interpretative Ruling No. 344 (Feb. 16, 1981); Interpretative Ruling No. 319 (May 9, 1980); Interpretative Ruling No. 56 (Sept. 7, 1977). Rulings No. 359 and 344 reflect the

fact that the disclosure threshold for earned income was formerly $100.

ever, since the filer will no longer have to contribute as much to the child’s education, the filer

does derive some financial benefit. Hence, it appears this trust fund is reportable.

An individual is not required to disclose financial information about a spouse from whom he

or she has separated with the intention of terminating the marriage or providing for a permanent

separation. 310

Example 2. Senator A sets up an account in her 10-year-old son’s name, into which she

deposits funds that she has earmarked to pay for his college education. Senator A must

disclose the account.

Example 3. Senator B’s wife has a stock portfolio, entirely in her own name. She uses

the income from these investments to finance family vacations and other non-routine

family expenses. Senator B must disclose the stock portfolio.

Example 4. Senator C’s husband inherits some commercial real estate in which he is

the sole owner. Senator C must disclose the property.

Example 5. Senator D lives separate and apart from her husband and intends to initiate

divorce proceedings. The Senator and the estranged husband inherit money from the

same source. Senator D need only disclose HER inheritance, not that of her estranged

husband.

THE DISCLOSURE REPORT FORM

Part I: Payments in Lieu of Honoraria

While Members, officers, and employees may not themselves receive honoraria, the sponsor

of a speech, article or appearance may make a payment in lieu of honoraria to a charity. 311 Reporting individuals (with the exception of candidates) must publicly disclose on Part I the date,

source, and amount of any payment in lieu of honoraria that is directed to charity, as well as

the nature of the activity that gave rise to the payment (i.e., speech, article, or appearance). 312

In addition, a separate form listing the recipient charities must be filed with the Committee, where

it is considered confidential between the filer and the Committee, and NOT with the Office of

Public Records. 313 This form is available from the Committee. If the filer’s spouse or a candidate

received honoraria, the source, date the honoraria was earned, and exact amount of honoraria exceeding $200 must be publicly disclosed and listed on Part II, as such payments would qualify

as ‘‘earned income’’ (see below).

Part II: Earned and Non-Investment Income

Earned and non-investment income refers to compensation derived from employment, personal

efforts, 314 or other non-investment sources. It includes all fees, commissions, salaries, income from

personal services, retirement income, pension payments, and royalty payments. Such income must

be disclosed when it totals $200 or more from any one source in a calendar year. 315 Income received from employment by the Federal government (including military pay from Federal Reserve

programs), social security income, and retirement income from the federal government is not required to be disclosed. The source, type, and exact dollar amount of the reporting individual’s

CHAPTER 5 129

316 5 U.S.C. app. § 102(a)(1)(A). 317 Id. § 102(e)(1)(A). 318 Id. § 102(a)(3), (a)(1)(B). See Interpretative Ruling No. 311 (Mar. 17, 1980) with respect to reporting of inheritances.319 5 U.S.C. app. § 102(a)(1)(B).

earnings must be stated. 316 Only the source and type of non-honoraria earned income of a spouse

need be reported. Earned income of a dependent child need not be reported. 317

Staff should note that disclosure of income earned from outside employment is not a substitute

for obtaining the approval of one’s supervisor for such employment under Senate Rule 37.3. Additionally, disclosure does not waive Senate Rules 36 and 37 which contain various outside earned

income restrictions for individuals whose salaries exceed $25,000 and further limits for persons

whose salaries exceed the statutory financial disclosure filing threshold. These and other income

restrictions are discussed in detail in Chapter 3.

Parts IIIA and IIIB: Assets and Unearned Income Sources

Any property held by the filer, his/her spouse, and/or dependent children for investment or

the production of income (e.g. real estate, stocks, bonds, accounts, and business income) must be

disclosed if the property is worth more than $1,000 at the close of the reporting period or the

property generated income of more than $200 during the reporting period. 318

Defining Value: Filers have seven options to determine value –

1. recent appraisal of asset;

2. book value of non-publicly traded stock, or the exchange/face value of corporate stock,

bonds or comparable securities;

3. the net worth of the interest (as in a business partnership/interest);

4. the equity value of the interest (as in a solely owned business);

5. statement balance (e.g. bank accounts, excepted investment fund, or any investment

portion of an insurance policy);

6. for real estate—where the value is not ascertainable without an appraisal, (a) the assessed value for tax purposes adjusted to reflect current market value if the assessment

is computed at less than 100% of current value (with this option, the filer must describe

the method used to determine this value and list the actual and not the category of

amount); or (b) the actual purchase price of the real property and the date of purchase

(but both should be listed on the report form).

7. any other recognized indication of value (filer must describe the method of determination of value).

Where the value of an item is difficult to determine (or cannot be determined through the above

seven options), a good faith estimate of fair market value may be used to determine the value

of an asset. The filer must value assets as of any date that is within 31 days of the

close of the reporting period (e.g. for an annual Report, assets may be valued as of any date

in December or January). The exact value of assets that qualify as ‘‘unearned income sources’’

(i.e. those assets reportable on Part III) need not be disclosed; only the range of value within which

an asset falls – called the ‘‘category of value’’ – is required to be disclosed.

Defining Unearned Income: If an asset generates more than $200 during the reporting period, the source, category of value, type of income and either the exact amount of or category

of income must be disclosed. 319 ‘‘Unearned’’ income includes (but is not limited to) income derived from dealings in property; interest; rents; dividends; capital gains; income from annuities,

retirement income, the investment portion of life insurance policies, endowment contracts, forgiveness of debts owed by you; your distributive share of partnership or joint venture income; gross

business income; income from an interest in an estate or trust; and other amounts received as a

return on investment. The filer must report the gross amount of unearned income; net figures may

130 SENATE ETHICS MANUAL

320 Id. 321 Additional disclosure is required for publicly traded partnerships which (i) do not meet the test of an excepted

investment fund and (ii) are held for the purposes of investment. A filer needs to disclose each underlying asset of

a partnership where (i) the filer’s (or his/her spouse or dependent child’s) interest in that asset exceeds $1,000 in value

or (ii) where that asset generated more than $200 in income for the filer (or his/her spouse or dependent child). 322 See Interpretative Ruling No. 125 (May 25, 1978) (reporting of various types of real property interests). 323 See Interpretative Ruling No. 311 (Mar. 17, 1980).

also be disclosed if the filer so chooses. For purposes of determining whether the $200 threshold

has been met, the filer must aggregate all types of investment income from the specific source.

Income from dividends, rents, interest, capital, qualified trusts, excepted trusts, or excepted

investment funds may be reported by the category of the amount of the income (i.e. a range of

income as provided for in the Report). 320 All other investment income must be reported by the

actual dollar amount of the income from each source. The unearned income of a spouse or dependent child must be reported along with that of the reporting individual.

Distinguishing Publicly from Non-Publicly Traded Assets: Non-publicly traded assets

require more detailed disclosure than publicly traded assets, because they are not depicted in publicly available financial indices (e.g. Moody’s Complete Corporate Index, Standard and Poor’s

Register) and there is generally no publicly available source of information about them. For this

reason, Part III of the Report is divided into two sections. Part IIIA requires the disclosure of

the full name of each publicly traded stock, bond, mutual fund, publicly traded partnership interest, 321 excepted investment fund, bank account, annuity, futures contract, excepted or qualified

blind trust, and publicly traded asset of an IRA or other retirement plan, in which the filer’s investment exceeded $1,000 at the end of the reporting period or which generated more than $200 of

income within the reporting period. Non-publicly traded assets and unearned income sources include real property, 322 closely held corporations, pension interests, non-public IRA assets, private

tax shelters, beneficial interests in trust or estates, 323 commercial crops, livestock, accounts receivable, and collectable items held for resale or investment. In order to disclose the identity of these

non-publicly traded assets, the name, address (city and state), and description (including underlying

assets and nature of business) must be disclosed on Part IIIB—along with the disclosure of the

assets’ correlating categories of value, income and type of income.

Types of Traded Assets and Unearned Income Sources

1. Personal Savings Accounts must be disclosed if, (i) at the end of the reporting period,

all such accounts at a single institution total more than $5,000 in value or (ii) during the reporting period, all such accounts generated combined income of more than $200. Savings accounts

include checking, savings, certificates of deposit, and any other types of accounts offered through

financial institutions. Financial interests in U.S. Government retirement programs (e.g., the Thrift

Savings Plan) and social security benefits are not required to be reported.

2. Each Publicly Traded Stock or Bond needs to be identified by listing its complete

name (and preferably the exchange upon which it is listed) so that any person examining the Report may locate information regarding the holding through publicly available reports or reference

materials. Optionally, the filer may identify the stock using the symbol by which it is traded, but

the filer MUST also include the exchange upon which the stock is traded. If a filer holds different

types of securities of the same corporation (i.e. both common and preferred stock), these securities

should be aggregated to determine whether the holding is above or below the $1,000 reporting

threshold. The Committee will accept statements from a broker or investment advisor that are offered as attachments to Part III.

3. Municipal Bonds must be identified by the name of the municipality offering the bond

and the complete name of the bond which generally indicates its type.

CHAPTER 5 131

4. Real Property must be reported (with the state and city or county also listed) if the property is held for investment or production of income (e.g. commercial property, a summer home

rented during parts of the year). Conversely, property which is held or maintained solely for recreational or personal purposes does not have to be reported. However, if any portion of the personal residence or recreational property was rented or offered for rent or if the property includes,

for example, a working farm, ranch, mineral excavation, or other buildings for rent, that property

is considered to be used for the production of income and must be reported.

5. Personal Property not held for investment or the production of income does not have

to be reported. Intermittent sales from personal property (e.g. antiques or art holdings) demonstrate

that the items are held for investment and/or the production of income and should therefore be

reported.

6. Non-Public Securities or Partnership Interests must be reported by listing the complete name of the interest, its location (city and state) and the character or nature of the business,

interest, or property. The primary trade or business of non-public entities (as well as interests and

activities which are not solely incidental to such a trade or business) must also be disclosed. Investment clubs or other asset holding relationships which are organized to hold publicly traded

assets for the purposes of investment must be disclosed by not only identifying the name of the

investment club/entity, but by disclosing each underlying investment asset or property held by the

club/entity (and each asset’s underlying category of value) where (i) the filer’s (his/her spouse or

dependant child’s) interest in a particular asset exceeds $1,000 in value or (ii) a particular asset

generated more than $200 in income for the filer (his/her spouse or dependant child). However,

if the investment club/entity meets the test for an excepted investment fund (see below), then only

the full name of the club/entity need be disclosed, as well as its correlating category of value

and amount of income.

7. Interests in Estates must be reported by giving a brief and general statement of any

interest prior to distribution. Assets distributed during the reporting period and income for the estate are reported in the same manner as other assets and income.

8. Excepted Investment Funds—defined as a mutual fund; common trust fund of a bank,

pension or deferred compensation plan; or any other investment fund, which is (a) widely held

(i.e. more than 100 participants or investors), (b) publicly traded (or available) or widely diversified and (c) held under circumstances where the filer/spouse/dependent child neither exercises control over nor has the ability to exercise control over the financial interests held by the fund. A

fund is widely diversified when it holds no more than 5% of the value of its portfolio in the securities of any one issuer (other than the U.S. Government) and no more than 20% in any particular

economic or geographic sector.

For these funds, the filer is only required to indicate that the holding is an excepted investment fund and is not required to identify the specific or underlying assets of the fund. The

filer still, using the categories of value and income, must disclose the amount of income received

from the fund during the reporting period and the asset’s value as of the close of the reporting

period.

9. Mutual Funds must be identified by their complete names (e.g. Templeton Income Fund,

Fidelity Magellan Fund).

10. Retirement Plans: An individual who has a retirement plan (including an IRA, SEP,

401K plan or other pension plan) must identify each publicly traded asset which is held by the

retirement plan. If the retirement plan meets the definition of an excepted investment fund (described above), the underlying assets of that plan do not have to be disclosed. An IRA generally

will not meet the test for an excepted investment fund because the IRA is only held by one person

(either the filer/spouse/dependent child) and is thus not ‘‘widely held.’’ Even if the underlying

asset of the plan is an excepted investment fund, the specific excepted investment fund must be

132 SENATE ETHICS MANUAL

324 5 U.S.C. app. § 102(f)(2). 325 If the category of value for an excepted trust is unknown, the filer may indicate ‘‘unknown.’’

disclosed as a holding of the plan (listing the underlying assets of that excepted investment fund

is not required). For example, if a filer’s IRA is invested solely in Templeton World Fund, the

filer should indicate ‘‘IRA: Templeton World Fund’’ and this would be sufficient identification.

As stated before, the Committee will accept statements from a broker or investment advisor that

are offered as attachments to Part III.

Example 6. Senator E has a stock portfolio, managed by a stock broker. Senator E must

disclose each stock in the portfolio that is worth more than $1,000 at the end of the

reporting period or generates more than $200 in income during the year.

Example 7. Senator F begins the year with $1,200 of stock in Z-corp. Z-corp suffers

losses during the reporting period such that it declares no dividends during the year and

F’s stock declines in value to $900 by the end of the reporting period. F need not disclose her stock in Z.

Example 8. Senator H was a state legislator before becoming a Member of Congress.

Her interest in the state employees’ retirement program is worth $15,000. Senator H must

disclose this interest as an asset on her Financial Disclosure Statement.

Example 9. Senator I’s wife has an IRA, worth $12,000. Senator I must disclose (i) the

IRA and (ii), provided the IRA does not meet the test of an excepted investment fund,

each asset in the IRA which was worth more than $1,000 or generated more than $200

in income.

Example 10. Senator J owns a vacation home, which she uses for one month during

the year. The rest of the time, she allows family members and close friends to use it

at no charge. Senator J need not disclose this property, since there was no rental or other

kind of income derived from it.

Example 11. Senator K owns a vacation home, which he uses for one month during the

year. The rest of the time, he rents it out. Senator K must disclose this property.

Example 12. Senator L rents a basement apartment in her home for $400 a month. Senator L must disclose this rental income, as well as the property that generated it.

Example 13. Senator M owns an antique car, worth $50,000. M never uses the car for

commercial purposes; he uses it exclusively for his personal enjoyment. Senator M need

not disclose the car.

Example 14. Senator N invested in ‘‘Beltway’’ Investment Club, a club with nineteen

other participants all of whom invested the same amount. An underlying asset of the club

is worth $2,000 and generated $500 of income during the reporting period. This asset

is not reportable since the Senator’s interest in the asset is presumed to be $100 and

the Senator’s income is presumed to be $25, both of which are less than the disclosure

thresholds.

Trusts

On Part III, a reporting individual must provide the same information for underlying trust assets and income as for other items disclosable under Part III. A filer must list the complete name

of the trust and its underlying assets and also must disclose the corresponding categories of value

and income, as appropriate. The two instances when underlying trust assets need not be disclosed

are when the assets are held in (1) an ‘‘excepted’’ trust, or (2) a qualified blind trust. 324 For

these two types of trusts, the category of income and the category of value for the trust

as a whole must still be reported (on Part IIIA). 325

(1) An Excepted Trust: An ‘‘excepted trust’’ is one that was not created by the filer,

his or her spouse or dependent, and one in which none of these persons has specific knowledge

of the holdings or the sources of income of the trust. Although the filer may know the total value

of the trust, contributions to the trust by the filer, the filer’s spouse, and/or dependent child (including payment of trust taxes) will remove a trust from this ‘‘excepted’’ status.

CHAPTER 5 133

326 5 U.S.C., app. § 102(a)(5). This Section/Part does not apply to Candidates.

(2) A Qualified Blind Trust: A ‘‘qualified blind trust’’ must satisfy a number of requirements, including the following:

(1) The trustee must be an independent financial institution, lawyer, certified public accountant, broker, or investment advisor who (a) is independent of and not associated with any

interested party so that the trustee cannot be controlled or influenced in the administration of the trust by any interested party, (b) is not and has not been an employee of

or affiliated with any interested party and is not a partner with any interested party, and

(c) is not a relative of any interested party;

(2) There may be no restrictions on the disposal of the trust assets;

(3) The trust instrument must limit communications between the trustee and interested parties; and

(4) The trust instrument and the trustee must be approved by the Committee on

Ethics.

In creating such a trust, a Member, officer, or employee places financial assets under the exclusive

control of an independent party. All assets or holdings transferred to a qualified blind trust

at the time of its creation or anytime thereafter must be identified, valued, and publicly disclosed. The public disclosure filings of initial trust assets and asset transfers to the trust

are made with the Senate Office of Public Records, where any member of the public may inspect

them.

A trust agreement is not recognized by the Senate as creating a blind trust for any purpose

under Federal law or Senate Rules unless it has been approved by the Ethics Committee PRIOR

to its execution. A non-Senate, federal employee who has, or an individual who is an ‘‘interested

party’’ with respect to, a qualified blind trust recognized by the appropriate supervising ethics office, and who becomes a reporting individual for purposes of public financial disclosure with the

Senate would need approval from the Senate Ethics Committee if the trust is to be recognized

as a qualified blind trust by the Senate. For this reason, the Committee has drafted a model blind

trust agreement (available at the Committee), although no form language should unqualifiedly be

relied upon. Each provision of this model agreement should be considered in connection with the

circumstances of the particular case and modified to the extent that may be appropriate. Nevertheless, many of the provisions are required by statute and therefore must be included in a proposed

trust in order for it to be approved by the Committee.

In order for the Committee to approve a trustee, a trustee must execute a certification of independence (available at the Committee). Additionally, information must be submitted to the Committee respecting the relationship among the grantor, family members, the proposed trustee and

any proposed investment advisor for the Committee’s consideration in approving the trustee as

truly independent. Prospective trustees should contact the Committee to discuss the procedures and

legal requirements concerning blind trust communication restrictions and administration prior to

the certification of the trust.

Part IV: Transactions

Senate Members, officers and employees must include in the Report a brief description, the

date, and the category of value of any purchase, sale, or exchange of real property, stocks, bonds,

excepted investment fund (e.g. mutual fund) shares, commodities futures, or other forms of securities (including trust assets) that exceeds $1,000. 326 The category of value to be reported is the

total purchase or sale price (or the fair market value in the case of an exchange), regardless of

any capital gain or loss on the transaction.

134 SENATE ETHICS MANUAL

327 5 U.S.C., app. § 102(a)(2)(A). This Section/Part does not apply to Candidates.

Stock and commodity options, futures contracts, and bonds (corporate and government) are

considered types of securities. As such, transactions in these items are reportable. Transactions by

a partnership in which the reporting individual has an interest must be disclosed when the partnership is organized for the investment or production of income and is not actively engaged in a

trade or business. These partnership transactions need only be reported, however, to the extent that

the filer’s share of the transaction exceeds $1,000.

The purchase or sale of property used solely as a personal residence (including a secondary

residence not used for rental purposes) of the reporting individual or spouse and transactions solely

by and between the reporting individual, spouse, or dependent children need not be disclosed.

Likewise, the opening or closing of bank accounts, the purchase or sale of certificates of deposit,

and contributions to or the rollover of IRAs and other retirement plans need not be reported.

Example 14. Senator N sells stock in Company Z for $5,000, realizing a $700 capital

loss. N must report the $5,000 sale as a transaction. N may add that the sale represents

a loss if she so chooses, but this information is not required.

Example 15. Member O has a 25 percent interest in a partnership that buys and sells

real estate for investment purposes. The partnership buys a piece of property for

$400,000. O must disclose the partnership’s purchase and identify the property, in the

category of value reflecting his $100,000 share of the transaction.

Part V: Gifts

Senate Rule 35 limits the value of gifts that Members, officers, and employees of the Senate

may accept in a calendar year (see Chapter 2). The threshold for reporting gifts differs from the

rule on acceptance.

As of January 1, 1996, the Gifts Rule limit on acceptance of gifts is $49.99 per gift, with

an annual aggregate limit on gifts from a single source of $99.99 (gifts valued less than $10 are

nonaggregative). The disclosure threshold for gifts is $285. That is, Members, officers and employees are only required to disclose on the Report gifts valued at more than $285. 327

Disclosure of gifts does not authorize their acceptance, which may otherwise be a violation

of Senate Rule 35 and/or other applicable laws or rules.

Example 16. In 2003, Member Q was offered by an association a crystal vase worth

$150. The gift would violate the gift rule since it is worth more than $49.99 and, thus,

could not be accepted without a waiver from the Committee. If Q receives a waiver to

accept the gift, the gift would not have to be disclosed on the report filed in 2000, since

its value was less than $285. However, a copy of the waiver and the Senator’s request

for a waiver would be publicly available at the Committee’s offices.

If the gift must be disclosed, the donor, description, and value of the gift must be listed on

the Report. The Committee may waive the requirement that certain gifts be aggregated and disclosed for good cause, upon written request. Such requests, however, are publicly available.

The following gifts do not have to be disclosed:

1. Gifts from relatives;

2. Bequests and other forms of inheritance;

3. Suitable mementos of a function honoring the filer;

4. Food and beverages not consumed in connection with a gift of overnight lodging;

5. Gifts given to a spouse or dependent child completely independent of the relationship to the filer;

6. Gift items in the nature of communications to the filer’s office (e.g. subscriptions

to newspapers);

CHAPTER 5 135

328 5 U.S.C., app. § 102(a)(2)(B). This Section/Part does not apply to Candidates. 329 5 U.S.C. § 7342. 330 5 U.S.C. app § 102(a)(4).

7. Gifts received during non-Federal Government employment periods;

8. Campaign contributions;

9. Food, lodging, transportation and entertainment or reimbursements provided by a

foreign government within a foreign country, or by the Federal, D.C., state or local governments;

10. Gifts of personal hospitality (i.e. hospitality extended for a nonbusiness purpose

by an individual, at the individual’s residence or other property); and

11. Gifts for which a publicly available waiver was received for this reporting requirement.

Example 17. Member B receives from her father a gift of $10,000. B need not disclose

the gift.

Part VI: Reimbursements

Members, officers and employees must report travel-related expenses provided by nongovernmental sources for such activities as speaking engagements, conferences, or factfinding events

when they aggregate more than $285 in value from one source in a year. 328 These expenses include those reimbursed to the filer as well as those paid directly by the sponsoring organization.

For reimbursements and gifts of travel, the Report must list the source, travel itinerary, inclusive

dates, and nature of expenses provided. This reporting requirement applies to spouses and dependent children as well; however, it does not apply if the reimbursement was given to the spouse/

dependent child completely independent of the relationship to the reporting individual.

Example 18. Member B gives a speech in Chicago at a meeting of a trade association

which pays airfare, food, and lodging for B and his wife to attend. The expenses for

Senator and Mrs. B exceed $285. B must disclose the source, dates and nature of expenses, but need not report any dollar amounts.

Travel reported on campaign filings, such as Federal Election Commission reports, need not

be disclosed on the Report, nor need travel provided on an official basis by Federal, state or local

governments be reported. Reimbursements received during non-Federal Government employment

periods do not have to be disclosed. Travel provided by a foreign government pursuant to the

Foreign Gifts and Decorations Act 329 must be disclosed on a separate form for that purpose available from the Committee. Travel expenses accepted pursuant to a program approved under section

108A of the Mutual Educational and Cultural Exchange Act must be disclosed on the Report.

Disclosure of expenses to the Secretary of the Senate within 30 days after the travel is completed, as required by Senate Rule 35 (see Chapter 2), removes the obligation to disclose those

reimbursed expenses on the Report.

Part VII: Liabilities

Personal obligations aggregating over $10,000 owed to one creditor at any time during the

reporting period, regardless of repayment terms or interest rates, must be reported. 330 The identity

(name of the creditor), type, interest rate, term and amount of the liability must be stated. Except

for revolving charge accounts (e.g. credit card accounts), the largest amount owed during the calendar year is the value to be reported. For revolving charge accounts, the value is determined by

using the balance occurring within 30 days of the end of the reporting period (e.g. for annual

Reports, the year-end or December balance is used); however, if the revolving charge account is

less than $10,000 at the close of the reporting period, no reporting is required.

136 SENATE ETHICS MANUAL

331 5 U.S.C. app. § 102(a)(6)(A). 332 Id. at § 102(a)(7). 333 Id. at § 102(a)(6)(B).

Just as personal liabilities owed to a filer by certain relatives need not be reported as assets,

liabilities owed by a filer to a spouse, parent, brother, sister, or child of the filer or of the filer’s

spouse need not be listed. Mortgages secured by a personal residence (including secondary residences) that are not used for rental purposes do not have to be disclosed. Personal loans secured

by motor vehicles, household furniture, or appliances do not have to be disclosed, as long as the

indebtedness does not exceed the purchase price of the item. Senate filers are also not required

to report tax deficiencies (such matters involve the government as a creditor, are normally confidential, and may be contested) and contingent liabilities, such as that of a guarantor, endorser,

or surety.

Part VIII: Positions Held Outside U.S. Government

Filers must disclose any compensated or uncompensated nongovernmental positions that they

held during the reporting period or currently hold to the date of filing. 331 Examples of reportable

positions are officer, director, trustee, partner, proprietor, representative, employee, or consultant

of any corporation, company, firm, partnership, or other business enterprise, any nonprofit organization, any labor organization, or any educational or other institution other than the United States

Government. Positions held in a religious, social, fraternal, or political entity, and positions solely

of an honorary nature need not be disclosed.

The title or nature of each position and the name of the organization must be reported. Only

positions held by the filer need to be disclosed, not those held by a spouse or dependent child.

Any earned income over $200 received due to such an above position must be reported on

Part II as well. See Chapter 3 regarding an absolute prohibition on receiving compensation for

certain fiduciary positions.

Part IX: Agreements or Arrangements

Any agreements or arrangements of the reporting individual concerning future employment,

leave of absence during government service, continuation of payments from a private, state or local

government source, deferred compensation plans (including stock options), or continued participation in an employee benefit or welfare plan of a former private employer must be disclosed. 332

The parties, dates, and terms of the agreement must be reported. Only such agreements or arrangements by the filer need to be disclosed, not those agreements or arrangements of the spouse or

dependent child of a filer.

Continued payments or benefits from a former employer include interest in or contributions

to a pension fund, profit-sharing plan, or life and health insurance; buy-out agreements; and severance payments. A deferred compensation plan would include an arrangement for the delayed payment of amounts due for services rendered by a reporting individual. Deferred compensation

(based on services rendered prior to Senate service) is not subject to outside earned income limitations, but must be disclosed on the Report.

Part X: Compensation in Excess of $5,000 Paid by One Source

Candidates and new officers and employees must disclose any compensation in excess of

$5,000 received from a single source other than the United States. 333 This disclosure requires not

only the source of a filer’s salary or other fees, but requires the disclosure of clients (other than

the Federal Government) for whom the filer personally provided $5,000 or more in services even

though the client’s payments might have been made to the filer’s employer, firm, or other business

affiliate. Filers need disclose only their own compensation in this section, not that received by

CHAPTER 5 137

their spouses or children. Disclosure is required for the current (up to the date of filing) and the

previous two calendar years.

Both the name and location of the entity that made the payment must be specified. Although

the amount of compensation does not have to be disclosed, the nature of the duties performed

must be described—albeit generally. Thus, a firm name and ‘‘legal services’’ would be sufficient

for services rendered by an attorney. When a source has paid a filer directly, a corresponding entry

may be needed on Part II.

A filer does not have to disclose (a) information that is by law privileged and confidential

and (b) information about clients for whom services were provided by a business of which the

filer was a member/general partner/employee, unless the filer was directly involved in the provision of services. This disclosure does not require disclosure of protected confidential relationships

(such as doctor/patient), but does generally require disclosure of other non-protected fiduciary relations (such as attorney/client and accountant/client).

(138)

Chapter 6: POLITICAL ACTIVITY

Introduction ......................................................................................................................... 139

Campaign Work by Congressional Staff ............................................................................ 139

Political Fund Activity ................................................................................................. 142

Seeking and Holding Local Offices ............................................................................. 143

Campaign Activity in a Federal Building .................................................................. 144

Political Contributions from Senate Employees ........................................................ 147

Political Contributions from Other Federal Employees ............................................ 149

Quick Reference to Frequently Asked Campaign-Related Questions ............................. 149

General Campaign Finance Requirements ....................................................................... 151

Restrictions on Receipt of Contributions .................................................................... 152

Campaign Use of Official Resources .................................................................................. 153

Mailing Lists ................................................................................................................. 153

Use of Campaign Funds ...................................................................................................... 154

No Personal Use ........................................................................................................... 154

No Franked Documents ............................................................................................... 155

Legal Defense Funds .................................................................................................... 155

Federal Criminal Law: False Claims, Fraud and Theft ................................................... 155

List of Prohibited Campaign Activities ............................................................................. 157

139

334 This chapter draws extensively from Campaign Activities by Congressional Employees, by Jack H. Maskell,

Legislative Attorney, American Law Division, Congressional Research Service, Library of Congress, previously published as Part IV of COMM. ON RULES AND ADMINISTRATION, Senate Election Law Guidebook, S. Doc. No. 102–15,

102d Cong., 2d Sess. 283–312 (1991).

335 2 U.S.C. §§ 431–455.

336Title 11 of the Code of Federal Regulations.

337Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), aff’d, 461 U.S. 911 (1983).

Chapter 6

POLITICAL ACTIVITY 334

Rules 38.2, 40, and 41

INTRODUCTION

Title 31 of the United States Code, section 1301(a) states that ‘‘appropriations shall be applied

only to the objects for which the appropriations were made except as otherwise provided by law.’’

This principle of federal appropriations law has been interpreted in Congress to mean that congressional employees receive publicly funded salaries for performance of official duties and, therefore,

campaign or other non-official activities should not take place on Senate time, using Senate equipment or facilities. However, the Ethics Committee has previously ruled that it is not improper for

a Senate employee to engage in campaign activity on his or her own time so long as such activity

complies with Senate Rule 4l.l that prohibits fundraising by most Senate employees for federal

campaigns.

In addition to campaign work by staff, the topic of political activity also includes the uses

of campaign funds, and restrictions applicable thereto, by Members of the Senate. Like all candidates for federal office, Members are subject to regulations on campaign finance pursuant to the

Federal Election Campaign Act of 1971, as amended. 335 Under the provisions of that Act, the

Federal Election Commission (FEC) has been established as an independent regulatory agency to

oversee federal campaign finance procedures and practices. Senators should thus examine closely

provisions of the Federal Election Campaign Act, regulations promulgated by the FEC, and explanatory publications prepared by the FEC. 336 Moreover, certain campaign activities may run afoul

of provisions of the Federal Criminal Code.

This chapter will focus on those provisions not specifically under the authority of the FEC,

including campaign activities by Senate staff, restrictions in Senate Rules, and criminal code provisions. In addition, it will briefly highlight the major provisions of the large body of federal campaign law relating to registration, disclosure, and use of campaign contributions. Advisory opinions

interpreting specific provisions of that law may be requested from the FEC.

CAMPAIGN WORK BY CONGRESSIONAL STAFF

Senate employees are compensated from funds of the Treasury for regular performance of official duties. They are not paid to do campaign work. In the words of the United States District

Court for the District of Columbia: ‘‘It is clear from the record that Congress has recognized the

basic principle that government funds should not be spent to help incumbents gain reelection.’’ 337

140 SENATE ETHICS MANUAL

338Employees in the Office of the President were similarly not covered. Most restrictions prohibiting voluntary campaign activities on one’s free time have now been removed from the ‘‘Hatch Act’’ for most federal employees. See

P.L. 103–94, 107 Stat. 1001; 5 U.S.C. §§ 7321 et seq. 339 See, e.g., Interpretative Ruling No. 357 (Dec. 16, 1982); Interpretative Ruling No. 402 (Oct. 18, 1985). 340 See, e.g., Interpretative Ruling No. 49 (Aug. 5, 1977); Interpretative Ruling No. 86 (Nov. 8, 1977); Interpretative

Ruling No. 153 (June 22, 1978); Interpretative Ruling No. 154 (June 22, 1978); Interpretative Ruling No. 194 (Oct.

18, 1978); Interpretative Ruling No. 197 (Oct. 31, 1978); Interpretative Ruling No. 269 (June 26, 1979); Interpretative

Ruling No. 288 (Oct. 16, 1979); Interpretative Ruling No. 302 (Feb. 21, 1980); Interpretative Ruling No. 349 (Oct.

5, 1981); Interpretative Ruling No. 357 (Dec. 16, 1982); Interpretative Ruling No. 402 (Oct. 18, 1985). See also SENATE

COMM. ON RULES AND ADMIN., Review of Laws Related to Contributions Made by or Solicited from Senate Officers

and Employees and the Use of Official Staff by Holders of Public Office in Federal Campaigns, S. Rep. No. 95–500,

95th Cong., 1st Sess. 4 (1977); S. REP. NO. 95–241, 95th Cong., 1st Sess. 1. 341 A staffer may also attend campaign events during non-working hours of an otherwise official trip. Interpretative

Ruling No. 88 (Nov. 16, 1977). 342 See, e.g., Interpretative Ruling No. 194 (Oct. 18, 1978); Interpretative Ruling No. 263 (June 12, 1979). 343 Interpretative Ruling No. 302 (Feb. 21, 1980). 344 Interpretative Ruling No. 153 (June 22, 1978). 345 39 U.S.C. § 3210(a). 346 Senate Rule 38. 347 Senate Rule 40.5. 348 2 U.S.C. § 439a.

Nonetheless, the ‘‘Hatch Act,’’ which until recently prohibited partisan political activity by

federal civil service employees, never applied to congressional staff. 338 As discussed more fully

below, Senate Rule 41 prohibits Senate staff, with the exception of specified ‘‘political fund designees,’’ from handling federal campaign funds. Subject to that restriction, however, and as long

as they do not neglect their official duties, Senate employees are free to engage in campaign activities on their own time, as volunteers or for pay, 339 provided they do not do so in congressional

offices or otherwise use official resources. 340 An employee’s ‘‘own time’’ includes time beyond

regular working hours, 341 any accrued annual leave, 342 or non-government hours of a part-time

employee. Staff may not be required to do political work as a condition of Senate employment.

Just as Senate employees are free to campaign for their employing Members on their own time,

they may also use their free time or, with the permission of their employing Members, reduce

their Senate hours (with a commensurate reduction in pay) to campaign for presidential candidates, 343 other federal candidates, or state or local aspirants. 344 With respect to the question

of leave time to perform campaign activities, it is the Committee’s understanding that the Senate

does not recognize a ‘‘leave of absence.’’

The Committee has ruled that it is proper for a Senator to either reduce the salary or remove

the employee from the Senate payroll when the employee intends to spend additional time on campaign activities, over and above accrued leave time or vacation time (see I.R. 194). However, in

order to receive any level of Senate salary, pay should be commensurate with actual duties performed for the Senate. Moreover, if the amount of time an individual continues to provide services

to the Senate were to go too low (the Committee has previously approved a 1 day Senate work/

4 day campaign work arrangement, where the individual’s salary was reduced by 80%) the arrangement could raise a question as to whether Senate benefits are being used for an individual

whose benefits should more appropriately be paid by the campaign. Such dual employment situations, particularly those involving significant reductions in the amount of time an individual provides Senate services have also generally been time-limited, usually confined to the employing

Senator’s election cycle. An employee may be terminated from the Senate and return at a later

date.

The difference between official representational and legislative duties on the one hand and

political activities on the other has long been recognized in Congress, specifically in such provisions as the franking law, 345 the rules on unofficial office accounts 346 and computer facilities, 347

and the Federal Election Campaign Act. 348 Moreover, the Supreme Court has acknowledged the

CHAPTER 6 141

349Buckley v. Valeo, 424 U.S. 1, 84 n. 112 (1976); see also Common Cause v. Bolger, supra note 334. 350Common Cause v. Bolger, supra note 334. 351 See Interpretative Ruling No. 154 (June 22, 1978); Interpretative Ruling No. 263 (June 12, 1979).

distinction ‘‘between the legitimate and necessary efforts of legislators to communicate with their

constituents’’ on the one hand, and ‘‘activities designed to win elections by legislators in their

other role as politicians,’’ on the other. 349 While some legitimate representative duties, such as

services and communications to constituents, might yield some political benefits, they are generally

distinguishable from those activities typically understood by congressional rule, statute, and practice to be political ‘‘campaign’’ activities, such as the solicitation of political contributions, canvassing votes, organizing political fundraisers, and coordinating campaign volunteer lists.

Traditionally, the specific duties of a Member’s staff are within the discretion of the employing Member to best meet the Member’s needs and those of his or her constituents. As one court

observed: ‘‘To state the obvious, it is simply impossible to draw and enforce a perfect line between the official and political business of Members of Congress.’’ 350 It is recognized that in the

practical operation of a Member’s office some minimal campaign-related activities might unavoidably be performed by a Member’s staff in the course of their official congressional duties for a

Member. In responding to ‘‘official’’ inquiries from the press or constituents, for example, congressional staffers may need to address questions that relate to a Member’s political campaign.

Similarly, scheduling assistance and information from the official staff may be requested by the

campaign staff to ensure that no conflict occurs between the Member’s campaign schedule and

official agenda. Moreover, since congressional staff may work irregular hours often depending

upon the time the Senate or House stays in session, a staffer’s ‘‘free time’’ or ‘‘off-duty’’ hours

might occur in what is typically considered the conventional work day. Although some minimal

‘‘overlap’’ may thus reasonably exist, it is the Member’s responsibility to keep campaign related

activities by staff during duty hours to a ‘‘de minimis’’ amount, and to observe the general principle that staff are compensated from public funds for their assistance in the Member’s official

legislative and representative duties, rather than for services to the Member’s political campaign. 351

Example 1. A reporter calls Senator A’s congressional press secretary to obtain information on some legislation A is sponsoring. In the course of the interview on the legislation,

the reporter asks how A perceives the bill will affect his upcoming reelection campaign.

The press secretary may answer the question.

Example 2. Senate staffer B works for Senator C and also volunteers on C’s campaign.

C’s political opponent levels charges of ethical improprieties against her, which C believes require an immediate response. B may not spend official work time preparing the

campaign’s response. He may use his lunch hour or accrued leave time to do the campaign work during what would normally be his working hours, assuming that his official

duties will not thereby be neglected.

Example 3. C asks B to prepare a response, after official working hours, to the charges

raised by her political opponent. B may comply, but B may not stay late at the office,

using Senate resources such as the office computer and the official mailing list, to do

the campaign assignment.

Example 4. Senator D asks his campaign workers, including some volunteers from his

Senate staff, to come to his campaign headquarters on a Saturday to help stuff envelopes

for a campaign mailing. The congressional staff may attend.

Example 5. Various employees on Senator E’s official staff have volunteered to help E’s

campaign run a telephone fund drive. The employees may not stay late at the Senate

office and make the calls from there, moreover, only those employees who were Political

Fund Designees under Rule 41 could participate in fundraising.

To avoid some of the more serious problems which may arise from the performance of regular

campaign responsibilities by a staff employee on the public payroll, the Senate Select Committee

on Ethics has recommended on various occasions that when a staffer is to engage in campaign

142 SENATE ETHICS MANUAL

352 See Interpretative Ruling No. 3 (May 5, 1977); Interpretative Ruling No. 5 (May 11, 1977); Interpretative Ruling

No. 59 (Sept. 13, 1977); Interpretative Ruling No. 194 (Oct. 18, 1978); Interpretative Ruling No. 263 (June 12, 1979);

Interpretative Ruling No. 326 (July 1, 1980).

353Rule 41.1 addresses the tangible aspects of fundraising, i.e., who may actually ask for and receive funds. The

more difficult intangible issues, e.g., avoiding the appearance that campaign contributors are accorded special Senate

access or influence, are discussed in Chapter 7, concerning Senate Rule 43, Constituent Service.

354 See Interpretative Ruling No. 387 (Sept. 17, 1984).

355 See Interpretative Ruling No. 291 (Nov. 26, 1979).

356 See Interpretative Ruling No. 387 (Sept. 17, 1984).

357 See Interpretative Ruling No. 326 (July 1, 1980).

activities on behalf of the Member for any ‘‘extended’’ period or to any ‘‘substantial’’ degree that

the Member either remove the staffer from the Senate payroll for that period and compensate the

staffer with campaign funds, or reduce the staffer’s compensation from public funds commensurately with the reduction in official duties of the staffer during his time of increased campaign

activities. 352 Finally, at any time, but particularly during a campaign, the public’s perception of

the conduct of an elected official and his or her staff may have significance beyond the mere conformity with the technical requirements of rules or statutes. When official staff are involved in

a Member’s reelection campaign, such activity may be an easy target for political opponents seeking media attention by charging that official government personnel are being used for private political campaigning, raising the specter of appearances of impropriety. Although one can not insulate

a Senator/candidate completely from specious and unfair political attacks, sufficiently precise and

accurate record keeping and time logs of one’s official congressional work and duties, for which

one receives a salary from the government, may be useful for documentation during a period when

the staffer is also working on the campaign during his or her ‘‘free’’ or ‘‘non-official’’ time.

Political Fund Activity

As mentioned above, Senate Rules restrict campaign fund activity by Senate officers and employees. Senate Rule 41.1 prohibits most Senate officers and employees from handling any campaign funds for a federal election. 353 An employee or officer of the Senate may not ‘‘receive,

solicit, be a custodian of, or distribute’’ campaign funds of any federal candidate, unless the employee is employed in the Senator’s personal office and is one of three assistants specially designated by his or her employing Senator to perform such activities. Each of these assistants, commonly referred to as a ‘‘political fund designee’’ (or ‘‘PFD’’), must earn more than $10,000 in

Senate salary and must file a financial disclosure statement, under Rule 34, for each year in which

he or she is so designated. One of the three assistants must be in Washington, D.C. Rule 41 also

permits the Majority Leader and the Minority Leader each to designate a leadership office employee as one of the three assistants. All designations must be in writing and filed for public inspection with the Secretary of the Senate.

The Select Committee on Ethics has ruled that a political fund designee may handle funds

for the principal campaign committee of the employing Senator, for a committee or organization

established and controlled by a Senator or a group of Senators, 354 or for a state or local committee

of a national political party, 355 as long as the employing Member gives permission. Note that the

group of political committees for which a political fund designee may solicit or handle funds does

NOT include House (or Senate) candidate committees, unless that committee is established and

controlled by a Senator or group of Senators. Employees may also not handle funds for committees

set up by trade associations, interest groups, corporations, labor unions, or groups advocating particular public policy or ideological causes. 356 The Committee has construed Rule 41 to mean that

non-designated Senate employees may not ‘‘solicit others to solicit funds or otherwise become involved to any substantial degree in political fund activity.’’ 357 Non-designees may help plan fundVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00156 Fmt 5222 Sfmt 5222 SMANUAL.006 ETHICS1 PsN: ETHICS1
CHAPTER 6 143

358 See Interpretative Ruling No. 3 (May 5, 1977); Interpretative Ruling No. 5 (May 11, 1977); Interpretative Ruling

No. 22 (May 26, 1977); and Interpretative Ruling No. 88 (Nov. 16, 1977). 359 See Interpretative Ruling No. 204 (Dec. 5, 1978); Interpretative Ruling No. 182 (Sept. 29, 1978). 360 See Interpretative Ruling No. 326 (July 1, 1980); Interpretative Ruling No. 204 (Dec. 5, 1978). 361 See Interpretative Ruling No. 59 (Sept. 13, 1977). 362 See Interpretative Ruling No. 387 (Sept. 17, 1984). 363 Id. 364 Id. 365 See Interpretative Ruling No. 154 (June 22, 1978). 366 See Interpretative Ruling No. 387 (Sept. 17, 1984). 367 Interpretative Ruling No. 204 (Dec. 5, 1978). See also Interpretative Ruling No. 182 (Sept. 29, 1978). 368 5 U.S.C. § 5533.

raising events but may not host such events or otherwise be involved in the actual solicitation

or acceptance of funds. 358

Rule 41’s restrictions do not extend to campaign finance activity related to strictly state or

local political contests. 359 The Senate Select Committee on Ethics has made clear, however, that

the state or local political fund activity must be clearly distinguishable from any activities in connection with a federal election in order to be permitted under the Rule. 360 Since Rule 41 restricts

only those on the Senate payroll, an individual who terminates his or her Senate employment, even

with the expectation of being rehired at a later date, would be free to handle federal campaign

funds during the period he or she was off the payroll, whether or not the employee had been

a political fund designee. 361

Example 6. Senator F has established and controls a multi-candidate political committee.

Employee G, who works for another Senator, may raise funds for F’s committee, as long

as G has the permission of and is a political fund designee of her employing Member,

and she does the fundraising outside of Senate hours and premises. 362

Example 7. Staffer H, a political fund designee, may, on his own time and with the permission of his employing Member, raise funds for the Democratic or Republican Senatorial Campaign Committee. 363

Example 8. Staffer I, a political fund designee of Senator J, may, with J’s approval, raise

funds for the campaign of Senator K. 364

Example 9. L works two days a week in Senator M’s senatorial office and spends the

rest of her time as a paid employee of M’s campaign committee. Unless L is a political

fund designee, she may not handle campaign funds in either office. 365

Example 10. The political action committee of the National Association of Rubber

Ducky Manufacturers (QuackPAC) asks Staffer N to take a part-time, after hours position

soliciting funds to be distributed to candidates for federal elections. Although N is a political fund designee, he may not take the job. 366

Example 11. Staffer O, who is not a political fund designee, may serve as a party’s local

precinct chairman, a position involving periodic solicitation of funds for exclusively state

and local candidates. 367

Seeking and Holding Local Offices

As noted in Chapter 3, Senate employees may run for elective office, although they may effectively be barred from simultaneously holding a full-time elective office and retaining their congressional employment. Federal statutes such as those dealing with dual pay and dual employment, 368

and precedents and constitutional provisions with regard to ‘‘incompatible offices’’ would in most

cases bar a Senate employee from simultaneously holding another paid position or office within

the Federal Government.

As far as State, local, or any other outside positions, common sense, as well as various Senate

Rules concerning outside employment and conflicts of interest, dictates that a full-time congressional employee may not simultaneously hold an outside, full-time position. Many State or local

elective positions, however, involve merely part-time commitments, entailing only evening and

144 SENATE ETHICS MANUAL

369 General restrictions on outside employment are discussed in more detail in Chapter 3. Also, elected or appointed

positions with the District of Columbia government present conflict of interest considerations not present with state or

local governments.

370 See Interpretative Ruling No. 55 (Sept. 7, 1977).

371 See Interpretative Ruling No. 109 (Mar. 23, 1978); see also Interpretative Ruling No. 155 (June 28, 1978).

372 See, e.g., Interpretative Ruling No. 359 (Jan. 3, 1983).

373 See Interpretative Ruling No. 326 (July 1, 1980) (non-PFD might be state party’s National Committee Chair);

Interpretative Ruling No. 291 (Nov. 26, 1979) (only PFD could serve as CEO of state party committee); Interpretative

Ruling No. 204 (Dec. 5, 1978) (non-PFD could be party’s precinct chair).

weekend hours or intermittent duties. Thus, any potential ‘‘time’’ conflict with one’s Senate job

may be avoided, perhaps with an adjustment in Senate hours and pay. If there is also no apparent

incompatibility or ‘‘subject matter’’ conflict with the Senate employment, and the employee’s supervising Senator approves, a Senate staffer could hold a State or local office. 369

Interpretative Rulings by the Senate Select Committee on Ethics have, for example, expressly

permitted a full-time employee of a Member (the Member’s press relations coordinator) to serve

as a city council member at a salary of less than $200 a month. 370 Similarly, the Select Committee

ruled that if adjustments were made in the official congressional salary of a staff member to reflect

the decrease in the congressional work performed by the staffer because of a new position held,

and if a restriction on Senate duties were imposed when necessary to avoid conflicts of interest,

the staffer could run for and hold a compensated elected office in the state legislature and still

remain a Senate employee in the district office of the Member. 371

Although federal laws and rules might not prohibit such office-holding, state and local statutes

and ordinances of the jurisdiction concerned should be examined, as those provisions often expressly prohibit an elected or appointed officer of the jurisdiction from simultaneously holding federal office or employment.

Members and staff are also permitted to seek and hold party positions. 372 Determinations as

to whether particular positions would necessarily entail soliciting or handling federal campaign

funds and therefore only be available to political fund designees will be made by the Committee

on a case-by-case basis. 373

Campaign Activity in a Federal Building

When congressional employees become involved in campaign financing activities, an important consideration is a provision now codified at 18 U.S.C. § 607, which restricts the solicitation

or receipt of political contributions in federal buildings or other federal facilities. The amended

and renumbered version of the prohibition states as follows:

Section 607. Place of Solicitation

(a) It shall be unlawful for any person to solicit or receive any contribution within the

meaning of section 301(8) of the Federal Election Campaign Act of 1971 in any room

or building occupied in the discharge of official duties by any person mentioned in section 603, or in any navy yard, fort, or arsenal. Any person who violates this section shall

be fined not more than $5,000 or imprisoned not more than three years, or both.

Although it prohibits the receipt or solicitation of campaign contributions in a federal building,

the amended statute recognizes that it is often unavoidable that unsolicited campaign contributions

will be received through the mail or a contribution by a supporter will be tendered in person,

within a congressional office. When this situation occurs the statute specifically provides that a

staff employee of a Member of Congress may accept the contribution and forward it within seven

days of receipt to an appropriate campaign organization outside of the congressional office. This

provision of 18 U.S.C. § 607 states as follows:

CHAPTER 6 145

374 125 Cong. Rec. S19099–19100 (daily ed. Dec. 18, 1979) remarks of Sen. Hatfield. 375 See Pendleton Act, 22 Stat. 403, 407, 14 1Cong. Rec. 640, 865; note specifically 62 Stat. 722, 18 U.S.C. §

603 (1948); see H.R. Rep. No. 305, 89th Cong. 1st Sess. A51. 376 209 U.S. 39, 44 (1908). 377 Although questions might be raised as to the criminal provision’s technical coverage of solicitations from a congressional office directed to persons not in a federal building, the House Standards Committee has stated that regardless

of the target of the solicitation or its coercive nature, ‘‘no activities of a political solicitation nature should occur with

the support of any federal resources (staff or space) in order to avoid any question that a violation of 18 U.S.C. §

607 has occurred.’’ ‘‘Dear Colleague’’ letter from Committee on Standards, November 21, 1985, at 2. See also Maskell

Report for CRS, infra.

Section 607

(b) The prohibition in subsection (a) shall not apply to the receipt of contributions by

persons on the staff of a Senator or Representative in, or Delegate or Resident Commissioner to, the Congress, provided that such contributions have not been solicited in any

manner which directs the contributor to mail or deliver a contribution to any room, building, or other facility referred to in subsection (a), and provided that such contributions

are transferred within seven days of receipt to a political committee within the meaning

of section 302(e) of the Federal Election Campaign Act of 1971.

The prohibition of this statute and the exception to it were discussed on the floor of the Senate

prior to the adoption of this provision as part of the Federal Election Campaign Act Amendments

of 1979:

Solicitation or receipt of contributions in any room or building occupied by a Federal

employee in the course of official duties is prohibited. The sole exception is for contributions received by an individual on the staff of a Member of Congress, provided the contributions are transferred to the Member’s political committee within 7 days. This exception is intended to cover situations in which a contributor, although not requested to,

mails or delivers a contribution to a Federal office. The exception does not authorize solicitation from a Federal office, nor does it permit receipt of contributions in a Federal

office where such contributions have been solicited in any manner which directs the contributor to return contributions to a Federal office. 374

Note well that the seven day provision of 18 U.S.C. § 607 applies to unsolicited contributions only: it does not authorize solicitation from a federal (including congressional)

office nor does it permit receipt of contributions in a federal office where the contributions have been solicited in a manner which directs the contributor to return contributions

to a federal office.

As for the act of soliciting contributions from a congressional office, it should be noted that

while this criminal prohibition has thus far not specifically been construed by the courts to prohibit

the solicitation of campaign contributions from a federal building by letter or telephone to persons

who are not located in a federal building, such activities would be barred by other provisions of

law and regulation relating to appropriations and official allowances. The criminal prohibition at

section 607 was originally intended and was historically construed to prohibit anyone from soliciting contributions from federal clerks or employees while such persons were in a federal building. 375 In interpretations of this provision, the focus of the prohibition has been directed to the

location of the individual from whom a contribution was requested, rather than the location from

which the solicitation had originated. In 1908 the Supreme Court had occasion to interpret the

statute which was the predecessor of the current section 607. The Court in United States v.

Thayer, stated that the act of ‘‘solicitation’’ is completed, and therefore arises, at the location

where the request for a contribution is received by the person to whom the request is made. The

Court stated: ‘‘. . . the solicitation was in the place where the letter was received.’’ 376 The Department of Justice has noted that the statute was intended to fill a gap in protecting federal employees from assessment by prohibiting all persons from soliciting such employees while they are

in a federal building. 377

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378 See for example 2 U.S.C. §§ 58 and 59, among others. The U.S. Senate Handbook (1996 edition) prepared

by the Committee on Rules and Administration provides further examples of official allowances such as Senate equipment (I–44);Internet services (I–44&45); and telecommunications (I–46). See also Appendix J in this manual for the

Rules Committee policy on use of Senate Rooms, the Russell Rotunda and Courtyard, the Hart Atrium, and the Capitol

Rotunda that prohibits among other activities the use of Senate space for any political campaign activity. 379 See, for example, disciplinary report from House Committee on Standards of Official Conduct, H.R. Rep. No.

101–293, 101st Cong., 1st Sess. (1989), In the Matter of Representative Jim Bates, at 8, 10–11. The Committee concluded: ‘‘Moreover, use of House resources (including employees on official time) to solicit political contributions is

improper.’’ Id. at 12.

The use of federal office space, including congressional office space, official government

equipment and supplies paid for from federal tax dollars for purposes of soliciting campaign contributions or for other clearly political campaign activities could involve violations of other federal

laws, congressional regulations and standards. Provisions of the United States Code, congressional

regulations governing allowances, and appropriations provisions specify that amounts provided a

Senator from appropriated funds for such items as telephone, mail, office space, stationery, etc.,

are for the use of such items only for ‘‘official’’ or ‘‘strictly official’’ purposes. 378 These provisions appear to bar the use or conversion of such supplies, equipment, or facilities for ‘‘campaign’’

purposes, rather than for ‘‘official’’ congressional business. Also, section 193d of Title 40 pertaining to the Capitol Grounds states that ‘‘it is forbidden to offer or expose any article for sale

in said United States Capitol Grounds; to display any sign, placard, or other form of advertisement

therein; to solicit fares, alms, subscriptions, or contributions therein.’’ As discussed earlier in this

report with respect to the official allowances for congressional staff, the use of official allowances

or supplies, services, or goods secured by such allowances, for other than the official purposes

for which the appropriations were made, or for other purposes than those which the Member had

certified or documented in vouchers, might potentially subject someone to legal liabilities concerning false claims, fraud or possibly even conversion or theft. The ethics committees in both

the House and the Senate have thus found that general campaign or campaign fund activities

should be conducted outside of the official office 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. 379

The following excerpt from the Congressional Research Service may provide useful guidance

on the issue of the use of federal funds and facilities:

There is no overall, express restriction in federal statutory law concerning the use of appropriated funds for partisan ‘‘political purposes,’’ and Congress may appropriate, and has appropriated, federal funds for use in political campaigns, such as in the Presidential Election

Campaign Fund Act and the Presidential Primary Matching Payment Account Act. However,

a general appropriations principle, codified in federal law at 31 U.S.C. § 1301(a), states that

monies appropriated by Congress may only be spent for the purposes for which they were

appropriated. This provision bars the misapplication or misuse of federal funds by federal

agency personnel. That is, funds appropriated by Congress for an agency or a federal office

for official purposes, may not be diverted and used for partisan political campaigns. As the

General Accounting Office explains, ‘‘Generally speaking, funds appropriated to carry out a

particular program would not be available for political purposes, i.e., for a propaganda effort

designed to aid a political party or candidate. If for no other reason, such an expenditure

would be improper as a use of funds for other than their intended purpose in violation of

31 U.S.C. § 1301(a).’’ [GAO. Principles of Federal Appropriations Law, at 4–178 (1992)]

Federal agencies and departments have discretion to expend federal funds to promote and

to further the legitimate, official governmental objectives of the federal agency, department,

or entity and the programs and policies within their jurisdiction. See Principles of Federal

Appropriations Law, supra at 4–14 to 4–20. Federal monies may not be expended merely for

any purpose, however, and the expenditure must ‘‘contribute to accomplishing the purpose of

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380 18 U.S.C. § 603.

381 Pub. L. No. 96–187, 96th Cong., 2d Sess., 93 Stat. 1367 (1980).

382 See 18 U.S.C. § 607 (1976 Code); See generally S. Rep. No. 95–500, at 5–7.

383Letter from Henry E. Peterson, Ass’t Att’y Gen., Crim. Div., by Thomas J. McTiernan, Chief of the Fraud Section, U.S. Dep’t of Justice (Aug. 12, 1974) reprinted in S. Rep. No. 95–500, supra note 7, app. at 43–44.

384 See Section 14 of the Pendleton Act, 22 Stat. 403 (1883). Similar restrictions on some federal employees making

political contributions to other employees, and receiving such contributions from other employees, have been upheld

against constitutional challenge. See Ex parte Curtis, 106 U.S. 371 (1882); United States v. Wurzbach, 280 U.S. 396

(1930).

the appropriation the agency wishes to charge.’’ lat. at 4–16. The Comptroller General has

thus looked to activities to determine if they ‘‘can be said to be so completely devoid of any

connection with official functions or so political in nature that [the expenditures] are not in

furtherance of purposes for which Government funds were appropriated.’’ Decision of the

Comptroller General, B–147578, November 8, 1962, at p. 5; see also B–144323, November

4, 1960, Principles of Federal Appropriations Law, supra at 4–178. Where there has been

a ‘‘determination’’ made by the President, cabinet officer, agency head or assistant that certain

activities ‘‘are in connection with official duties,’’ the Comptroller General would look merely

to see if ‘‘there is a reasonable basis for such a determination.’’ Id. 5. It may be noted that

the issue of whether an activity is ‘‘official’’ or ‘‘political’’ has arisen from time to time with

respect to travel by the President and Vice President, and that guidance given by the Department of Justice concerning the expenditure of funds for travel, including the reimbursement

of the Government from campaign funds for ‘‘political’’ travel, stated that ‘‘funds appropriated for the official functioning of the offices of the President and the Vice President’’ may

be used ‘‘only if the [activity] is reasonably related to an official purpose.’’ See 6 Op. O.L.C.

214 (1982).

See Campaign Fund-Raising Controversy and Investigation, Kevin Coleman, Joseph Cantor, Jack Maskell, Marie Morris and L. Paige Whitaker, Congressional Research Service, The Library of Congress (August 26, 1998, Order Code IB97045).

Political Contributions from Senate Employees

An employee of the Federal Government may not make a political contribution to a Member

of Congress or another federal official who is the employer or employing authority of the contributor. 380 Prior to an amendment effective in 1980, 381 congressional staff and other employees of

the Federal Government were prohibited from making political contributions to any other federal

officer, employee, or Member of Congress, regardless of the employment relationship of the parties. 382 Although in practice the statute was not strictly enforced, 383 such a restriction on employees had been in effect in some form since the late 1800’s. 384

Under current 18 U.S.C. § 603, a Senate employee is prohibited from making political contributions only to the ‘‘boss,’’ that is, the employer or employing authority. A Senate employee

who is prohibited from making a contribution should be aware that a contribution by another (a

spouse, for example) under certain circumstances (from joint assets or a joint account with the

Senate employee, for example) may be attributed to the employee, thereby implicating the statute.

As explained in the House Report accompanying H.R. 5010 (96th Congress, 1st Session):

Section 603 has been amended to allow voluntary contributions from federal employees

to other federal employees. If, however, the individual is employed by a Senator, Representative or Delegate or Resident Commissioner to Congress, that employee cannot contribute to

his or her employer although voluntary contributions to other Members of Congress would

be allowed. An individual employed by a congressional committee cannot contribute to the

chairman of that particular committee. If the individual is employed by the minority that indiVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00161 Fmt 5222 Sfmt 5222 SMANUAL.006 ETHICS1 PsN: ETHICS1
148 SENATE ETHICS MANUAL

385 Federal Election Campaign Act Amendments of 1979, H.R. Rep. No. 96–422, at 26. 386 See Interpretative Ruling No. 301 (Feb. 21, 1980). 387 2 U.S.C. § 432(e)(3). 388 See 11 C.F.R. § 110.6. 389 11 C.F.R. § 116.5(b) (issued June 27, 1990). This and other provisions defining ‘‘contributions’’ under federal

election law contain exceptions for certain travel, food, and lodging expenses personally incurred by a campaign worker

and for certain costs incidental to hosting a campaign event in one’s home or in a church or community center (of

course, a Senate employee who is not a political fund designee may not host any campaign event in connection with

any federal campaign). See 2 U.S.C. § 431(8)(B)(ii); 11 C.F.R. §§100.7(b)(6) and (8). 390 See 11 C.F.R. section 100.7(a)(2). 391 § 301(8)(B)(i) of the FECA, as amended.

vidual cannot contribute to the ranking minority member of the committee or the chairman

of the committee. 385

Senate staff may contribute to any candidate, including a Senator, except the employer or employing authority of the staffer. 386 In addition, a Senate employee may contribute to a committee

or organization that is not the ‘‘authorized committee’’ or campaign committee of the candidate.

Generally, under federal campaign law, a multi-candidate committee or a PAC, which supports

more than one federal candidate, may not be designated as an ‘‘authorized committee’’ of a candidate. 387 Therefore, Senate staff may make political contributions to multi-candidate political

committees such as the Democratic or Republican Senatorial or Congressional Campaign Committee, the Republican or Democratic National Committee, or any PAC, even though some of the

proceeds received by such committees may eventually be expended for the benefit of the contributor’s employer. In making such a contribution, however, an employee should not specifically earmark it for use in the campaign of the employing Member, since that could be deemed a contribution from the employee to the Member. 388

For the purposes of current restrictions on contributions by Senate employees, the term ‘‘contribution’’ is defined in 2 U.S.C. § 431, the Federal Election Campaign Act, as amended. This

definition specifically excludes the value of voluntary services provided by an individual to a candidate or committee. Thus, staffers may voluntarily provide services on their own free time to their

employing Members’ campaigns. However, the FEC includes within its definition of contribution

most outlays that an individual makes on behalf of a campaign, regardless of expectation of reimbursement. Under this regulation, a Senate employee (including a PFD) who volunteers on his or

her employing Member’s campaign may not pay expenses for the campaign, even if the campaign

promptly pays the staffer back. 389 In addition, the definition of ‘‘contribution’’ refers only to federal election campaigns, so a Senate employee may make a monetary contribution in any state

or local contest, including one in which a federal officer or employee is running or soliciting

funds. Similarly, since Senate Rule 41 restricts political fund activity relating only to federal elections, Senate staffers would not be barred from soliciting and receiving voluntary contributions

strictly for state or local candidates from fellow staffers or from other federal employees.

Fundraising dinners, testimonials, and similar events are common methods for candidates to

raise money for an upcoming political campaign or to pay off previous campaign debts. The price

of a ticket to such an event is generally considered a campaign contribution from the purchaser

of the ticket to the candidate on whose behalf the event is being held. 390 Thus, a Senate employee

should not purchase such a ticket or contribute money to a fundraiser or testimonial given for

his or her employing Senator. An employee could, however, attend a fundraiser as a non-paying

guest. Furthermore, a Senate employee may volunteer his or her own free time to work on the

fundraiser since voluntary services are not considered ‘‘contributions’’ under federal campaign

law. 391 As described above, however, Senate Rule 41 prohibits any employee from handling federal campaign funds unless the individual is one of three persons specified by his or her employing

Senator as a ‘‘political fund designee.’’ Unless so designated, a Senate employee should not solicit,

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392 See Interpretative Ruling No. 3 (May 5, 1977); Interpretative Ruling No. 5 (May 11, 1977); Interpretative Ruling

No. 22 (May 26, 1977); Interpretative Ruling No. 88 (Nov. 16, 1977). 393 18 U.S.C. § 602. 394 See Comm. on House Admin., Federal Election Campaign Act Amendments of 1979, H. Rep. No. 96–422, 96th

Cong., 1st Sess. 25 (1979). Under the former statute, Members of Congress were also prohibited from receiving contributions from Federal employees, including their staff, even when no solicitation of the contribution was shown. See Brehm

v. United States, 196 F.2d 769, 770 (D.C. Cir.), cert. denied, 344 U.S. 838 (1952) (upholding the conviction of a Member of Congress for receiving campaign contributions from staff even without specific finding of solicitation or shakedown). 395 18 U.S.C. § 607. 396 18 U.S.C. § 603. 397 See 113 Cong. Rec. 25703 (Sept. 11, 1973). 398 H. Rep. No. 96–422, supra note 391, at 25. 399 125 Cong. Rec. 36754 (Dec. 18, 1979). 400 See 6 Clarence Cannon, Cannon’s Precedents of the House of Representatives § 401, at 571–573 (1935).

receive, disburse, or hold the contributions, and should not be a host of the event, but may be

involved in the planning of the fundraiser. 392

Political Contributions From Other Federal Employees

The Criminal Code specifically prohibits Members of Congress, candidates for Congress, and

federal employees from soliciting political contributions for federal elections from Federal Government employees, including employees of the Senate. 393 Unlike the statute prior to its 1980 amendment, the current provision prohibits only the solicitation of political contributions from federal

employees and does not prohibit the receipt of such contributions. 394 As discussed above, however, criminal law prohibits both the solicitation and receipt of contributions in any building where

federal employees work, including Senate office buildings and Members’ district offices, 395 and

prohibits employees from contributing to their employing authority. 396

The statute (at 18 U.S.C. § 602) prohibits the ‘‘knowing’’ solicitation of political contributions

from any other federal employee or officer. Inadvertent solicitations of federal employees, therefore, such as when part of a general fundraising campaign aimed at the public at large, were not

intended to be violations of this provision or its predecessor. 397 As stated in the House Report

on the Federal Election Campaign Act Amendments revising section 602:

In order for a solicitation to be a violation of this section, it must be actually known

that the person who is being solicited is a federal employee. Merely mailing to a list [which]

will no doubt contain names of federal employees is not a violation of this section. 398

Since the statute aims to protect employees who, because of their employment and position,

may be subject to coercion or ‘‘political assessment,’’ section 602 ‘‘does not apply to solicitation

of Members of Congress.’’ 399 This interpretation is consistent with the construction of the predecessor statute to 18 U.S.C. § 602. 400

QUICK REFERENCE TO FREQUENTLY ASKED CAMPAIGN-RELATED

QUESTIONS

The Committee is often asked about the application of campaign laws and Senate rules to

the following situations:

•Unsolicited campaign contributions in the mail—By law, an unsolicited campaign contribution

may be received within a congressional office but must be transferred within seven days of receipt

to the appropriate campaign organization (18 U.S.C. § 607). For the purposes of transferring any

such unsolicited contributions received in the mail, a Senate office may keep handy an envelope

(or envelopes) addressed to the campaign; the envelope and any necessary postage should be paid

for by the campaign. The Committee recommends that the political fund designee (PFD) should

be the Senate employee assigned to handle the collection and transfer of any unsolicited checks,

although, if circumstances (such as the PFD’s absence) require it, the PFD may delegate these

150 SENATE ETHICS MANUAL

duties to another responsible employee of the Member’s office, provided the Member approves

of this delegation. [Note well that the seven day provision of 18 U.S.C. § 607 applies to unsolicited contributions only; it does not authorize solicitation from a federal (including congressional)

office nor does it permit receipt of contributions in a federal office where the contributions have

been solicited in a manner which directs the contributor to return contributions to a federal office.]

•Unsolicited campaign contributions delivered in person to Senate facilities—The seven day

transferral provision of 18 U.S.C. § 607 (see above) also applies to unsolicited contributions delivered in person to the Senate: an unsolicited contribution check delivered in person to a Senator’s

office may be given to the PFD directly, or placed by the receiving employee in the PFD’s inbox, for timely transfer to the appropriate campaign office; alternatively, a pre-addressed, prestamped campaign envelope (paid for by the campaign) may be given to the would-be contributor

for his or her later use in forwarding the check to the campaign. Of course, as discussed above,

campaign contributions may not be solicited from, or for delivery to, a federal office.

While unsolicited contributions may be delivered in person to a Senate office, special care

should be exercised regarding such contributions. Often the individual tendering the contribution

in the Senate office also has official business to conduct in the office. When this is the case, to

avoid the appearance of any connection between official Senate activities and the receipt of campaign contributions, it is advisable that the office not accept the contribution and emphasize that

the Senate office is not connected with the campaign and that the provision of Senate services

can have no connection with any campaign contribution. Similarly, contribution checks received

in Senate office mail, even if unsolicited, should not be accepted if there is an indication of a

connection between the contribution and official business.

•Status of political fund designees in Senate offices—Rule 41.1 permits political fund designees

(PFD’s) to solicit and otherwise handle federal campaign contributions for a political campaign

committee controlled by a Member or group of Members. This campaign activity must be done

on the PFD’s own time, away from Senate facilities, and without using any Senate equipment or

supplies. The status of PFD does not give the staffer license to perform campaign activities,

whether or not they involve fundraising, in Senate facilities or on Senate time, nor may a PFD

make an advance to the campaign.

•Constituent official correspondence misdirected to the campaign, and campaign correspondence

misdirected to the Senate office—A Member’s principal campaign committee often is not equipped

to respond to written inquiries concerning legislative/representational matters. In such cases, the

campaign may forward the name, address, and nature of the official question to the Senate office

for response. Pursuant to Rule 40.5, the names and addresses may be added to the Senate office’s

mailing list so long as the list does not identify the individuals as campaign contributors, workers

or members of a political party and also does not contain any other partisan information. Similarly,

if the Senate office receives an inquiry that refers to a campaign matter, the office may forward

the name and address and nature of the inquiry to the campaign for response.

•Telephone inquiries on campaign topics—The receptionist in a Senate office may inform callers

who seek campaign information or who express a desire to make a campaign contribution to direct

their inquiries to the Member’s campaign committee, and also may give the caller the address and

telephone number of the campaign. The Senate press secretary may respond to unsolicited telephone inquiries, even where the caller asks questions related to a Member’s political campaign,

if such campaign questions are incidental to official questions (Interpretative Ruling 263). However, a Senate office should not function as the campaign press shop or otherwise engage in

proactive campaign activity.

•Use of official resources to assist campaign organization—Senate space, equipment, staff time,

and resources generally should not be used to assist campaign organizations. Certain de minimis

overlap between the official office and the campaign inevitably may occur and is permissible; such

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de minimis overlap includes scheduling assistance between offices and, as noted above, press response to ‘‘official’’ inquiries that may also include inquiries about campaign matters. Also, the

campaign may be treated in the same manner that the Senate office would treat any other outside

organization on a non-partisan basis. Thus, a Senate office may make available with officially related funds a copy of the Member’s floor speech to the campaign committee at its request so long

as the Senate office would provide the speech to any other organization or individual who asks,

without regard to political affiliation. Similarly, the office may make available with officially related funds information about the Senator’s legislative accomplishments to the campaign committee

at its request, if the office would do the same for anyone who asks for it. Conversely, however,

the Senate office should not provide press clips about the Senator that were collected by the office

to the campaign because Senate offices do not routinely provide clipping services to anyone who

asks for them.

•Unsolicited e-mail which asks a campaign-related question— As in the case of unsolicited telephone calls concerning campaign matters, a Senate office that receives an unsolicited e-mail inquiry on a campaign-related question may inform the sender that the communication was addressed

to the Senate office, which is not related to the Senator’s campaign, and that, if the sender wishes,

the campaign may be contacted at its e-mail address, mailing address, or telephone number. Alternatively, the message may be treated as misdirected mail and simply forwarded to the campaign

(in many instances this may involve less involvement of Senate time or facilities than providing

the correct address, etc.).

•Great Seal, Senate Seal, on campaign documents—The Seal of the U.S. Senate is in the custody

of the Secretary of the Senate and generally is used only to authenticate official Senate documents

(an alternative, non-official seal has been authorized for use by Senate offices and on items sold

in the Senate gift shop). Both the Senate Seal and the Great Seal of the United States (depicting

an eagle clutching items in its talons) are protected by 18 U.S.C. 713, a criminal statute. That

provision is intended to restrict the knowing display of the Senate Seal or the Great Seal or any

facsimile thereof in any manner reasonably calculated to convey a false impression of sponsorship

or approval by the Government of the United States. Thus, commercial use, personal use, or campaign use of these seals would be improper. (See section on the Senate and Great Seal in Chapter

7 and 18 U.S.C. 713 in Appendix D). If a Member’s campaign wants to use a symbol of government on its campaign stationery, a depiction of the Capitol dome would be appropriate.

•Purchase of campaign lists for official use—The Committee has previously ruled that a mailing

list that is acquired from a private source (including a campaign committee or political organization) must be paid for at fair market value. Senate Rule 40.5 and I.R. 44 require that Senate computers not be used to store, maintain, or otherwise process any list of names and addresses that

identifies the listed individuals as campaign workers or contributors, as members of a political

party, or by any other partisan political designation. Thus, a Senate office may use official funds

to purchase mailing lists from outside sources, including the Member’s campaign committee, as

long as fair market value is paid for the mailing list, the list is stripped of any partisan or contributor information before entry into the Member’s office mailing list, and the list is incorporated

into the office list such that it cannot be separately recalled. An office should not purchase solely

partisan-based lists (thus creating an office database of mainly partisan information); purchased

lists should include those derived from non-partisan sources.

•Campaign website and the Senate website — The Rules Committee policy on Senate Internet

services prohibits any linkage on the Member’s official website to his or her (or any) campaign

web site. The Ethics Committee has advised that a Member’s principal campaign committee

website should not include a link to his or her Senate office website.

GENERAL CAMPAIGN FINANCE REQUIREMENTS

152 SENATE ETHICS MANUAL

401 2 U.S.C. § 432(e)(1); 11 C.F.R. § 101.1. Regardless of whether action is not taken to qualify under state law,

an individual is deemed a candidate under the FECA once $5,000 has been raised or spent towards an election. 2 U.S.C.

§ 431(2); 11 C.F.R. § 100.3. 402 2 U.S.C. § 433; 11 C.F.R. § 102.1. 403 2 U.S.C. § 432(a)-(d); 11 C.F.R. Part 102. 404 2 U.S.C. § 432(h)(1); 11 C.F.R. § 103.2. 405 2 U.S.C. § 434; 11 C.F.R. Parts 104–105. 406 2 U.S.C. § 439; 11 C.F.R. Part 108. 407 2 U.S.C. § 441b; 11 C.F.R. Part 114. 408 2 U.S.C. § 441c; 11 C.F.R. Part 115. 409 2 U.S.C. §§ 441b(b)(3), 441c(b); 11 C.F.R. §§ 114.5(a), 115.3. 410 2 U.S.C. § 441a(a)(2), (4); 11 C.F.R. § 110.2 411 2 U.S.C. § 441a(a)(1)(A); 11 C.F.R. § 110.1. 412 2 U.S.C. § 438(a)(6).

Under the Federal Election Campaign Act (FECA), each candidate for federal office, including

any Member of the Senate who is running for reelection, must designate a principal campaign

committee. 401 This committee, like all other political committees, must register with the FEC402

and be organized and keep records according to Federal campaign laws. 403 Each candidate must

also designate one or more national or state banks or similar, government-insured financial institutions, as a campaign depository. 404

The campaign committees of candidates for the Senate must file periodic, detailed reports, on

forms provided by the FEC, with the Secretary of the Senate as custodian for the FEC, showing

the receipt of political contributions and the making of political expenditures. 405 Each committee

must also file copies of such statements with the Secretary of State, or similar state officer, of

the relevant state. 406

Restrictions on Receipt of Contributions

Federal campaign laws prohibit Members of and candidates for Senate from receiving political

contributions from the treasury funds of a corporation, labor organization, or national bank. 407 Additionally, contributions may not be accepted from federal government contractors. 408 Corporations, labor organizations, membership organizations, or cooperatives may, however, establish separate segregated funds, often referred to as political action committees, or ‘‘PACs.’’ Even a government contractor may set up a PAC. PACs collect voluntary contributions from which they may

then make their own political expenditures and contributions. PACs may not solicit funds by

threats of job discrimination or reprisals or by requiring dues or assessments as a condition of

employment. 409 Members and candidates for the Senate may receive contributions from PACs,

up to the contribution limits specified by federal law.

Federal law restricts the amount of political contributions that may be made by, and accepted

from, individuals and political committees. A ‘‘Multi-candidate’’ political committee—which is

registered for at least 6 months with the FEC, receives contributions from more than 50 people,

and contributes to at least 5 federal candidates—may contribute up to $5,000 to a candidate for

every primary, runoff, or general election in which the candidate’s name appears on the ballot

(and may contribute up to $5,000 to other political committees during a calendar year and up to

$15,000 to national political party committees). 410 The PACs of corporations and labor unions

are often multi-candidate committees which may make contributions of up to $5,000 per candidate

per election (primary and general). If a political committee is not a qualified multi-candidate committee, it may make contributions of up to only $2,000 per election to a candidate. 411 The FEC

maintains a list, updated monthly, of committees that have qualified as multi-candidate. 412

An individual may contribute up to $2,000 to any candidate for each primary, runoff, or general election. An individual may contribute no more than $5,000 per year to any other political

committee; $25,000 per year to a national political party committee; contributions aggregating

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413 2 U.S.C. § 441a(a)(1), (3); 11 C.F.R. §§ 110.1, 110.5. 414 2 U.S.C. § 441e; 11 C.F.R. § 110.4(a). 415 15 U.S.C. § 79l(h). 416 2 U.S.C. § 441f; 11 C.F.R. § 110.4(b). 417 2 U.S.C. § 441g; 11 C.F.R. § 110.4(c). 418 See, e.g., 2 U.S.C. §§ 58 and 59. 419 See Interpretative Ruling No. 154 (June 22, 1978). 420 See Interpretative Ruling No. 24 (May 26, 1977). 421 See Interpretative Ruling No. 175 (Sept. 21, 1978). 422 See Interpretative Ruling No. 351 (May 7, 1982). 423 See Interpretative Ruling No. 318 (May 9, 1980).

more than $37,500, in the case of contributions to candidates and the authorized committees of

candidates; and $57,500, in the case of any other contributions, of which no more than $37,500

may be attributable to contributions to political committees which are not political committees of

national political parties. 413

Political contributions may not be made by foreign nationals not lawfully admitted to the

United States for permanent residence, 414 by public utility holding companies 415 and by one person in the name of another. 416 Cash contributions of over $100 are also prohibited. 417

CAMPAIGN USE OF OFFICIAL RESOURCES

Official resources may only be used for official purposes. This principle derives in large part

from 31 U.S.C. § 1301(a), providing that official funds are to be used only for the purposes for

which appropriated, as well as from statutory authorizations for allowances. 418 It is thus inappropriate to use any official resources to conduct campaign or political activities.

The Committee on Ethics has long acknowledged that there may be some inadvertent and

minimal overlap between the conduct of official Senate duties and campaign activities. However,

a Senator has the responsibility to ensure that such an overlap is of a de minimis nature and that

any campaign responsibilities do not conflict with or detract from official staff duties. 419 Similarly,

campaign materials that are needed for reference purposes or public disclosure and that do not

require substantial storage space may be kept in Senate facilities. 420

A Senator may sometimes be asked to donate an item, such as a book prepared by the Government (e.g., a book on the Capitol or an Agricultural Yearbook), for auction. The Committee

has ruled that the donation of public property for auction by political or for-profit groups could

reflect discredit upon the Senate. 421 However, if the item is of nominal value and was not intentionally procured with Senate funds for that purpose, or is a book printed at Government expense

and allotted to a Senator for public distribution, the Senator may donate the item for auction to

a non-profit organization that will be using the auction proceeds for a non-profit, non-political purpose. 422

Mailing Lists

Mailing lists procured, compiled, maintained, or produced with appropriated funds may be

used only for official purposes. Official mailing lists may not be shared with a Member’s campaign committee or a national political committee or otherwise be used for any political or personal purposes. 423 Under Senate Rule 40.5, Senate computers may not be used to store, maintain,

or otherwise process any list of names and addresses that identifies the listed individuals as campaign workers or contributors, as members of a political party, or by any other partisan political

designation. Senate facilities may not be used to produce computer printouts except as authorized

by the Committee on Rules and Administration. Moreover, if mailing labels, computer tapes, or

discs for mass mailings are produced with Senate computers, the mailings may only be sent out

from facilities maintained and operated by the Senate or under contract to the Senate. A mailing

list may be purchased at fair market value with official funds from a private source (including

154 SENATE ETHICS MANUAL

424 See Interpretative Ruling No. 421 (Oct. 16, 1987); Interpretative Ruling No. 280 (Sept. 10, 1979). 425 See Interpretative Ruling No. 318 (May 9, 1980). 426 See also Interpretative Ruling No. 206 (Dec. 11, 1978) (donation of a retiring Senator’s excess campaign funds

to a tax-exempt state university for a scholarship program to be named for the Senator was a permissible charitable

donation and not a conversion to personal use). 427 2 U.S.C. § 439a. See also FEC Advisory Op. No. 1980–113, 1 Fed. Election Camp. Fin. Guide ¶ 5562, at

10,692 (Nov. 7, 1980). 428 At the time, this prohibition exempted those who were Members of Congress on January 8, 1980, the date the

amendment became effective. However, in the Ethics Reform Act of 1989, Congress repealed this ‘‘grandfather’’ provision, such that all Members of the 103d and subsequent Congresses have been barred from using campaign funds for

any personal purposes. The FEC has issued detailed regulations clarifying ‘‘personal use’’ at 11 CFR Part 113 and those

regulations should be consulted for guidance. 429Rev. Proc. 68–19, 1968–1 C.B. 810; Rev. Rul. 74–23, 1974–1 C.B. 17. 430 See Interpretative Ruling No. 405 (Dec. 18, 1985). 431The use of campaign funds for officially related purposes, pursuant to Senate Rule 38 and Interpretative Ruling

No. 444, is discussed in Chapter 4.

a campaign committee or political organization), so long as the incorporation of the list complies

with Senate Rule 40.5, that is, the list bears no identification of individuals as campaign workers,

contributors, or as members of a political party and does not contain any other partisan information. A mailing list that is so acquired from a private source and updated using Senate facilities

may not then be returned to the private organization in its enhanced form. 424 For further information on official mailing lists, see discussion in Chapter 7 under the headings ‘‘Nonfrankable Mail,’’

item number 9, and subparagraph D, ‘‘Mailing Lists and the Senate Computer Facilities.’’

Example 12. National Party X sends out a newsletter on government issues of interest

to senior citizens. The editor of this newsletter asks Senator P for the names and addresses of the seniors in her state so that they might get the benefit of receiving the information in the newsletter. P may not provide the party with a copy of any list maintained

on her Senate computer. She may share with the party any relevant list maintained by

her campaign committee. 425

USE OF CAMPAIGN FUNDS

By statute, federal campaign funds may be used as follows: to defray any campaign expenditure allowed under the federal election laws; to defray any ordinary and necessary expenses incurred in connection with duties as a holder of federal office; to donate to charities described in

§ 170(c) of the Internal Revenue Code; 426 to contribute to any national, state, or local committee

of a political party; or for ‘‘any other lawful purpose.’’ 427 This statute was amended in the 96th

Congress to prevent all candidates, whether incumbent or not, from using excess campaign funds

for personal purposes. 428 Diversion of campaign funds to personal use is not only illegal under

federal campaign law, but such diversion could also transform the funds into taxable personal income to the individual. 429

No Personal Use

Like the statute, Senate Rule 38.2 prohibits all Members and former Members from converting

federal campaign funds to personal use. By both law and rule, ‘‘personal use’’ is defined to exclude the reimbursement of expenses incurred by a Member in connection with official duties.

However, a Member may not borrow from his or her own principal campaign committee. 430

Example 13. Senator Q takes his family on a Caribbean vacation to rest up after a particularly grueling but successful campaign. Q may not pay for the vacation with campaign funds.

Example 14. Senator R and her spouse go on an officially related trip. Under Senate

rules, R may pay their travel expenses with campaign funds. 431

The Senate’s antipathy to the conversion of political funds to personal use was established

even before the enactment of the statute or the rule. In 1967, the Select Committee on Standards

and Conduct investigated and the Senate censured a Member for having exercised, over a five

CHAPTER 6 155

432REPORT OF THE SELECT COMMITTEE ON STANDARDS AND CONDUCT, UNITED STATES SENATE, ON THE INVESTIGATION OF SENATOR THOMAS J. DODD OF CONNECTICUT, TO ACCOMPANY S. RES. 112, S. REP. NO. 193, 90th Cong.,

1st Sess. 26–27 (1967). The Senator was also found to have requested and accepted reimbursements from both the Senate and private organizations for the same travel. 433 INVESTIGATION OF SENATOR DAVID F. DURENBERGER, REPORT OF THE SELECT COMMITTEE ON ETHICS AND

THE REPORT OF SPECIAL COUNSEL ON S. RES. 311, S. REP. NO. 101–382, 101st Cong., 2d Sess. (1990). 434 39 U.S.C. § 3210(f); Senate Rule 40.2. 435 See FEC Advisory Op. 1986–9, 2 Fed. Election Camp. Fin. Guide (CCH) ¶ 5851, at 11267 (Apr. 22, 1989);

FEC Advisory Op. 1977–39, 1 id. ¶ 5264, at 10,211 (Aug. 26, 1977).

year period, ‘‘the influence and power of his office as a United States Senator . . . to obtain,

and use for his personal benefit, funds from the public through political testimonials and a political

campaign . . .’’ This conduct, while not then illegal, was deemed ‘‘contrary to accepted morals

. . . [and] the public trust expected of a Senator, and tends to bring the Senate into dishonor and

disrepute.’’ 432 More recently, a Member was denounced by the Senate for a number of breaches,

including violating Rule 38.2 by transferring a check made out to his campaign committee to the

book publisher which was paying the Senator for promotional appearances. 433

No Franked Documents

Federal law and Senate rule provide that only appropriated funds, and not private contributions, may be used to pay the cost of preparing, printing, and distributing mass mailings under

the frank. 434

Legal Defense Funds

The Committee on Ethics has determined that Members may use campaign funds to defend

legal actions arising out of their campaign, election, or the performance of their official duties.

These funds remain campaign contributions, however, subject to all the restrictions and prohibitions of other campaign contributions, including the reporting requirements, contribution limits, and

prohibitions on corporate, labor union, and government contractor contributions. Such treatment

accords with rulings of the Federal Election Commission. 435 An individual using campaign funds

to defend such legal actions should obtain the approval of the Ethics Committee. (See discussion

of Legal Expenses in Chapter 4.)

In addition (or instead), a Member, officer, or employee may choose to set up a ‘‘legal expense trust fund’’ independent of any campaign fund. (Officers and employees obviously do not

have the option of using campaign funds and would have to resort to separate legal defense funds

for actions arising out of their official duties.) Such legal expense funds, however, must be approved by the Committee and are subject to the Legal Expense Trust Fund Regulations, promulgated by this Committee under Senate Rules 35 and 37, and discussed in detail in Chapter 4.

FEDERAL CRIMINAL LAW:

FALSE CLAIMS, FRAUD AND THEFT

In addition to the congressional ethical standards and guidelines discussed, legal implications

may arise for Members and staff if individuals, compensated from public funds, perform no congressional duties or only a nominal percentage of official duties for such compensation, but rather

mainly provide campaign services to the Member. Since a Member makes a claim to the United

States Government for the staffer’s salary, and since such salary is intended as compensation for

assisting the Member in his ‘‘official’’ duties, then using that individual for other than the official

purposes contemplated might involve a false claim, a false statement, or a fraud upon the government.

There have been several civil suits initiated by private citizens under the False Claims Act

(31 U.S.C. §§ 3729, 3730) against Members of Congress for compensating individuals from the

clerk-hire or other staff allowances when those individuals allegedly did not perform any, or did

156 SENATE ETHICS MANUAL

436 United States ex rel. Thompson v. Hays, Civ. Nos. 76–1068, 1132 and 1140; United States ex rel. MartinTrigona v. Daley, Civ. No. 1164 (D.D.C. 1976); United States ex rel. Joseph v. Cannon, 642 F.2d 1373 (D.C. Cir.

1981), cert. denied, 455 U.S. 999 (1982); but see United States ex rel. Hollander v. Clay, 420 Supp. 853 (D.D.C. 1976),

concerning appropriations for transportation. 437 642 F.2d 1373 (D.C. Cir. 1981), cert. denied, 455 U.S. 999 (1982). 438 United States v. Diggs, 613 F.2d 988 (D.C. Cir. 1979), cert. denied, 446 U.S. 982 (1980). 439 Id. at 1002. 440 Hubbard v. United States, 115 S. Ct. 1754 (1995). 441 630 F.2d 1270 (8th Cir. 1980). 442 Id. at 1276. 443 Id. at 1278.

not mainly perform, official congressional duties for such compensation. These civil suits, however, have generally been dismissed on jurisdictional or procedural grounds without a trial on the

merits of the facts alleged. 436

In United States ex rel. Joseph v. Cannon, 437 for example, a three judge panel of the United

States Court of Appeals for the District of Columbia dismissed as a non-justiciable ‘‘political question’’ a civil suit under the False Claims Act initiated by a private citizen against a Member of

Congress for making claims for a staffer’s official salary when that staffer allegedly worked extensively and exclusively on the Member’s reelection campaign for a period of time while continuing

to receive a salary from appropriated funds. In an appeal of a criminal case, 438 however (United

States v. Diggs), the United States Court of Appeals for the District of Columbia upheld the conviction of a Member of the House for false statements (18 U.S.C. § 1001) and mail fraud (18

U.S.C. § 1341) where individuals were being compensated from public funds, but were performing

only nominal official congressional duties. The Court of Appeals found that there was thus sufficient evidence for a jury to conclude that the employees were paid from the clerk hire allowance

‘‘with the intention of compensating them for services rendered to the [defendant’s private business concern] or the defendant.’’ 439 Rejecting the argument that ‘‘it was a matter of [the Member’s] discretion to fix their duties and salaries as congressional employees,’’ the Court upheld

the determination that ‘‘defendant’s representations to the House Office of Finance that [the employees] were bona fide congressional employees were fraudulent and material in violation of 18

U.S.C. § 1001.’’

Although in a 1995 decision, 440 the Supreme Court held that section 1001 did not apply to

false or fraudulent writings or documents submitted to the legislative branch, the 104th Congress

subsequently passed the False Statements Penalty Restoration Act, which now makes it clear that

18 U.S.C. 1001 applies to all three branches of the government, including Congress. Thus, individuals who knowingly and willfully make a false statement in financial disclosure or other reports

required to be filed with Congress, or who knowingly and willfully make a false statement in connection with a congressional investigation, inquiry, or review, are once again subject to criminal

penalties under this statute.

United States v. Pintar, 441 did not involve Members of Congress and congressional employees, but did involve a fact situation where federal monies in a federal program were being used

to pay persons for political campaign activities. In that case the court upheld a charge of a conspiracy to defraud the United States (18 U.S.C. § 371) where there was ‘‘strong evidence that

the Pintars used [their authority] to direct employees whose salaries were funded by federal grants

to perform political work during office hours,’’ 442 and that such concerted activities constituted

a ‘‘scheme to impair, obstruct, defeat or interfere with lawful governmental functions.’’ 443

In a criminal action specifically involving campaign activities by congressional employees

compensated from clerk-hire funds, the Department of Justice in 1978 obtained a criminal indictment against a former Member of the House of Representatives, charging that the former Member

while in Congress had defrauded the United States by placing 11 persons on his congressional

payroll to pay them for operating and staffing various campaign headquarters in the former MemVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00170 Fmt 5222 Sfmt 5222 SMANUAL.006 ETHICS1 PsN: ETHICS1
CHAPTER 6 157

444 United States v. Clark, Crim. No. 78–207 (W.D. Pa. 1978). 445 Grand Jury indictment, at 2. 446 Grand Jury indictment, at 2–3. 447 United States v. Bresnahan, Crim. No. 93–0409 (D.D.C. 1993).

ber’s reelection campaign. 444 The indictment specifically charged violations of the mail fraud statute (18 U.S.C. § 1341), among other violations, for using the mails to send payroll checks in executing ‘‘a scheme and artifice to defraud the United States of America, and to obtain money and

property by means of false and fraudulent pretenses, representations and promises.’’ 445 The

‘‘scheme,’’ as charged in the indictment, was that the defendant ‘‘would prepare and submit . . .

clerk-hire allowance and payroll authorization forms to the Office of Finance of the House of Representatives which falsely represented that [certain named individuals] were bona fide employees

of the defendant’s congressional staff and that they were performing the type of services which

entitled them to salaries stated in the clerk-hire forms,’’ while willfully concealing that those

named individuals were in fact placed on the House payroll ‘‘in order to pay them for their work

in maintaining, staffing, and operating various campaign headquarters opened for the purpose of

reelecting the defendant to Congress.’’ 446 The defendant/former Member pleaded guilty to mail

fraud and income tax evasion, and was sentenced to two years in prison and fined $11,000.

More recently, a congressional staff employee has also pleaded guilty in United States District

Court to a criminal information 447 concerning the receipt of a government salary and expenses

for performing campaign duties in a congressional campaign. The criminal information charged

that the defendant, an Administrative Assistant to a Member of Congress, ‘‘traveled and caused

other employees’’ of the Congressman to travel across the country ‘‘to work on the primary and

general election campaign of a Congressional candidate.’’ During the time they worked on the

congressional campaign, the employees ‘‘claimed to be performing official business, [and] the

United States House of Representatives reimbursed the defendant and the other employees for per

diem expenses . . . [and they] also received money in the form of salary paid for the time that

they campaigned.’’ The congressional staffer pleaded guilty to 18 U.S.C. § 641, theft of government property, that is, the ‘‘salary and expenses paid to them by the United States House of Representatives.’’

LIST OF CAMPAIGN ACTIVITIES PROHIBITED BY STATUTE

The following is a brief list of specific statutory prohibitions relating to campaign activities

by Members and employees of the Senate.

A Member or employee of the Senate may not—

(1) promise to use support or influence to obtain federal employment for anyone in return

for a political contribution (18 U.S.C. § 211).

(2) deprive, attempt to deprive, or threaten to deprive anyone of employment or any other

benefit, provided for or made possible by an Act of Congress appropriating relief funds,

because of that person’s political affiliation (18 U.S.C. § 246).

(3) pay or offer to pay any person to vote or to withhold a vote or to vote for or against

any candidate in a federal election (18 U.S.C. § 597).

(4) solicit, accept, or receive an expenditure in consideration of a vote or the withholding

of a vote in a federal election (18 U.S.C. § 597).

(5) use any appropriation by Congress for work relief or for increasing employment, or

exercise any authority conferred by any appropriations act, for the purpose of interfering

with, restraining, or coercing any individual in the exercise of the right to vote (18

U.S.C. § 598).

(6) as a candidate, directly or indirectly promise to appoint any person to any public or

private position for the purpose of procuring support for that candidacy (18 U.S.C. §

599).

158 SENATE ETHICS MANUAL

(7) promise employment or any other benefit provided for or made possible by any Act

of Congress as a reward for political activity or support (18 U.S.C. § 600).

(8) cause or attempt to cause anyone to make a political contribution by denying or

threatening to deny any government employment or benefit provided for or made possible, in whole or in part, by any Act of Congress (18 U.S.C. § 601).

(9) solicit political contributions from any other federal employee or from any person

receiving salary or compensation for services from money derived from the United States

Treasury (18 U.S.C. § 602).

(10) (staffers only) make a political contribution to any Member of Congress who is

one’s employer or employing authority (18 U.S.C. § 603).

(11) solicit or receive political contributions from persons known to be entitled to or to

be receiving relief payments under any Act of Congress (18 U.S.C. § 604).

(12) furnish, disclose, or receive for political purposes the names of persons receiving

relief payments under any Act of Congress (18 U.S.C. § 605).

(13) intimidate any federal officer or employee to secure political contributions (18

U.S.C. § 606).

(14) solicit or receive political contributions in a federal building, other than unsolicited

contributions that are transferred to a political committee within seven days (18 U.S.C.

§ 607).

(15) knowingly accept a contribution in excess of limitations under federal law of $1,000

to a candidate from any person or $5,000 to a candidate from a multi-candidate political

committee (2 U.S.C. § 441a(a), (f)).

(16) receive any political contribution from the organizational or treasury funds of a national bank, corporation, or labor organization (2 U.S.C. § 441b(a)).

(17) knowingly solicit contributions from government contractors (2 U.S.C. § 441c(a)(2)).

(18) make an expenditure for any general public political advertising that anonymously

advocates the election or defeat of a clearly identified candidate (2 U.S.C. § 441d).

(19) solicit, accept, or receive a contribution from a foreign national (2 U.S.C. § 441e).

(20) knowingly accept a contribution made by one person in the name of another person

(2 U.S.C. § 441f).

(21) fraudulently misrepresent oneself as speaking or acting on behalf of a candidate (2

U.S.C. § 441h).

To the extent that an individual may make political contributions or expenditures as discussed

above, the individual may not—

(a) make cash contributions to any candidate which total more than $100 (2 U.S.C. §

441g);

(b) make contributions in excess of $2,000 per election to any candidate, $5,000 per calendar year to political committees, or $25,000 per calendar year to national party committees, or make contributions aggregating more than $37,500, in the case of contributions to candidates and the authorized committees of candidates; and $57,500, in the case

of any other contributions, of which no more than $37,500 may be attributable to contributions to political committees which are not political committees of national political

parties. (2 U.S.C. § 441a(a)).

(c) make a contribution in the name of another (2 U.S.C. § 441f).

(d) make independent expenditures in excess of $250 without filing a report with the

Federal Election Commission (2 U.S.C. § 434(c)(1)).

(159)

Chapter 7: USE OF THE FRANK, STATIONERY, AND SENATE

FACILITIES

Introduction ......................................................................................................................... 160

The Frank ............................................................................................................................ 160

Authorization to Use the Frank .................................................................................. 161

Loan of Frank Prohibited ............................................................................................ 162

General Standards of Frankability ............................................................................. 163

Frankable Mail ............................................................................................................. 163

Nonfrankable Mail ....................................................................................................... 165

Mass Mailings .............................................................................................................. 167

Senate Letterhead ............................................................................................................... 171

Use of the Great Seal and the Senate Seal ....................................................................... 172

Senate Facilities: Auction Items, Moratoria, and Internet .............................................. 172

160

448 39 U.S.C. § 3201.

449 39 U.S.C. § 3210(b)(1).

450 See 2 U.S.C. § 59e.

Chapter 7

USE OF THE FRANK, STATIONERY AND SENATE FACILITIES

Rule 40

INTRODUCTION

Created by statute, the franking privilege authorizes Members and certain officers to send official material through the domestic mail, as franked mail, without prepayment of postage. The

franking privilege is the personal responsibility of each Senator (or officer authorized to use the

frank) and the Senator bears the responsibility of ensuring that the use of the mailing frank by

employees in his or her office is consistent with the requirements established by statute, Senate

rules, Ethics Committee interpretative rulings, and regulations established by the Committee on

Rules and Administration. The following discussion details the various requirements for use of the

frank in Senate offices, and also addresses the use of Senate stationery, the letterhead, and Senate

facilities relative to mail activity.

THE FRANK

The term ‘‘frank’’ denotes the autograph or facsimile signature of a person authorized to transmit matter through the domestic mails without prepayment of postage. 448 Members of Congress

and certain officers are authorized to send, as franked mail, material relating to the official business, duties, and activities of their offices. 449 Use of the franking privilege is governed by Federal

law at 39 U.S.C. § 3210, et seq., (‘‘the Franking Statute’’).

The 1991 Legislative Branch Appropriations Act established an ‘‘official mail allowance’’

(franking allowance) for franked mail and mandated public disclosure of Members’ expenditures

under the frank and the contents of their mass mailings. 450 A Member’s franking allowance is

capped at the cost of a first class mailing to every address in the state. This amount is reduced,

or prorated, for each Member if the budgetary allocation to the franking allowance is not enough

to mail a letter to every address in the country (e.g. If it costs $33 million to mail a letter to

every address in the country, but only $11 million was appropriated by Congress toward the franking allowance, then each Member’s allowance would be prorated by two-thirds based on the reduction).

A Member’s franking allowance, for use in franked mailings other than mass mailings, is part

of the official office account. An office that has exceeded its franking allowance may supplement

that allowance with other funds from the official office account for franked mailings other than

mass mailings. A Member may also enhance his or her ability to use official office accounts for

official mail by purchasing stamps that are paid for with official funds. Mass mailings must be

done with the frank, but expenses for mass mailings must be paid with official office account

funds specially appropriated for that purpose (other than the franking allowance). These mass mailing funds are currently subject to a maximum of $50,000 in any fiscal year. (See, mass mailing

CHAPTER 7 161

451 SENATE SELECT COMMITTEE ON ETHICS, REGULATIONS GOVERNING THE USE OF THE MAILING

FRANK BY MEMBERS AND OFFICERS OF THE UNITED STATES SENATE, Regulations Governing Franked Mail

at 29 (Jan. 1995) (hereinafter Franking Regs.), and see Interpretative Ruling 249. 452 18 U.S.C. § 1719. 453 Franking Regs., ch. 4, para. 4. 454 2 U.S.C. § 502(a). 455 See generally Franking Regs. 456 Franking Regs., ch.1, para. 2. 457 Franking Regs., ch. 4, para. 2. 458 39 U.S.C. § 3210–11, 3218.

section below for further details on mass mailings; contact the Rules Committee for any questions

on franking or mass mailing allowances or any changes thereto).

The franking allowance may not be used for special mail services such as express mail, certified mail, registered mail, address corrections, postal insurance, and return receipt. 451 These services may be purchased, but only with official funds.

It is illegal to use a franked envelope to avoid paying postage on a private letter or package.

Criminal fines may be levied for such abuse. 452 The Committee will view as an act of good faith

an offer by a Member to pay restitution to the Treasury for the cost of improper use of the franking privilege. 453

Franking allocations and appropriations are governed by the Rules Committee; use of the

frank is regulated by the Ethics Committee. The Ethics Committee provides guidance and gives

advisory opinions on the frankability of mail matter. 454 The Ethics Committee also issues regulations and is authorized to hear complaints of abuses of the use of the frank. ‘‘Inside mail,’’ without

use of the U.S. Postal Service is not subject to the franking statute.

The Committee’s regulations are available in booklet form and should be consulted by Senate

employees involved in mailing material under the frank. In addition to providing guidelines and

requirements for franked mail, the booklet includes examples of permissible and impermissible

items or mailings. 455

The franked mail privilege is the personal responsibility of each Senator. 456 While individual

employees within the office of a Senator have the day-to-day use of the mailing frank, as authorized by the Franking Statute, and as directed by the Senator, it remains the responsibility of the

Senator to oversee the use of the franked mail privilege by his or her office and to ensure that

the use of the privilege is consistent with the requirements established by the Franking Statute,

the Committee’s Franking Regulations, the Standing Rules of the Senate, Interpretative Rulings

of the Committee, and Regulations established by the Committee on Rules and Administration.

The Committee has emphasized that Members remain ultimately responsible for their staffs’

decisions on using the frank:

The actual determination of whether or not to send a particular piece of mail under a

Member’s frank probably will be made by his staff who prepare his mail for delivery.

An improper use of the frank by an assistant, ranging from an inadvertent mistake on

a single letter to a willful abuse of the frank in connection with a mass mailing, will

be imputed to the employing Senator under most circumstances. To help avoid these violations of the franking law, Senators should assure that their assistants know what kinds

of mail are frankable by providing for the training and supervision of these employees

and their familiarization with these regulations. 457

All franked mail prepared in Washington, D. C. Senate offices must be mailed in Senate facilities.

Authorization to Use the Frank

The following are those authorized to use the mailing frank: 458

162 SENATE ETHICS MANUAL

459 39 U.S.C. § 3210(b)(3). 460 39 U.S.C. § 3218 and Interpretative Ruling No. 377 (Oct. 31, 1983). If there is no surviving spouse, then a

member of the immediate family of the Member may be designated by the Secretary of the Senate. 461 Franking Regs., ch. 1, para. 7. 462 Id. 463 39 U.S.C. § 3215. 464 Franking Regs., ch. 1, para. 4. 465 Id. and Interpretative Ruling No. 66. (Sept. 26, 1977) 466 Franking Regs., ch. 1, para. 4, and ch. 2, para. 18. 467 Franking Regs., ch.1, para. 4. The sending back of a return-addressed and franked piece of mail to a Senator

or officer of the Senate is allowed only in the following circumstances: a Senator may provide a franked envelope to

a radio or television station to facilitate the return of a frankable radio or television tape; the Secretary of the Senate

may enclose a franked self-addressed envelope in a letter to State officials requesting the return of certain forms and

reports required to be filed under Federal election laws; a Senate committee which maintains a mailing list for its official

reports may use a franked return-address postal card for an addressee to indicate its continued desire to receive reports;

a Senator may provide a franked, pre-addressed mailer or envelope for the return to the Senator of responses to a qualified survey questionnaire (only for statistically valid opinion surveys sent as a mass mailing and certified by the Rules

1. a Senator, until the expiration of a 90-day period immediately following the date on which he

or she leaves office, in order to close the official business of the Senate office; 459

2. a Senator-elect;

3. the Vice President;

4. the Secretary of the Senate;

5. the Sergeant at Arms of the Senate;

6. Legislative Counsel of the Senate;

7. Senate Legal Counsel;

8. any authorized person in case of a vacancy in the offices of 4, 5, 6, or 7 above; and

9. the surviving spouse of a Senator who died during his or her term of office, for 180 days after

the Senator’s death (for nonpolitical correspondence relating to the death of the Member). 460

Material relating to the official business of any Senate committee, or of any joint committee

whose chair is a Senator, may be sent under the frank of the chairman. Such mail ‘‘must relate

exclusively to the official business of the committee and may not focus unduly upon the chairman

or any other Member of the Committee.’’ 461 The Republican Conference and the Democratic Caucus may use the frank, but ‘‘mail matter must relate to the official legislative and related activities

of the Congress and may not be partisan or political.’’ 462

Loan of Frank Prohibited

The franking law specifically prohibits the loaning of a Member’s frank to any group, organization, or person other than the official committees noted above and the Republican Conference

or Democratic Caucus of the Senate. 463 The use of the frank by charitable organizations, political

action committees, trade organizations, bar committees, state societies and political parties is also

prohibited. 464 Thus, for example, the enclosure of a brochure from a non-Senate organization in

an otherwise frankable mailing is almost always a loan of the frank to the organization and renders

the entire mailing unfrankable. Also, discussion of a Member’s charity activities in a letter renders

the letter unfrankable as a loan of the frank to the charity. The enclosure of a newspaper clipping

or article in a frankable mailing is not a loan of the frank, and may be mailed under the frank

so long as the content of the article or clip meets the franking requirements.

In addition, ‘‘because of the potential for abuse, a non-Senate organization is not permitted

to stuff or mail franked envelopes, or to prepare and mail self-mailers.’’ 465 The use of the frank

for any solicitation of funds for any purpose is likewise prohibited. 466 The franking regulations

also ban providing franked envelopes to members of the public for return mail to a Member or

committee of Congress, with limited exceptions. 467

CHAPTER 7 163

Committee); and where no mass mailing is involved, a Senator may provide a franked envelope bearing a return-address

to the Senator’s office, specifying the material to be returned to the Senator (for example, a constituent requests assistance with a social security matter and the Senator in turn asks the constituent to complete and return an authorization

form allowing the Senator access to certain records). 468 39 U.S.C. § 3210(a)(2). 469 Franking Regs., ch. 2, para. 3, and see Interpretive Ruling No. 117 (Apr. 10, 1978). 470 Franking Regs., ch. 2, para. 5.

General Standards of Frankability

The franking privilege is available only for the transmittal of material that concerns ‘‘the official business, activities, and duties of the Congress,’’ entailing all matters that ‘‘directly or indirectly pertain to the legislative process or to any congressional representative functions generally.’’ 468 Material that is purely personal or political may not be sent under the frank. No material that is not independently frankable may be inserted into a franked envelope. Thus, each piece

of mail to be sent under the frank must be reviewed for frankability, including direct response

letters and attachments to correspondence. The franking statutes list the following examples of

frankable and nonfrankable mail, respectively.

Frankable Mail

1. Mail to any person and to any government agency relating to matters

and programs of public concern and Congressional actions (39 U.S.C. §

3210(a)(3)(A)).

The franking statue authorizes the franking of mail matter ‘‘regarding programs, decisions, and other related matters of public concern or public service, including any matter relating

to actions of a past or current Congress.’’ Thus, a Member may use the frank to mail materials

that ‘‘generally relate to legislative actions or the official business of a Senator’s office and which

relate principally to the Federal government.’’ A Senator ‘‘may communicate with State and local

officials on matters of State and local concern, and with constituents who have inquired or communicated on State or local matters.’’ Mass mailings, however, should relate to federal matters and

the impact of federal policies on states, communities, and citizens. 469

2. Newsletters and press releases dealing with the impact of laws on governments and the public, official actions of Members, discussions of proposed

or pending legislation, and positions of Members on, and arguments for and

against such matters (39 U.S.C. § 3210(a)(3)(B)).

For details of the regulations concerning the contents and layout of newsletters, see

the section on mass mailing below.

3. Questionnaires seeking public opinion (39 U.S.C. § 3210(a)(3)(C)).

Senators may use the frank to mail questionnaires ‘‘seeking public opinion on any law, pending or proposed legislation, public issue, or subject.’’ Under guidelines established by the Rules

Committee a ‘‘mass mailing’’ may include franked response cards or forms only if the questionnaire is a statistically valid opinion survey. Any mass mailing containing a questionnaire must

contain instructions to the recipients on how properly to return their responses, including information on whether or not return postage is required.’’ 470

4. Mail between a Senator’s Washington Office and Home State offices (39

U.S.C. § 3210(a)(3)(D)).

This kind of mail must relate to a Senator’s official duties and is subject, like any

other kind of mail, to the franking regulations—including those relating to the use of personal

or political material. The Senate Postmaster provides ‘‘Orange Bags’’ for expedited delivery of

franked mail between a Member’s Washington, D.C. and state offices. See Franking Regs., ch.2,

para. 6.

164 SENATE ETHICS MANUAL

471 See Franking Regs., ch.2, para. 7, and also Interpretative Ruling 393 (Jul. 31, 1984). 472 See Interpretative Ruling Nos. 296, 325, 381, 382, 395, 407 and 417. 473 See Interpretative Ruling No. 415 (Mar. 24, 1987).

5. Mail to other Members of Congress and all other legislators (39 U.S.C.

§ 3210(a)(3)(E)).

This kind of mail must relate to a Senator’s official duties and is subject, like any

other kind of mail, to the franking regulations—including those relating to the use of personal

or political material. 471

6. Mail expressing congratulations to a person who achieved some public

distinction (39 U.S.C. § 3210(a)(3)(F)).

Letters of congratulations may be franked only when the occasion involves a public

distinction, rather than a personal distinction (Franking Regs., ch. 2, para. 8). Examples of NONfrankable personal mail include letters of congratulations (and condolences) upon occasions such

as birth, graduation from high school and college, marriage, and death. 472 These examples mark

neither a unique public occasion, nor the achievement of a public distinction accorded in recognition of unusual public service to the community, state or nation. Other examples include: promotion in a business; establishing a new business; continuous family ownership of a farm for one

hundred years; receiving an award from a local farming organization; being mentioned in an article

appearing in a trade association journal; registering to vote; graduating as class valedictorian; or

being in the top ten percent of a high school government class. Mail related to a personal distinction should be sent using officially related funds (or personal funds) of the Senator. Letters of

personal distinction are not rendered frankable when mailed in direct response.

Examples of frankable ‘‘public distinctions’’ for which the frank could be used to mail a letter

of congratulations include: recent naturalization as an American citizen; receipt of a high school

diploma by a senior citizen through an adult education program; enlistment or re-enlistment in

the Armed Forces; becoming an Eagle Scout or a VFW Commander or an American Legion State

Commander; being elected to a public office; becoming director of a state museum; being commissioned upon graduation from one of the U.S. Service Academies; being the recipient of a Harry

S. Truman Scholarship or a Robert Byrd honor scholarship; or receiving the ‘‘Employer of the

Year’’ Award presented by the President’s Committee on Employment of the Handicapped. The

Committee has also ruled that a Senate office may frank correspondence responsive to condolences

on the death of a Senator or a Senator’s spouse, however, mail sent in response to the illness

of a Senator or spouse is not frankable. If a Senate office is unsure whether a particular occasion

merits the use of the frank as a public distinction, the office may contact the Committee to obtain

a ruling on the specific event.

7. Mail consisting of Federal regulations or other publications containing

general information (39 U.S.C. § 3210(a)(3)(G)).

This provision authorizes the franking of ‘‘mail matter, including general mass mailings,

which consist of Federal laws, Federal regulations, other Federal publications, publications purchased with Federal funds, or publications containing items of general information.’’ (See Franking

Regs., ch. 2, para. 9) Examples of such frankable material are the Agricultural Yearbook, Congressional Directory, Senate wall calendar, Agriculture Department pamphlets, and any other publication printed by order of Congress which relates to the legislative process.

8. Mail containing nonpartisan voter registration or election information

(39 U.S.C. § 3210(a)(3)(H)). 473

This section authorizes the franking of ‘‘mail matter which consists of voter registration or election information or assistance prepared and mailed in a non-partisan manner.’’ (See

Franking Regs., ch.2, para. 13) Letters from a Senator may be sent under the frank to new voters

CHAPTER 7 165

474 See Interpretative Ruling Nos. 42 and 112. 475 Franking Regs., ch. 2, para. 14 and 15. 476 Id. 477 Franking Regs., ch. 2, para. 16.

and recently naturalized citizens encouraging them to vote by providing information or assistance.

This kind of mailing must NOT include otherwise unfrankable political material.

9. Mail containing biographical material or pictures in Federal publications

or in response to specific requests (39 U.S.C. § 3210(a)(3)(I)-(J)). 474

Section 3210(a)(3)(I) authorizes the franking of biographical matter and photographs

of a Senator only in response to specific requests from the public, a biography or photograph contained in a Federal publication, or a photograph contained in a newsletter or other general mass

mailing of any Member or Member-elect (see section on mass mailing below for details on picture

requirements in newsletters and mass mailings). 475 The material may be in the form of all of or

parts of a book, a newspaper or magazine article, a specially printed brochure, a copy of a speech,

or in some other form. ‘‘The frankability of biographical matter could be affected by the inclusion

of personal matter for publicity, advertising or potential use for political purposes.’’ 476

10. The whole or ‘‘any part of the . . . Congressional Record, if such matter

is mailable as franked mail.’’ (39 U.S.C. § 3212a).

Section 3212 of the Franking Statute authorizes Senators to send the Congressional

Record as franked mail. If a Senator wishes to mail a portion of or excerpt from the Congressional Record, that portion or excerpt must independently qualify as frankable material. (See

Franking Regs., ch. 2, para. 10)

11. Public service material (39 U.S.C. § 3210(f)).

Section 3210(f) requires that mass mailings may only be mailed if the cost of preparing and printing of the mail matter is paid exclusively from funds appropriated by Congress,

except that an otherwise frankable mass mailing may contain as an enclosure or supplement public

service material which is purely instructional or informational in nature and which in content is

frankable. Members and staff are cautioned to employ a narrow reading of ‘‘public service material’’. (See Franking Regs., ch. 2, para. 12)

12. Seeds and agricultural reports (39 U.S.C. § 3213).

Section 3213 authorizes the use of the frank to mail seeds and agricultural reports

emanating from the Department of Agriculture in response to a specific request of a Senator. (See

Franking Regs., ch. 2, para. 19)

Nonfrankable Mail

No material that is not independently frankable may be inserted into

a franked envelope.

1. Mail containing laudatory and complimentary articles or texts concerning

Members on a personal basis rather than based on official duties or activities

of a Member (39 U.S.C. § 3210(a)(5)(A)).

‘‘Mail matter complimenting a Senator is frankable only if it relates to achievements

in the performance of Senate duties. However, the use . . . of matter which is laudatory or complimentary to the Senator, no matter how deserving or how accurate may give the impression that

the Senator is advertising himself for political purposes.’’ 477

2. Mail containing greetings from a Member’s family unless the greeting is

a brief and incidental reference in otherwise frankable mail (39 U.S.C. §

3210(a)(5)(B)(i).

166 SENATE ETHICS MANUAL

478 Id. 479 See Interpretative Ruling Nos. 306 and 420. For example, references to upcoming campaigns, filings for reelection, or expressions of gratitude for election are nonfrankable items in newsletter or news releases. See also Franking

Regs., ch. 2, para. 17. 480 Interpretative Ruling No. 278 (Jul. 23, 1979). 481 Franking Regs., ch. 2, para. 17.

Pursuant to this section, a Senator may add a greeting from a spouse or members

of the family only if the greeting is incidental to an otherwise frankable mailing.

3. Any card expressing holiday greetings (39 U.S.C. § 3210(a)(5)(B)(iii)).

Senators may not use the frank to mail holiday cards. However, Senators may use

officially related funds to mail holiday cards to constituents. Holiday cards to friends should be

sent with personal funds, not using Senate facilities. Senators also may NOT use the frank to acknowledge holiday greetings that were sent to them. Senators may express holiday greetings at

the commencement or conclusion of otherwise frankable mail. 478

4. Mail containing reports of a Member’s or his/her family’s activities other

than in connection with official functions and activities of the Member (39

U.S.C. § 3210(a)(5)(B)(ii)).

It is prohibited to use the frank for ‘‘reports of how or when such Member or Member-elect, or the spouse or any other member of the family of such Member or Member-elect,

spends time other than in the performance of, or in connection with, the legislative, representative,

and other official functions of such Member or the activities of such Member-elect as a Memberelect.’’

5. Mail containing solicitations for political support for the sender or any

person or party or a vote or financial assistance for any candidate (39 U.S.C.

§ 3210(a)(5)(C)). 479

Mail matter may include arguments or opinions which explain support and opposition

to legislative or policy matters, so long as the focus of the mailing is on the merits of the policy

issues and not on political considerations. This provision calls upon Senators and the Committee

to distinguish between ‘‘fair comment’’ on an issue and ‘‘political material.’’ The line between

the two is often difficult to discern. However, under this section, the Committee has on many

occasions recommended against using the frank to send material which is unduly or unnecessarily

disparaging of another’s actions, motives, or intent.

The Committee has routinely found unfrankable mail matter that uses the terms ‘‘Democrat’’

and ‘‘Republican’’ unless such terms are used to identify a title or office. However, the use of

the political designation ‘‘D’’ or ‘‘R’’ when used for purposes of party identification in an otherwise frankable mailing is permitted. 480

After the general election for the Senatorial office, a Senator who was a candidate in that

election ‘‘may send under his frank and in response to a specific request from a scholar, library,

museum, or collector . . . platform statements, bumper stickers, posters and buttons.’’ 481

6. Mail that is purely personal to the sender or to any other person (39

U.S.C. § 3210(a)(4)).

The use of the frank is prohibited for purely personal matters, unrelated to the official

business, activities, and duties of the public official. (See Franking Regs., ch. 2, para. 16)

7. Mail matter expressing condolences to a person who has suffered a loss

or expressing congratulations on a personal distinction (Franking Regs., ch. 2,

para 8).

See the discussion above concerning letters of congratulations involving a public distinction. Also, the franking statute does not authorize the use of the frank to mail letters of condoVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00180 Fmt 5222 Sfmt 5222 SMANUAL.007 ETHICS1 PsN: ETHICS1
CHAPTER 7 167

482 See Senate Rule 40.5 and Interpretative Ruling 44 (July 18, 1977). 483 Interpretative Ruling No. 135. (May 22, 1978) 484 Interpretative Ruling No. 416. (Apr. 28, 1987)

lence to the public. The franking privilege may, however, be used to send replies to letters of

condolence received from the public upon the death of a member of the Senator’s immediate family. Prior rulings have held that a Senator’s spouse or father are members of the immediate family.

The Committee has also ruled, however, that mail sent in response to the illness of a Senator or

spouse is not frankable.

8. The personal books belonging to a Senator, other than Federal publications (Franking Regs., ch. 2, para. 11).

The personal books belonging to a Senator, other than Federal publications, are not

frankable.

Surplus and other books and publications from the Library of Congress are frankable

to other libraries or persons. A Senator may provide franked labels to the Library of Congress

to be used in shipping such books or publications as long as the Senator takes such steps as may

be necessary to avoid misuse resulting in an improper loan of the frank. (See paragraph 4 of Chapter 1).

Ordinarily, a book which is printed privately under the authorship or editorship of

a Senator is not frankable; however, if the book is substantially biographical under the provisions

of paragraph 14 of this chapter, it may be mailed under the frank in response to a specific request

for biographical material.

9. A Senator may not use the mailing list of a private organization in a

franked mailing (Franking Regs., ch. 2, para. 20).

A Senator may not use the mailing list of a private organization in a franked mailing.

Mailing lists from outside sources, including campaign or political organizations, may be purchased for fair market value with funds of the Senator’s principal campaign committee, or with

official funds (subject to the rules and regulations of the Committee on Rules and Administration),

but may only be used in Senate offices if such lists bear no identification of individuals as campaign workers, contributors, or as members of a political party, and if the lists do not contain

any other partisan political information. 482 Likewise, the Senator may NOT provide the organization with information to be used to update its mailing list. 483 The mass mailing of franked return

address cards to correct general mailing lists is also prohibited. 484 For further discussion on mailing lists, see heading under Mass Mailing, section D, ‘‘Mailing Lists and the Senate Computer

Facilities’’ in this chapter.

10. Other mail

The frank is not recognized by the Postal Service for use in mailings to foreign addresses and for express mail. However, franked mail sent to APO addresses will be processed.

Mass Mailings

A. Definition

In addition to meeting the usual requirements for material to be sent under the frank, special

additional requirements and regulations apply to franked mass mailings.

A ‘‘mass mailing’’ is a mailing of more than five hundred newsletters or other pieces of mail

with substantially identical content (whether such mail is deposited singly or in bulk, or at the

same time or different items), during one session of Congress. See 39 U.S.C. 3210(a)(6)(E), as

amended by the Legislative Branch Appropriations Act, 1995 (P.L. 103–283). Thus, for example,

mailing 600 pieces of substantially identical mail in one mailing within a session is a mass mailing. Also, mailing substantially identical pieces of mail in groups of 200 at different times, totaling

168 SENATE ETHICS MANUAL

485 Interpretative Ruling No. 117 (Apr. 10, 1978). 486 Franking Regs., pg. 27. 487 Franking Regs., ch. 2, para. 4.

over 500 pieces of mail within a session, is a mass mailing (even though each individual mailing

event totaled less than 500 pieces).

A mass mailing does not include pieces of mail that consist of the following:

1. Mail in direct response to a communication from a person to whom the matter is mailed.

With respect to this exception, follow-up franked mailings made specifically and solely in response

to, and mailed not more than 120 days after the date of the original receipt of a written request,

inquiry or expression of opinion or concern from the person to whom it is addressed is not a

mass mailing [S. Res. 212 (101st Congress)]. A petition that is sent to a Member’s office by an

organization and that contains the names and addresses of the signatories to the petition may be

responded to by writing to each signatory as direct response mail. However, if an organization

forwards a list of more than 500 names to a Senate office, absent a petition, the response from

the office should be treated as a mass mailing.

2. Mail to other Members of Congress, or to federal, state or local government officials (i.e.

any elected or appointed official of the United States and of any state or territory or a political

subdivision thereof) 485 However, the Committee has distinguished between an appointed ‘‘official’’ and an appointed ‘‘employee,’’ and a mailing to more than 500 ‘‘employees’’ is considered

a ‘‘mass mailing’’ (e.g. school principals hired by superintendents on a year-to-year basis with

the approval of the school board have been deemed professional ‘‘employees’’ rather than appointed ‘‘officials,’’ so that a mailing to more than 500 principals was ruled a mass mailing).

3. News releases to the communications media;

4. Town meeting notices—except that, town meeting notices in excess of 500 notices per town

meeting may not be sent fewer than 60 days immediately before the date of any primary or general

election (whether regular, special, or runoff) for any federal, state or local office in which a Senator is a candidate for election. There is no exception for uncontested candidacies (P.L. 103-283).

[The Rules Committee places additional strict limitations on the content of such notices, and

should be consulted about including on a notice a picture of the Senator, or the Senator’s state

office address or committee appointments, see Appendix F]; or

5. A federal publication or other item that is provided by the Senate to all Senators or made

available by the Senate for purchase by all Senators from official funds specifically for distribution

(a limited exception applicable to items such as U.S. flags flown over the Capitol and ‘‘We The

People’’ calendars).

B. Content

‘‘A mass mailing by a Senator shall not exceed two sheets of legal size paper (or their equivalent), including any enclosure that (1) is prepared by or for a Senator who makes the mailing;

or (2) contains information concerning, expresses the views of, or otherwise relates to the Senator

who makes the mailing.’’ 486 Mass mailings sent by Committees under the frank of the chairman,

relating to the normal and regular business of the committee, are not subject to the two sheet limit.

‘‘The type in which the Senator’s name appears anywhere in a newsletter or mass mailing,

other than the masthead, may not exceed one-quarter inch in height.’’ 487

Personal references (i.e. the use of a Senator’s name or the word ‘‘Senator’’ in place of the

Senator’s name) may not appear in a newsletter or other mass mailing more than an average of

eight times per page. ‘‘Page’’ is defined as each side of an 8 1/2 x 11 inch, or 8 1/2 by 14 inch

CHAPTER 7 169

488 Id. and Interpretative Ruling 236. 489 Franking Regs., ch. 2, para. 4. 490 Id. 491 Interpretative Ruling No. 40 (Jul. 1, 1977). 492 Franking Regs., ch. 2, para. 4. 493 Id. ch. 2, para. 15. 494 Id. 495 Id. 496 Franking Regs., app. at pg. 27. 497 Senate Rule 40.2. 498 Senate Rule 40.3.

sheet of paper. 488 For purposes of this limitation, the use of a Senator’s name, preceded by the

word ‘‘Senator,’’ as in ‘‘Senator Jones,’’ constitutes only one personal reference. 489 The personal

reference limitation does not include the use of pronouns, the Senator’s name in the frank itself

or on the masthead, ‘‘nor does it apply to the mass mailing of otherwise frankable official Government records or publications’’ such as a hearing transcript or a complete copy of the Congressional

Record. 490 The limitation does apply, though, if the governmental record or publication material

is excerpted and incorporated into a mass mailing or newsletter. 491 The personal reference limitation is also not applicable to a frankable opening statement by a Senator before a congressional

Committee. 492

Any picture, sketch or other likeness of a Senator which appears in a newsletter or mass mailing must relate to the content of the newsletter or mass mailing. 493 A caption will not be sufficient

as accompanying text if the text of the mailing is otherwise unrelated to the picture. A picture

of a Senator alone may be no larger than twelve square inches and a picture of a Senator with

one or more persons may be no larger than twenty square inches. 494 The total number of pictures,

etc. (excluding the masthead) in which the Senator appears in a single newsletter may not be more

than four. 495

The following notice must be in no less than seven point type and must appear at a prominent

place on the bottom of the first page of each mass mailing: ‘‘PREPARED, PUBLISHED, AND

MAILED AT TAXPAYER EXPENSE.’’

The same rules that apply to regular mail matter regarding biographical information, personal

material and material of a partisan political nature also apply to newsletters and mass mailings

(see discussion above).

At the request of a Member, officer or employee, the Committee will examine proposed mail

matter and render an opinion as to whether the matter is in compliance with the law and Senate

rules.

C. Payment for, Preparation, Mailing and Registration of Mass Mail Material

ALL franked mass mailings must be prepared and mailed by the Senate Service

Department. 496 The Service Department will provide the Financial Clerk of the Senate a monthly statement of each Senator’s mass mailing costs. The Clerk will use this statement to debit the

appropriate cost from the Senator’s Personnel and Office Expense Account. As stated above, mass

mailings must be done with the frank, and expenses, up to the maximum $50,000, must be paid

with official funds provided for that purpose and NOT through the franking allowance. Private

funds may not be used to prepare, to print, or to distribute any material for a franked mass mailing. A Senator may use only official Senate funds to purchase paper, to print, or to prepare any

mass mailing material which is to be sent out under the frank. 497

Every calendar quarter, a Senator must register each mass mailing which he or she has sent

under the frank. 498 A Senator files with the Secretary of the Senate a copy of the actual mass

170 SENATE ETHICS MANUAL

499 Senate Rule 40.5. 500 Interpretative Ruling 44. 501 Id. 502 Interpretative Rulings 318 and 346. 503 Interpretative Rulings 134 and 160. 504 Interpretative Rulings 195, 196, 198, 241 and 255. 505 Franking Regs., ch. 3, para. 7, and app. at pg. 28; and see 39 U.S.C. § 3910(a)(6)(C); IR 366. 506 Franking Regs., ch. 3, para. 7; and Interpretative Rulings Nos. 152 and 154. 507 Franking Regs., ch. 3, para. 5.

mailing matter and a statement providing a description of the groups of people to whom the mailing was sent. Two weeks after the close of each quarter, the Secretary of the Senate prepares a

statement concerning mass mail costs for each Senatorial office. This statement is then published

in the Congressional Record and is also included in the semiannual Report of the Secretary of

the Senate.

D. Mailing Lists and the Senate Computer Facilities

The Senate Computer facilities may NOT be used to store, maintain, or otherwise process any

lists of names and addresses that identify persons as campaign workers or contributors, as members

of a political party, or by any other partisan designation. 499 Senators may input into Senate computer systems and then use voter address records, but only if those lists do not identify individuals

as campaign workers, contributors, or members of a political party and also do not contain any

other partisan information. 500

Senate computer facilities also may not be used to ‘‘produce mailing labels for mass mailings,

or computer tapes and discs, for use other than in service facilities maintained and operated by

the Senate or under contract to the Senate.’’ 501 Thus, mailing labels and tapes cannot be produced

by the Senate facilities for use in any other facility or by any other group or entity, such as a

campaign or a charitable organization. For example, a Senator cannot furnish to a political committee a list of names and addresses that are stored in the Senate computer facilities. 502

Under Rule 38, Senators may not accept a mailing list free of charge from a private, nongovernmental source since this would constitute a prohibited in-kind contribution to an unofficial

office account. However, a Senator may use funds of his principal campaign committee, or his

or her discretionary allowance to purchase such a list. 503 The donation of in-kind services from

federal agencies (if such in-kind donations are similarly available to other Members) would not

be considered a Rule 38 violation; for example, a Member may accept the donation of a computerized mail list from another Member. 504

For further information on the use of the Senate Computer facilities, the reader should contact

the Senate Rules Committee.

E. Moratorium on the Use of Mass Mailing Prior to A Primary, Caucus, Election, or

Nominating Convention

Senate rules and the Franking Statute also restrict franked mass mailings during political campaigns. ‘‘No Member of the Senate may mail any mass mailings as franked mail if such mass

mailing is mailed fewer than 60 days immediately before the date of any primary election or general election (whether regular, special, or runoff) for any national, State, or local office in which

such Member is a candidate for election, unless such candidacy is uncontested.’’ 505 While the

moratorium for Senators who are candidates also does not apply to a Senator who does not face

any opposition, nevertheless, if there is even the possibility of any opposition, including writein opposition, the moratorium does apply. 506 This sixty day moratorium also applies ‘‘to the period before any convention which has the authority to nominate a candidate for the Senate.’’ 507

CHAPTER 7 171

508 Interpretative Ruling 149.

509 Franking Regs., app. at pg. 30; and Interpretative Ruling 141.

510 Interpretative Ruling 313.

511 Franking Regs. ch. 3, para. 6; and app. at pg. 28.

512 Interpretative Ruling 408.

513 Interpretative Ruling 169.

514 Interpretative Rulings 408 and 370.

515 Id.

516 Interpretative Ruling 270.

517 See I.R. 442 which permits a Senator to use staff and Senate facilities, including supplies, in support of officially

related activities.

The 60-day limitation is calculated by excluding the actual day of the election. For example, the

last permissible date for delivering a mass mailing to a postal facility before a September 10 primary would be July 12. 508

Regulations Governing Official Mail, Sec. 8, adopted by the Senate Committee on Rules and

Administration, provide that solicitation forms provided by a Member through a mass mailing

which are intended to be mailed back by constituents, may not be responded to during the 60

days immediately before the date of any primary or general election (whether regular, special, or

runoff) of any Federal, State, of local office in which a Member of the Senate is a candidate for

election.

The 60-day moratorium does not apply to a committee when such mass mailings are mailed

under the frank of the chairman and relate to the normal and regular business of the committee. 509

The moratorium upon mass mailings to home state constituents is not triggered by participation in a presidential primary in another state. However, the 60-day moratorium applies to any

mass mailing to a state in which the Senator participates in a primary or election. 510

Finally, IN ADDITION to the moratorium applicable to Senators who are candidates, no Senator may send mass mailings during the period beginning 60 days before the date of any biennial

Federal general election, as set forth under Regulations of the Senate Rules Committee. 511 Town

meeting notices, which are not included in the definition of mass mailings, that number in excess

of 500 notices per town meeting may, nevertheless, not be sent fewer than 60 days immediately

before the date of any primary or general election for any federal, state, or local office in which

a Member is a candidate for election (P.L. 103-283). (For a discussion of other moratoria, including Internet and e-mail policies, see heading in this chapter).

SENATE LETTERHEAD

A Senator may NOT authorize or allow a non-Senate individual, group, or organization to

use the words ‘‘United States Senate’’ or ‘‘Official Business,’’ or any combination thereof, on

any letterhead or envelope. 512 The Senator’s loan of ‘‘United States Senate’’ letterhead is prohibited no matter what type style or lettering is chosen by the outside organization. 513 Senator’s also

may not use ‘‘United States Senate’’ letterhead and/or ‘‘Official Business’’ where ‘‘the correspondence involves a request for a financial contribution or other form of assistance for any

campaign or election or reelection to any federal, state, or local office. 514 Additionally, ‘‘thank

you’’ letters to contributors or campaign workers may not be sent on ‘‘United States Senate’’ letterhead. 515 This limitation was intended to preclude a mistaken impression by the recipient that

the letter was an official communication from the Senate.’’ 516

Official ‘‘United States Senate’’ letterhead and unfranked envelopes may be used in connection with officially related activities of a Member’s office. 517

172 SENATE ETHICS MANUAL

518 Id.; and Interpretative Ruling 408. 519 Interpretative Ruling 365.

A Senator may authorize an outside group or organization to use letterhead which states the

Senator’s name followed by the words, ‘‘United States Senator.’’ 518 ‘‘United States Senator’’ letterhead is, therefore, acceptable for use where a Senator is signing a letter soliciting contributions

on behalf of a charity. Such a charitable solicitation is, of course, also acceptable on the letterhead

of the charity preparing the solicitation. Such solicitations should not be carried out using the resources of a Senate office. See also the discussion of limitations on charitable solicitations in

Chapter 2, ‘‘OTHER PROHIBITED GIFTS FROM LOBBYISTS, LOBBYING FIRMS, AND

FOREIGN AGENTS.’’

Senators may use Senate letterhead for ‘‘inside mail Dear Colleague’’ letters that notify fellow

Senators of the fact that a particular charitable solicitation is in progress or to invite fellow Senators to fund-raising events which are hosted off U.S. Capitol facilities. However, given the policy

behind the Combined Federal Campaign and statutory restrictions, Senators should not become involved in charitable solicitations within U.S. Capitol facilities. 519

USE OF THE GREAT SEAL AND THE SENATE SEAL

The Seal of the U.S. Senate is in the custody of the Secretary of the Senate and is used only

to authenticate official Senate documents. With the written permission of the Secretary, images

of the Seal may be reproduced in educational publications for educational purposes. In addition

to the official Senate Seal, the Secretary has also authorized an alternative, non-official Senate

Seal. This alternative seal, which features an eagle clutching arrows and an olive branch in its

talons, surrounded by the words ‘‘United States Senate,’’ is commonly used by Senate offices and

is often displayed on items sold in the Senate Gift Shop. Even more commonly seen perhaps is

the Great Seal of the United States (also depicting an eagle clutching arrows and an olive branch

in its claws). Both the Senate Seal and the Great Seal are protected by 18 U.S.C. 713, a criminal

statute. That provision is intended to restrict the knowing display of the Senate Seal or the Great

Seal or any facsimile thereof in any manner reasonably calculated to convey a false impression

of sponsorship or approval by the Government of the United States. While the interpretation of

this statute is a matter for the Department of Justice, it appears that in most cases use of the Senate

Seal or the Great Seal for normal official Senate business would be appropriate; by contrast, commercial use, personal use or campaign use would be improper.

Although the Committee has not issued an Interpretative Ruling on the use of the Senate Seal

(official or alternative) or the Great Seal, many of the practical restrictions on their use are similar

to the restrictions on the use of the ‘‘United States Senate’’ letterhead. See, for example, the discussion on use of the Senate letterhead above, which states that the letterhead should not be used

for campaign or other fundraising purposes.

SENATE FACILITIES:

AUCTION ITEMS, MORATORIA, THE INTERNET, AND USE OF OFFICIAL

FUNDS

Auction Items

A Member may donate for auction an item purchased on his or her official stationery account

if the item is of nominal value, was not intentionally procured for the purpose of donation, and

the donee group is either non-profit or a non-political organization. See IR 351. [Compare: offering

flags flown over the Capitol or Senate Gallery passes in return for campaign contributions may

reflect discredit on the Senate, and making campaign solicitations offering either special treatment

or special access to the Senator is discouraged. See IR 427.]

CHAPTER 7 173

Often, Members are asked by constituent charity (i.e., 501(c)(3)) groups to donate items for

charitable auction; such items typically involve a lunch or dinner with a Member or a tour of

the Capitol to be conducted by a staffer. The Committee has previously ruled in Interpretative

Ruling 438 that the prohibition on soliciting anything of value contained in 5 U.S.C. 7353 does

not prohibit charitable solicitations. Thus, in clarification of its policy on auction items, the Committee notes that items such as visits to the Senate Dining Room or tours of the Capitol could

be offered to a charity for auction. Within the discretion of the Member, no rule or law prohibits

the offering of such items for charitable auction with or without the presence of a Member or

staffer. As in all such matters, absent conduct that would reflect discredit upon the Senate, the

Committee will not interfere with the judgment of the Member. If any such charitable contribution

is contingent upon the presence of a Senate Member, officer, or employee, however, the amount

of such contribution, would be subject to the $2,000 limitation of Senate Rule 36.

Pursuant to S. Res. 294, 96th Congress, as amended by S. Res. 176, 104th Congress, payments

or reimbursements from Senate funds shall not be made for donation or gifts of any type, except

gifts of flags which have been flown over the Capitol, copies of the book ‘‘We, the People’’,

and copies of the calendar ‘‘We the People’’ published by the United States Capitol Historical

Society. (See also, Paragraph 79.27 of the Standing Orders of the Senate). The legislative history

of S. Res. 294 limits the groups to which a gift of a flag may be made to public organizations

only, such as churches, schools, and patriotic service groups.

Moratoria

In addition to the 60-day pre-election moratoria on the use of the mailing frank (for mass

mailings and town meeting notices), on ‘‘lame duck’’ travel, and on the payment of per diem

expenses for travel before an election, which have previously been discussed, other Senate facilities are also subject to pre-election moratoria on their usage. The Rules Committee’s policy on

such moratoria may be reviewed in the January 28, 2002 Rules Committee Notice (check with

the Rules Committee for later versions) regarding Senate allowances and facilities in Appendix

L of this Manual. An ‘‘election’’ for purposes of the 60 day pre-election moratoria includes any

nominating convention or caucus, as well as any regular, special, or runoff election.

The Senate and House radio and television studios, including facilities of the Republican

Conference and the Democratic Policy Committee, are subject to a pre-election moratorium on use

by a Senator or an individual who is either a candidate for nomination for election or a candidate

for election to the Senate. The Senate and House radio and television studios, including facilities

of the Republican Conference and the Democratic Policy Committee, may not be used less than

sixty days immediately before the date of any primary or general election (whether regular, special,

or runoff) in which that Senator is a candidate for public office or that individual is a candidate

for Senator, unless the candidacy of the Senator in such election is uncontested [See Rule 40.6].

This prohibition does not apply if the facilities are to be used at the request of, and at the expense

of, a licensed broadcast organization or an organization exempt from taxation under section

501(c)(3) of the Internal Revenue Code of 1954. Press gallery cameras owned and operated by

licensed broadcast organizations are not covered by the moratorium.

Also, during the 60 day period immediately preceding the date of any election (whether regular, special or runoff) for any national, state, or local office in which the Senator is a candidate,

no Member may place, update or transmit information using a Senate Internet Server (FTP Server, Gopher, and World Wide Web), unless the candidacy of the Senator in such election is

uncontested. A Senate office that receives over 500 e-mail inquiries on a topic may respond in

writing to such inquires without the mailing being treated as a mass mailing, so long as the correspondence complies with the direct response requirements of the franking statute. As to whether

174 SENATE ETHICS MANUAL

a Member’s response to an individual’s request to be added to the Member’s e-mail address list

for periodic updates will qualify as direct response e-mail, contact the Senate Rules Committee.

For this and other possible use restrictions in the pre-election periods, see the February 9, 1998

Rules Committee statement reprinted in the Appendices in this Manual.

Finally, mobile office rental payments and operating costs may not be paid for use during

such 60 day pre-election period if the Senator is a candidate for public office, unless his or her

candidacy is uncontested. See the Rules Committee Internet statement of February 9, 1998 in the

Appendices.

The Internet

The Rules Committee has issued an Internet policy to provide guidance to Senate offices concerning Senate Member, officer, and employee responsibilities in using Internet services provided

by the Senate. The specifics of the July 22, 1996 policy and a November 14, 1996 update are

set forth in Appendix K in this Manual. Briefly, Senate Internet services may only be used for

official purposes. The use of the Senate Internet for personal, promotional, commercial, or partisan

political purposes is prohibited. Thus, a Member’s Senate web site should not include a link to

his or her (or any) campaign web site. In addition, the Committee has advised that a Member’s

principal campaign committee web site should not include a link to his or her Senate office web

site.

As noted in the moratoria section above, a Senate office that receives over 500 e-mail inquiries on a topic may respond in writing to such inquires without the mailing being treated as a mass

mailing, so long as the correspondence complies with the direct response requirements of the

franking statute. Also, where a Senate office receives an unsolicited e-mail which asks a campaign

related question, the recommended approach to minimize involvement of official resources is to:

a) respond to the e-mail by informing the sender that the Senate office is not related to the Senator’s campaign and that any campaign communication may be sent to the campaign’s e-mail address or phone number, or b) forward the misdirected e-mail to the campaign.

The growth of e-mail as a means of communicating with constitutents continues to raise

unique questions about application of the Senate’s Code of Official Conduct (Senate Rules 34 thru

43) to this method of transmitting, receiving, and responding to information. The Ethics Committee

has issued two recent rulings in this area. In a case involving an internet service provider which

provides extensive news content free to any internet user accessing its server, the Committee concluded that such a provider should be treated the same as other news publishers (i.e. print, television, radio, etc.), in that, a Senator’s favorable response to such a provider’s request that the

Senator author an ‘‘op-ed’’ piece for publication on its site would be consistent with the Code

of Official Conduct (in particular, Rule 38). In another case, the Committee decided that the Senate

Code of Conduct (again, Rule 38 in particular) did not prohibit a Senator from accepting petitions

from the public (and a related demographic analysis of petitioners) through an internet company

which provides a free contact point, available to any internet user accessing its server, for transmitting petitions to public officials; nor does the Code prohibit the Senator from responding to the

petitioners either directly or through the point of contact server used by the petitioner.

Use of Official Funds

The following excerpt from the Congressional Research Service may provide useful guidance

on the issue of the use of federal funds and facilities: [See also page 189].

There is no overall, express restriction in federal statutory law concerning the use of appropriated funds for partisan ‘‘political purposes,’’ and Congress may appropriate, and

has appropriated, federal funds for use in political campaigns, such as in the Presidential

CHAPTER 7 175

Election Campaign Fund Act and the Presidential Primary Matching Payment Account

Act. However, a general appropriations principle, codified in federal law at 31 U.S.C.

§ 1301(a), states that monies appropriated by Congress may only be spent for the purposes for which they were appropriated. This provision bars the misapplication or misuse

of federal funds by federal agency personnel. That is, funds appropriated by Congress

for an agency or a federal office for official purposes, may not be diverted and used

for partisan political campaigns. As the General Accounting Office explains, ‘‘Generally

speaking, funds appropriated to carry out a particular program would not be available

for political purposes, i.e., for a propaganda effort designed to aid a political party or

candidate. If for no other reason, such an expenditure would be improper as a use of

funds for other than their intended purpose in violation of 31 U.S.C. § 1301(a).’’ [GAO.

Principles of Federal Appropriations Law, at 4–178 (1992)]

Federal agencies and departments have discretion to expend federal funds to promote and

to further the legitimate, official governmental objectives of the federal agency, department, or entity and the programs and policies within their jurisdiction. See Principles

of Federal Appropriations Law, supra at 4–14 to 4–20. Federal monies may not be expended merely for any purpose, however, and the expenditure must ‘‘contribute to accomplishing the purpose of the appropriation the agency wishes to charge.’’ lat. at 4–

16. The Comptroller General has thus looked to activities to determine if they ‘‘can be

said to be so completely devoid of any connection with official functions or so political

in nature that [the expenditures] are not in furtherance of purposes for which Government

funds were appropriated.’’ Decision of the Comptroller General, B–147578, November

8, 1962, at p. 5; see also B–144323, November 4, 1960, Principles of Federal Appropriations Law, supra at 4–178. Where there has been a ‘‘determination’’ made by the President, cabinet officer, agency head or assistant that certain activities ‘‘are in connection

with official duties,’’ the Comptroller General would look merely to see if ‘‘there is a

reasonable basis for such a determination.’’ Id. 5. It may be noted that the issue of

whether an activity is ‘‘official’’ or ‘‘political’’ has arisen from time to time with respect

to travel by the President and Vice President, and that guidance given by the Department

of Justice concerning the expenditure of funds for travel, including the reimbursement

of the Government from campaign funds for ‘‘political’’ travel, stated that ‘‘funds appropriated for the official functioning of the offices of the President and the Vice President’’

may be used ‘‘only if the [activity] is reasonably related to an official purpose’’ [See

6 Op. O.L.C. 214 (1982)].

See Campaign Fund-Raising Controversy and Investigation, Kevin Coleman, Joseph Cantor, Jack Maskell, Marie Morris and L. Paige Whitaker, Congressional Research Service, The Library of Congress (August 26, 1998, Order Code IB97045).

(176)

Chapter 8: CONSTITUENT SERVICE

Introduction ......................................................................................................................... 177

Senate Rule 43 ..................................................................................................................... 177

Excerpt from the Committee’s 1991 Keating Report Concerning Interventions with

Administrative Agencies ................................................................................................. 179

Hatch Act: Letters of Recommendation ............................................................................. 185

177

Chapter 8

CONSTITUENT SERVICE

Rule 43

INTRODUCTION

The First Amendment of the U.S. Constitution guarantees the ‘‘right of the people . . . to

petition the government for a redress of grievances.’’ Responding to inquiries of petitioners and

assisting them before executive or independent government officials and agencies is an appropriate

exercise of the representational function of each Member of Congress, as well as an important

function of congressional oversight. In 1992, following the Committee’s investigation in the

Keating matter, the Senate adopted S. Res. 273, which created Senate Rule 43. Rule 43 incorporates a standard that prohibits Members from basing the decision to assist a petitioner before

Federal agencies and officials on whether the petitioner has contributed to the Member’s campaign

or causes. The Rule also provides general guidance to Members and staff on permissible contacts

with government officials on behalf of petitioners. This chapter sets forth the language of Rule

43 and reprints the Committee’s report from the Keating matter on the issue of federal agency

intervention.

SENATE RULE 43

On July 2, 1992, the Senate adopted S. Res. 273, which incorporates, as part of the Code

of Official Conduct, Senate Rule 43, governing representative functions of Members of the Senate

with respect to communications from petitioners.

Senate Rule 43 states, in part, that: ‘‘in responding to petitions for assistance, a Member of

the Senate, acting directly or through employees, has the right to assist petitioners before executive

and independent government officials and agencies.’’

Furthermore, Rule 43 provides that:

‘‘at the request of a petitioner, a Member of the Senate, or a Senate employee, may communicate with an executive or independent government official or agency on any matter

to—

(a) request information or a status report;

(b) urge prompt consideration;

(c) arrange for interviews or appointments;

(d) express judgments;

(e) call for reconsideration of an administrative response which the Member believes is

not reasonably supported by statutes, regulations or considerations of equity or public

policy; or

(f) perform any other service of a similar nature consistent with the provisions of this

rule’’.

Rule 43 also provides that:

‘‘The decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political

campaigns or to other organizations in which the Member has a political, personal, or

financial interest.’’

178 SENATE ETHICS MANUAL

‘‘A Member shall make a reasonable effort to assure that representations made in the

Member’s name by any Senate employee are accurate and conform to the Member’s instructions and to this rule.’’

‘‘Nothing in this rule shall be construed to limit the authority of Members, and Senate

employees, to perform legislative, including committee, responsibilities.’’

Rule 43 is intended as general guidance on permissible contacts with Federal agencies and

officials on behalf of petitioners, who may or may not be constituents. The central provision of

the rule prohibits Members from basing the decision to assist a petitioner before a federal agency

or official on whether the petitioner has contributed to the Member’s campaign or causes. Rule

43 does not, and was not intended to, govern the entire range of issues that might arise with respect to interventions with other government agencies. Because each situation is unique on its

facts, each Member should review a proposed intervention in its entirety.

In an August 1, 2002 Dear Colleague letter, the Committee also advised Members that identifying those seeking access to Members based on party affiliation, political contributions or past

employment, or encouraging others to do so, suggests a motive to grant special access, or deny

access, based on those criteria and trends to adversely affect public confidence in the Senate.

Therefore, the Committee advised that Members should take every effort to avoid any conduct

which may create the appearance that, because of party affiliations, campaign contributions, or

prior employment, a petitioner will receive or is entitled to either special treatment or special access, or be denied access.

The Committee has recommended that prior to intervention with a government agency, a

Member consider both the merits of the constituent’s case, as well as the kind of agency involved

and the nature of the agency proceedings. A review of the case might include consideration of

whether the Senator’s office would perform the same service for any constituent similarly situated;

the extent to which the proposed action or pattern of action deviates from normal office practice;

and, if the Senator or staff member knows that an individual is a contributor, the history of donations by a contributor and the proximity of money and action, i.e. how close in time the Senator’s

official action would be to his or her knowledge of or receipt of contribution(s).

In reviewing the type and nature of agency proceeding, the Committee has recommended that

a Member consider whether the agency is performing a quasi-judicial, adjudicative, or enforcement

function. Such formal agency adjudications and rulemaking proceedings require that the agency’s

decision be based only upon a record developed during a trial-like hearing. Ex parte communications (oral or written communications made without notice and off the public record) are generally

prohibited during formal adjudication periods and, typically, are placed on the public record. Absent a formal adjudicative proceeding, a Senate office that seeks to communicate with a federal

agency may find it useful to contact the agency congressional liaison or similar functionary to

determine with respect to the matter in question whether the agency is operating under any internal

restrictions on outside communications.

The general advice of the Ethics Committee concerning pending court actions is that Senate

offices should refrain from intervening in such legal actions (unless the office becomes a party

to the suit, or seeks leave of court to intervene as amicus curiae) until the matter has reached

a resolution in the courts. The principle behind such advice is that the judicial system is the appropriate forum for the resolution of legal disputes and, therefore, the system should be allowed to

function without interference from outside sources. See, for example, the Committee’s Interpretative Ruling 237 (March 21, 1979) in Appendix A. Because the rules governing judicial proceedings vary widely from jurisdiction to jurisdiction, and from case to case, and because the nature of an intervention with a court cannot be known in advance, a final determination as to the

propriety of a particular intervention with a court in a legal matter will depend upon the totality

of the circumstances in a given case.

CHAPTER 8 179

520 Senate Report 102–223. 521 P. Douglas, Ethics in Government, 85 (Cambridge: Harvard University Press, 1952), (‘‘Ethics in Government’’). 522 Id. at 86–87.

Notwithstanding these limitations respecting court interventions, the Committee has ruled that

communications with an agency with respect to a matter which may be the subject of litigation

in court is, nevertheless, generally permitted, where the communication is with the agency (or its

attorneys, e.g. the Department of Justice) and not directed at the court, where the agency is not

engaged in an on-going enforcement, investigative, or other quasi-judicial proceeding with respect

to the matter, and where the communication is based upon public policy considerations and is otherwise consistent with Rule 43.

*************************************

At the conclusion of the Committee’s investigation in the Keating matter in 1991, the Committee issued a report which articulated the standards governing the conduct of Members and staff

with respect to federal agency intervention. 520 The following is a pertinent excerpt from the Committee report, which was provided at the time to give interim advice pending issuance of written

guidance by the Senate. Rule 43 has subsequently been adopted by the Senate on the subject of

intervention with Federal executive agencies. Although the Senate Rule now provides written guidance from the Senate on the subject, the Committee’s discussion of interventions (which follows)

is consistent with Senate Rule 43 and continues to provide useful guidance in making decisions

on the appropriateness of planned interventions.

*************************************

EXCERPT FROM THE COMMITTEE’S 1991 KEATING REPORT

CONCERNING INTERVENTIONS WITH ADMINISTRATIVE AGENCIES

1. The Necessity of Interventions

This Committee is not the first to address the question of limits on interventions with administrative agencies. In his 1954 book, Ethics In Government, Senator Paul Douglas noted that many

believed that:

‘‘. . . the function of the legislators is to make the laws and that of the public administrators is to administer them, and that consequently neither should interfere with the work

of the other.’’ 521

Senator Douglas rejected such an analysis. He noted that:

‘‘the truth of the matter is that both civil servants and Public administrators are all too

human.’’ They both make mistakes, are frequently arbitrary, and are often imperfectly

acquainted with the facts. They may both suffer from an undue power complex. Administrators also have a frequent weakness of ignoring the conditions and needs of the men

and women who are involved in their rulings and of treating them as ‘‘cases’’ rather

than as people. Furthermore, some are indolent. Red tape is multiplied while papers and

the attendant fate of individuals get lost, ignored, and delayed. . . For these reasons, the

intervention of legislators corrects injustices in a large number of cases and also helps

to check tendencies of administrators towards personal and class aggrandizement . . .

‘‘The truth is that legislation and administration should not be kept in air-tight and separate compartments. In order that each group may perform its own job adequately, it

should, within limits, interest itself in the work of the other. There is, then, a sound ethical basis for legislators to represent the interests of constituents and other citizens in

their dealings with administrative officials and bodies.’’ 522

Similarly, the House of Representatives’ Select Committee on Standards of Official Conduct

also recognizes the legitimacy of congressional intervention with administrative agencies in its Advisory Opinion 1, it noted that:

180 SENATE ETHICS MANUAL

523 House Committee on Standards of Official Conduct Advisory Opinion No. 1 (1970) (‘‘House Advisory Opinion

No. 1), reprinted in House Committee on Standards of Official Conduct, 100th Cong., 1st Sess., Ethical Manual for

Members, Officers, and Employees of the U.S. House of Representatives 175–77 (Comm. Print 1987) (‘‘House Manual’’).

524References to intervention by a member encompass intervention by the Member’s staff.

525 See United States v. Florida E. Coast Ry. Co., 410 U.S. 224, 244–45 (1973).

526 Id.; see also 5 U.S.C.A. § 551 (4)-(7) (West 1977).

527 Pub. L. No. 94–409, 90 Stat. 1241 (1976).

the first Article in our Bill of Rights provides that ‘‘Congress shall make no law . . .

abridging the . . . right of the people . . . to petition the government for a redress of

grievances.’’ The exercise of this Right involves not only petition by groups of citizens

with common objectives, but increasingly by individuals with problems or complaints involving their personal relationships with the Federal Government.

The Committee also noted that increasingly individuals, in petitioning the government, have turned

to their most ‘‘proximate connection’’ to the government, their elected representatives. Therefore,

it has concluded that:

it is logical and proper that the petitioner seek the assistance of his Congressman for

an early and equitable resolution of his problem, and a Member of the House of Representatives, either on his own initiative or at the request of a petitioner, may properly

communicate with an Executive or Independent Agency on any matter to:

–request information or a status report;

–urge prompt consideration;

–arrange for interviews or appointments; express judgments;

–call for reconsideration of an administrative response which he believes is not supported

by established law, Federal Regulation or legislative intent; perform any other service of

a similar nature in this area compatible with the criteria hereinafter expressed in this Advisory Opinion.’’ 523

2. Limitations on Interventions

There are ethical limits to a Member’s intervention 524 in agency matters which exist regardless of whether the individual on whose behalf the Member intervenes is a contributor, or for that

matter, a noncontributor. In reviewing these limits, the Committee has drawn from statutory law

and case law. The Committee has also reviewed generally accepted standards of congressional conduct and other sources. No one of these other sources is controlling, nor is any one of them adopted by reference in its entirety. The Committee notes that neither the Senate, nor the House, has

to date, disciplined a Member solely because of that Member’s intervention with an executive

agency.

a. Statutory and Judicial Limitations on Congressional Intervention

The extent of the statutory and judicial limitations imposed on congressional intervention depends on the kind of administrative proceeding involved, with the most stringent limitations placed

on congressional contacts involving pending agency adjudications. Adjudication is the resolution

of factual and legal disputes in particular situations involving existing statutes or regulations. 525

In contrast, rulemaking (which may be formal or informal) is the formulation, amending, or repealing of prospective and generally applicable rules and standards. 526 In addition to adjudication and

rulemaking, many agencies engage in a myriad of procedures which are neither adjudicatory nor

rulemaking.

(i) Limitations on Ex Parte Communication

As part of the Government in the Sunshine Act, 527 Congress enacted Section 557(d)(1)(A)

of Title 5, which prohibits ex parte communications by an interested party, which may include

CHAPTER 8 181

528 See H.R. Rep. No. 880, 94th Cong., 2d Sess. pt. 1, at 19–20 (1976); S. Rep. No. 354, 94th Cong., 2d Sess.

36 (1975), both reprinted in Senate Committee on Government Operations and House Committee on Government Operations, 94th Cong., 2d Sess. Government in the Sunshine Act – S. 5, Source Book: Legislative History, Texts, and Other

Documents (Joint Comm. Print 1976).

529 Id.

530 H.R. Rep. No. 880, pt. 1, at 19 and pt. 2, at 18; S. Rep. No. 354 at 3; see also United States Steelworkers

of Am. v. Marshall, 647 F.2d 1189, 1213 (D.C. Cir. 1980), cert. denied sub nom. Lead Indus. Assoc. Inc. v. Donovan,

453 U.S. 913 (1981)

531 S. Rep. No. 354 at 1: see also H.R. Rep. No. 880, pt. 2, at 18.

532 5 U.S.C. § 551(14)

533 H.R. Rep. No. 880, pt. 1, at 20–21.

534 Id. at 20–21.

535 5 U.S.C. § 557(d)(1)(C).

536 5 U.S.C. § 557(d)(1)(D).

537 5 U.S.C. § 706(2)(D). See also Raz v. Inland Navig. Co., v. Interstate Commerce Comm’n, 625 F.2d 258 (9th

Cir. 1980)

538 354 F.2d 952 (5th Cir. 1956).

539 Id. at 964.

Members of Congress, 528 with an agency employee reasonably expected to be involved in decision-making regarding the merits of a proceeding. 529 Ex parte communications are oral or written

communications made without proper notice to all parties and which are not on the public record.

This prohibition against ex parte contacts applies only to formal agency adjudications and rulemaking proceedings which are adjudicative in nature (so-called formal on-the-record rulemaking),

both of which require that the agency’s decision be based only upon a record developed during

a trial-like hearing. 530 This provision was intended to ensure that decisions required by law to

be made solely on the basis of a public record will not be influenced by secret discussions that

some of the parties to the proceeding, or the public, do not know about. 531

Status inquiries are considered an exception to the prohibition on ex parte communications. 532

The Governmental Affairs Committee report accompanying the Sunshine Act, however, stated that

only requests for status reports that do not affect the way a case is decided are exempted from

the statute. 533 The Committee noted that some requests for status reports could be subtle attempts

to influence the outcome of agency proceedings and that agencies should treat such status inquiries

as ex parte when the purpose is not clear. 534

An agency employee who receives an ex parte communication is required to include it in the

public record of the proceeding. 535 In addition, the presiding officer of a proceeding in which

an ex parte communication has been made in knowing violation of the statute may dismiss the

claim or otherwise decide the matter adversely to the party involved in the improper communication. 536 A court that finds that agency action did not comply with the procedures established by

law shall set aside that action. 537 The various FHLBB proceedings at issue in this case were neither formal agency adjudications nor formal rulemaking, and thus were not subject to the ban on

ex parte communications.

(ii) Interference with Agency Proceedings

Courts also have set aside agency action when congressional intervention into an ongoing adjudication created the appearance of partiality. In Pillsbury Co. v. Federal Trade Commission, 538

the court found that a hearing held by a Senate subcommittee regarding a particular Federal Trade

Commission (‘‘FTC’’) adjudication then underway violated the plaintiff’s procedural due process

rights. The questioning of FTC officials about the adjudication by the Senate panel was found

to violate the right to the ‘‘appearance of impartiality’’ due private litigants in agency adjudications. 539 Under Pillsbury, therefore, congressional intervention in agency adjudications which creates an appearance of partiality may result in a court nullifying the agency’s resolution of the case.

182 SENATE ETHICS MANUAL

540 See Sierra Club v. Costle, 657 F.2d 298, 400–01 (D.C. Cir. 1981). 541 Id. at 409. 542 D.C. Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1246 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030 (1972);

see also Peter Kiewit Sons’ Co. v. U.S. Army Corps of Eng’rs, 714 F.2d 163, 169 (D.C. Cir. 1983). 543 648 F.2d 118 (3d Cir. 1981). 544 Id. at 126 and 130. United States v. Corless, 614 F. 2d 914 (3rd Cir. 1980). 545 United States v. RFB Petroleum, Inc., 703 F.2d 528,532 (C.A. Em. App. 1983); United States v. Phoenix Petroleum, 571 F. Supp. 16 20 (S.D. Tex. 1982); United States v. Armada Petroleum Corp., 562 F. Supp. 43, 50–51 (S.D.

Tex. 1982). See also, United States v. Merit Petroleum, Inc., 731 F.2d 901,904 (C.A. Em. App. 1984) 546 562 F.Supp. 43, 50–51 (S.D. Tex. 1982) 547 GULF OIL CORP. V. FPC, 563-F. 2d 588, 610 (3rd Cir. 1977), cert. denied, 434 U.S. 1062, 98 S. Ct 1235,

55 L.Ed. 2d 762 (1978). 548 Subcommittee of the Senate Committee on Labor and Public Welfare, 82nd Cong., 1st Sess., Ethical Standards

in Government, 29–30 (Comm. Print 1951) (‘‘Douglas Report’’). 549 Id. at 29.

A different standard has been applied to congressional interventions if the matter under consideration involves rulemaking which is more legislative than judicial in character. 540 In the context of actions which are not adjudicatory or quasi adjudicatory, an agency determination will be

voided only if the congressional contacts resulted in the decision-maker taking into consideration

factors ‘‘not made relevant by Congress in the applicable statute.’’ 541 For example, in one case,

a threat by a Member of Congress to cut funding to an agency unless a particular result was

achieved in a rulemaking was deemed ‘‘extraneous’’ and sufficient to set aside the agency action. 542 In contrast, discussions about the merits of a decision would be permissible. No evidence

was presented during the Committee’s hearings into this matter indicating that any of the Senators

in this case threatened the agency officials or suggested that those officials should base their decision on anything other than the merits of Lincoln’s case.

In cases of agency investigations, the courts have been extremely hesitant to interfere on the

basis that there were congressional contacts. In SEC v. Wheeling-Pittsburgh Steel Corp., 543 the

court refused to enforce a subpoena issued by the SEC in an investigation undertaken at the request of a Senator. But the court noted that the fact that the SEC commenced these proceedings

as a result of the importunings of a Senator, even if the importunings were made with malice

on his part, was not a sufficient basis to deny enforcement of the subpoena. In order to quash

the subpoena, the plaintiff had to show that the SEC issued it without an objective determination

by the Commission and only because of political pressure. 544

Several courts have subsequently applied the Wheeling-Pittsburgh rationale. In each case, the

defendant company claimed, inter alia, that a Member of Congress had exerted improper influence

on the agency official making the decision to issue the subpoena. In each instance, the courts rejected the claims. 545 In United States v. Armada Petroleum Corp., 546 for example, the court acknowledged Wheeling-Pittsburgh’s holding that an agency may not order an investigation ‘‘because of political pressure to do so,’’ but found that where congressional involvement is directed

at accelerating the disposition and enforcement of the pertinent regulations, it has been held that

such legislative conduct does not affect the fairness of the agency’s proceedings and does not warrant setting aside its order. 547

b. Congressional Standards of Intervention with Federal Agencies.

Nearly 40 years ago, Senator Paul Douglas outlined standards of conduct for Members to observe when intervening with the executive branch. He stated that Members have two ‘‘moral obligations’’ in this regard: (1) to pursue cases only on their merits, and (2) to ensure that they do

not intervene in a manner and to a degree that damages the administrative process. 548

With regard to merit-based decisions, Senator Douglas noted that by limiting interventions

to meritorious cases, the fact of a Senator’s intervention is unlikely to be deemed improper. 549

The Committee believes the duty of a Member to determine the merits of a case is related to

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550Ethics in Government at 90. 551 House Advisory Opinion No. 1. 552Ethics in Government at 89–90.

the level of action he or she is going to take. For example, a routine status inquiry would not

require the same level of familiarity with the merits of a case as would proposing a possible solution. The Committee also appreciates the fact that in the normal course of daily events a Senator’s

staff, without the Senator’s knowledge or involvement, provides many routine constituent services

which by their nature require little or no inquiry into the merits. Furthermore, the fact that a Member may turn out to be wrong as to the merits of a case does not make his or her intervention

unethical. Such mistakes of judgment are between a Senator and his or her constituents.

The manner and degree of intervention also may become improper, according to Senator

Douglas, when a legislator’s conduct implies that a particular decision is not the administrator’s

to make, but has been mandated by the Member. 550

The writings of Senator Douglas helped shape the guidelines applicable to Members of the

House of Representatives in their dealings with administrators. Advisory Opinion No. 1 states that

‘‘[d]irect or implied suggestion of either favoritism or reprisal in advance of, or subsequent to,

action taken by the agency contacted is unwarranted abuse of the representational role.’’ 551

Because the Senate has not had written guidelines in this area as does the House, the Committee recommended on February 27, 1991, that the Senate Rules Committee or a bi-partisan Senate Task Force develop written standards governing Senators’ intervention with the executive

branch on behalf of individuals. On April 16, 1991, the leadership of the Senate appointed six

Members to undertake this task. Until such time as the Task Force has finished its work and the

Senate has adopted specific standards respecting contact or intervention with executive or independent regulatory agencies, all Senators are encouraged to use House Advisory Opinion No. 1

as a source of guidance for their actions. [NOTE: As noted earlier in this Chapter, the work of

the Task Force was completed, and the Senate has now adopted Senate Rule 43.]

3. Intervention on Behalf of Contributors

As the Keating case has demonstrated, special issues of ethics and propriety are raised when

Members intervene in a particular matter before a federal agency on behalf of an individual who

is a contributor to or fundraiser for their campaigns or other causes.

Under our current system of campaign finance, candidates are required to rely upon numerous

individuals and organizations to contribute or raise substantial sums of money, and it is likely that

some of those individuals will at some point request assistance from their elected representatives.

In light of this systemic condition, Members justifiably ask for guidance on how to avoid fundraising or constituent service practices that are improper, or that appear to be improper. Senator

Douglas’ advice on this problem was:

It is probably not wrong for the campaign managers of a legislator before an election

to request contributions from those for whom the legislator has done appreciable favors,

but this should never be presented as a payment for the services rendered. Moreover,

the possibility of such a contribution should never be suggested by the legislator or his

staff at the time the favor is done. Furthermore, a decent interval of time should be allowed to lapse so that neither party will feel that there is a close connection between

the two acts. Finally, not the slightest pressure should be put upon the recipients of the

favors in regard to the campaign. 552

The Committee wishes to make clear that constituent service, even for contributors, is a legitimate and appropriate senatorial function. There are limits, however, to what constitutes appropriate

conduct in this regard.

The cardinal principle governing Senators’ conduct in this area is that a Senator and a Senator’s office should make decisions about whether to intervene with the executive branch or indeVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00197 Fmt 5222 Sfmt 5222 SMANUAL.008 ETHICS1 PsN: ETHICS1
184 SENATE ETHICS MANUAL

553 See House Advisory Opinion No. 1. 554 S. Res. 266, 90th Cong. 2d Sess. (1968). The Committee’s sources of subject matter jurisdiction include S. Res.

266. Senate Select Committee on Ethics, 103d Cong., Rules of Procedure, Part III (rev. 1993) (S. Prt. No. 103–13)

(‘‘Rules of Procedure’’). 555 Id. 556 H.R. Rep. No. 77, 42nd Cong., 3d Sess. X (1873), reprinted in Cong. Globe, 42nd Cong., 3d Sess. 1462–66

(1873). 557 Id. at 170. 558 House Advisory Opinion No. 1 at 170.

pendent agencies on behalf of an individual without regard to whether the individual has contributed, or promised to contribute, to the Senator’s campaigns or other causes in which he or she

has a financial, political or personal interest. 553 Senators should make reasonable efforts to ensure

that they and their staff members, including campaign staff, conduct themselves in accordance with

this principle.

This principle is consistent with Senate Resolution 266, which admonishes Members that ‘‘[a]

public office is a public trust’’ and states that each Senator ‘‘has been entrusted with public power

by the people; that the officer holds this power in trust to be used only for their benefit and never

for the benefit of himself or a few.’’ 554

4. The Appearances Created by Conduct

The American people rightfully expect that Members of the Senate will use the power entrusted to them by the people of their states, and by virtue of the office of trust which they hold,

only for the public good and never for their own benefit or the benefit of a few. 555 Citizens’

respect for, and thus adherence to, the law will decline if they lose respect for their representatives

in government or believe that the governmental process reflects the desires of special interests rather than the public good. 556 As stated in the report of the Special House Committee investigating

the Credit Mobilier scandal more than 100 years ago:

No member of Congress ought to place himself in circumstances of suspicion so that

any discredit of the body shall arise on his account. It is of the highest importance that

the national legislature should be free of all taint of corruption, and it is of almost equal

necessity that the people should feel confident that it is so. 557

Because Senators occupy a position of public trust, every Senator always must endeavor to

avoid the appearance that the Senator, the Senate, or the governmental process may be influenced

by campaign contributions or other benefits provided by those with significant legislative or governmental interests. Nonetheless, if an individual or organization has contributed to a Senator’s

campaigns or causes, but has a case which the Senator reasonably believes he or she is obliged

to press because it is in the public interest or the cause of justice or equity to do so, then the

Senator’s obligation is to pursue that case. In such instances, the Senator must be mindful of the

appearance that may be created and take special care to try to prevent harm to the public’s trust

in the Senator and the Senate. This does not mean, however, that a Member or employee is required to determine if one is a contributor before providing assistance.

House Advisory Opinion No. 1 also recognizes:

Caution should always be exercised to avoid the appearance that solicitations of

campaign contributions or the receipt of gifts or entertainment from constituents are connected in any way, as a quid pro quo, with a legislator’s intervention in the administrative process on behalf of a constituent. 558

During the course of the hearings in the Keating matter, several lawmakers, Senate employees

and former public officials described the practices they followed in order to ensure that their fundraising activities were above reproach. The Committee notes that a number of Senators have instituted practices to strictly separate fundraising from substantive legislative or constituent casework

activities.

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The Committee does not endorse or require any specific procedures and does not seek to elevate form over substance. There are a variety of ways a Member may avoid engaging in improper

conduct and minimize the possibility that his or her conduct will create an appearance of impropriety.

5. Guidance for Future Conduct

During the time that the Committee had the Keating matter before it, the Committee had the

opportunity to review the sources discussed above and to consider at length the issue of the propriety of interventions with a federal agency on behalf of an individual who has made or raised

significant political contributions. Based on this experience, the Committee suggests that until written guidelines have been adopted, a Member who has any reasonable doubt about whether to proceed in a particular matter consider the following issues:

The merits of the constituent’s case.

The continuing viability of the constituent’s claim. If the constituent’s claim initially appeared to have merit, has the Senator acted despite facts or circumstances that later undermined the merits of that claim?

The kind of agency involved and the nature of its proceedings. Is the agency performing

in a quasi-judicial, adjudicative or enforcement function?

If the Senator or staff member knows that an individual is a contributor, the following issues

should also be considered. (If the Senator or staff member does not know if an individual is a

contributor, he or she is not required or encouraged to find out. Most Senate staff members are

not provided with information regarding contributions and are unaware of whether an individual

seeking assistance is a contributor.)

The amount of money contributed. Has the contributor given or raised more than an average contribution?

The history of donations by a contributor. Has the constituent made contributions to the

Senator previously?

The nature and degree of the action taken by the Senator. To what extent does the action

or pattern of action deviate from that Senator’s normal conduct?

The proximity of money and action. How close in time is the Senator’s action to his

or her knowledge of or receipt of the contribution(s)?

***********************************

As noted at its beginning, the above is a pertinent excerpt from the Committee’s report issued

at the conclusion of the Keating matter in 1991. At that time, it was provided as interim advice

pending issuance of written guidance by the Senate. Rule 43 has subsequently been adopted by

the Senate on the subject of intervention with Federal executive agencies. Although the Senate

Rule now provides written guidance from the Senate on the subject of interventions, the Committee’s discussion (set out immediately above) is consistent with Senate Rule 43, and continues to

be a useful aid in making decisions on the appropriateness of planned interventions.

***********************************

HATCH ACT: LETTERS OF RECOMMENDATION

In 1993, Congress passed the Hatch Act Reform Amendments, which prohibited Members of

Congress and congressional employees from making certain recommendations or statements regarding personnel actions for non-political federal employment. The previous law had simply prohibited executive branch officials making personnel decisions from receiving or considering recommendations from Members of Congress, except as they related to the character or residence

of the individual.

The 104th Congress, in a provision included in the Legislative Branch Appropriations Act for

fiscal year 1997, has reinstated the old law, thus removing the prohibitions against Members of

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Congress or staff making recommendations regarding executive branch personnel decisions. The

law (Title 5 United States Code Section 3303) as of October 16, 1996 now reads as it did before

the 1993 amendments:

‘‘An individual concerned in examining an applicant for or appointing him in the competitive

service may not receive or consider a recommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant.’’

The 104th Congress has also amended Title 5 U.S.C. Section 2302(b)(2) to provide that employees in the Executive Branch may consider any recommendation or statement, oral or written,

with respect to any individual who requests or is under consideration for any personnel action [if]

such recommendation or statement is based on the personal knowledge or records of the person

furnishing it and consists of—

‘‘(A) an evaluation of the work performance, ability, aptitude, or general qualifications

of such individual; or

(B) an evaluation of the character, loyalty, or suitability of such individual.’’

Therefore, it appears that Executive Branch employees may consider a statement made by a

Member in connection with a personnel action, if it is based on the Member’s personal knowledge

or records, as it pertains to work performance, ability, aptitude, character, loyalty, suitability, or

general qualifications of the person under consideration.

Thus, it appears that Members are now free to write a letter on behalf of or relating to a

person who is applying or under consideration for a position, or who is up for promotion in the

Executive Branch, and to include any information bearing on the suitability of the person for the

position. It also appears that Executive Branch employees may take such a letter into consideration

only if it is based on the Member’s personal knowledge or records.

In contrast, restrictions and prohibitions substantially identical to those in the 1993 Hatch Act

Reform Amendments continue to prohibit recommendations made in connection with personnel decisions by the United States Postal Service. (See Title 39 United States Code Section 1002.)

CHAPTER 8 187

MAY 1,1997

LETTERS OF RECOMMENDATION: OPM GUIDANCE

Dear Colleague:

You may find useful the enclosed guidance from the Office of Personnel Management (OPM)

on the recent amendment to the Hatch Act that removed the prohibitions against Members of Congress or staff making recommendations regarding executive branch personnel decisions for competitive service positions. The OPM guidelines appear generally consistent with the Committee’s

earlier advice on the amendment contained in an October 16, 1996 dear colleague letter. As a

result of the amendment, which reinstates prior law, Members are now free to write a letter on

behalf of or relating to a person who is applying or under consideration for a position, or who

is up for promotion in the Executive Branch, and may include any information bearing on the

suitability of the person for the position. However, Executive Branch employees may only be able

to take such a letter (whether in the form of a recommendation or a statement) into consideration

if it is based on the Member’s personal knowledge or records, or if the recommendation is limited

to the applicant’s character and residence.

We hope that this information is helpful.

Sincerely,

Bob Smith

Chairman

Harry Reid

Vice Chairman

188 SENATE ETHICS MANUAL

Honorable Robert Smith

Chairman

Committee on Ethics

United States Senate

Washington, D.C. 20510

Dear Mr. Chairman:

The Legislative Branch Appropriation Act for fiscal year 1997 (Public Law 104–197) amended

section 3303 of title 5, United States Code, by reinstating prior law relating to Congressional recommendations on certain personnel decisions in the Executive Branch. Public Law 104–197 also

amended a related provision, 5 U.S.C. § 2302(b)(2), by reinstating prior law concerning the consideration of recommendations or statements about individuals who request, or are under consideration for, any personnel action. The Office of Personnel Management has prepared the guidance

in the form of answers to questions that we think are likely to arise. We are making this guidance

available to the heads of Executive Branch departments and agencies, and would like to share it

with you as well.

If you or your staff have any questions or comments about this guidance, we would be pleased

to further discuss this issue. Please feel free to contact my Director of the Office of Congressional

Relations, Cynthia Brock-Smith, at 202 606–1300.

Very truly yours,

James B. King

Director

CHAPTER 8 189

MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND

AGENCIES

FROM: JAMES B. KING - DIRECTOR

SUBJECT: Political Recommendations for Federal Jobs

The Hatch Act Reform Amendments of 1993 (Reform Amendments) placed restrictions on political recommendations for Federal jobs with the exception of political appointments. The Legislative Branch Appropriations Act for fiscal year 1997 (Public Law 104–197) amends section 3303

of title 5, United States Code, by reinstating the prior law relating to Congressional recommendations on certain personnel decisions in the Executive Branch. Public Law 104–197 also amends

a related provision, 5 U.S.C. § 2302(b)(2), by reinstating the prior law concerning the consideration of recommendations or statements about individuals who request, or are under consideration

for, any personnel action. The Office of Personnel Management has prepared the following guidance in the form of answers to questions that we think are likely to arise in dealing with application of these two amended provisions.

Does the new law prohibit Members of Congress, Congressional employees, elected State or

local government officials, or political party officials from making political recommendations? No, it focuses on the solicitation, receipt, or consideration of certain recommendations by

Executive Branch officials. While the new law no longer specifically prohibits Members and others

from making political recommendations, a recommendation that is not consistent with the new law

could cause an official, who is concerned with examining or appointing, to be in violation of the

law. In no circumstances should such an official actually consider any recommendation which is

in violation of the law. Agencies covered by the new law should make every practicable effort

to ensure that officials who are concerned with examining and appointing do not actually receive

political recommendations that are inconsistent with the new law. This might be accomplished by

preliminary review in the correspondence control process, through congressional relations offices,

or through review by offices of counsel.

Does the new law require Executive Branch officials to return political recommendations to

the sender? The new law does not require these officials to return a political recommendation

to the person who sent it.

Does the new law also apply to the United States Postal Service? No. A separate law, 39

U.S.C. § 1002, still applies to political recommendations concerning applicants for positions with,

and employees of, the United States Postal Service.

Does the new law apply to oral as well as written recommendations? Yes.

Who is subject to the prohibitions in the amended 5 U.S.C. § 3303? Executive Branch officials

who have the authority to examine applicants for, or appoint individuals to, positions in the competitive service are subject to these prohibitions.

What does the amended section 3303 prohibit? It prohibits individuals concerned in appointing

or examining officials from receiving or considering a recommendation from a Member of Congress concerning an individual who has applied for a competitive service position, except as to

the character or residence of the applicant. A competitive service position is defined in 5 U.S.C.

§ 2102.

190 SENATE ETHICS MANUAL

Does the amended section 3303 permit appointing and examining officials to consider any

recommendations from Members of Congress? Section 3303 permits such officials to receive

and consider Congressional recommendations concerning the character or residence of applicants

for competitive service positions. (Example: ‘‘I have known Mary Smith, a resident of my State,

for many years, and she is a very fine person. She has always been reliable, and shown good

judgment and integrity. She is very highly regarded in the community.’’) A recommendation under

section 3303, which is limited to the applicant’s character or residence may not, however, discuss

the qualifications of an applicant or assess the applicant’s suitability for employment with a particular agency or in a particular job. A communication that includes a request that a covered official consider an applicant for specific employment would violate 3303. (Example: ‘‘I have known

Mary Smith, a resident of my state, for many years and she is a fine person of good moral character. I would like you to consider her for the currently vacant position of policy analyst in your

office.’’) In addition, OPM recommends against any communication that requests employment consideration even where such request is general in nature, as such a communication goes beyond

a statement of character and residence. (Example: ‘‘I have known Mary Smith, a resident of my

State, for many years and she is a fine person of good moral character. Please consider her for

appointment, in accord with applicable civil service procedures.’’) Consistent with the additional

guidance set forth below, recommendations or statements from Members of Congress based on

actual personal knowledge of the applicant’s work performance and qualifications may be acceptable under section 2302(b)(2).

What positions are subject to the amended section 3303? Section 3303 applies to positions in

the competitive service, including Administrative Law Judges. Section 3303 does not apply to excepted service positions, as defined in 5 U.S.C. § 2103.

What does 5 U.S.C. § 2302 describe and who is subject to the amended section 2302(b)(2)?

Section 72302 describes prohibited personnel practices and section 2302(b)(2) applies to Executive

Branch officials who have the authority to take, direct others to take, recommend, or approve any

personnel action.

What does ‘‘personnel action’’ mean? The definition of ‘‘personnel action’’ in section

2302(a)(2)(A) includes appointments; promotions; disciplinary or corrective actions; details; transfers; reassignments; restorations; re-employments; some performance evaluations; decisions about

pay, benefits, or certain awards concerning education or training; decisions ordering psychiatric

tests or examinations; or, any other significant changes in duties, responsibilities, or working conditions of an individual.

What does the amended section 2302(b)(2) prohibit appointing and examining officials from

doing? Section 2302(b)(2) prohibits them from soliciting or considering oral or written recommendations or statements about an individual who requests, or is under consideration for, any

personnel action, unless the recommendation or statement fulfills the requirements in that section.

What kind of recommendation or statement does the amended section 2302(b)(2) permit

these officials to solicit or consider? They may ask for, or consider, a recommendation or a statement based on the personal knowledge or records of the person furnishing the recommendation

or statement. Additionally, the recommendation or statement must consist of an evaluation of an

individual’s: (1) work performance, ability, aptitude, or general qualifications; or (2) character, loyalty, or suitability.

CHAPTER 8 191

Is the amended section 2302(b)(2) limited to personnel actions affecting competitive service

employees? No, it applies to covered positions as defined in section 2302(a)(2)(B), including any

position in the competitive service, all career SES and Administrative Law Judge positions, and

any position in the excepted service which has not been excepted from the competitive service

because of its confidential, policy-determining, policy-making, or policy-advocating character.

Does the new section 2302(b)(2) apply to personnel actions that affect political appointees or

individuals seeking political appointments? No, consistent with section 2302(a)(2)(B)(I), applicants for and employees in ‘‘political’’ positions such as those under Schedule C or the non-Career

SES are not covered by section 2302(b)(2). It should be noted, however, that where the political

appointee is an incumbent of a position with authority to take, direct others to take, recommend,

or approve any personnel action, concerning covered positions, that political appointee becomes

subject to section 2302(b)(2) and can be in violation of the statute for soliciting or considering

a recommendation that is inconsistent with this law. For example, a Member of Congress or a

representative of a political party could recommend someone for a political position (one covered

by Schedule C or the non-career SES) and the potential appointing official receiving that recommendation could consider it without violating 2302(b)(2). However, a political appointee with

authority to fill a competitive service position cannot solicit or consider a recommendation that

does not meet the requirements of section 2302(b)(2).

May agency officials consider Congressional recommendations that meet the requirements of

section 2302(b)(2) when section 3303 states that these officials are prohibited from receiving

or considering such recommendations (except as to character or residence)? Yes. Section

2302(b)(2) permits agency officials to solicit or consider a recommendation or statement from anyone (including a Member of Congress) when the recommendation or statement consists of an evaluation concerning an individual’s work performance, qualifications, ability, aptitude, character, loyalty, or suitability and it is based on the sender’s personal knowledge or records. Because Congress

amended sections 3303 and 2302(b)(2) in the same law, both provisions should be read together

to avoid conflict and achieve a harmonious result. Accordingly, agency officials may solicit and

consider recommendations from Members of Congress that meet the specific criteria described in

section 2302(b)(2). If, however, recommendations from Members of Congress do not meet the criteria in section 2302(b)(2), such recommendations fail under section 3303 and should be treated

under the guidance set forth above dealing with that newly amended section of law.

What if a communication meets the requirements of section 2302(b) but also includes a specific political recommendation. (Example: ‘‘I know Mary Smith’s work from when she was

employed in my office. She is an outstanding employee, has extensive technical skills, is a

loyal and hardworking employee, and is also a long standing member of my political party

and frequently contributes to its causes.’’) Can the recommendation be solicited or considered? No. Reading Section 3303 and 2302(b) together, it is clear that Congress did not want consideration for personnel actions to be unduly or unfairly influenced by references to political affiliation or membership. Communications that include direct or specific references to political affiliation or membership are inconsistent with that intent, as evidenced by section 2302(b)(1)(E),

which, among other factors, makes it a prohibited personnel practice to discriminate for or against

any employee or applicant on the basis of political affiliation. Absent such political affiliation or

membership references, communications that otherwise meet the requirements of section

2302(b)(2) are acceptable. Uncertainty as to the legality of any specific communication should be

referred to our office of counsel for review.

For further details about these new rules, you should consult the law itself, 5 U.S.C. §§ 3303

and 2302(b)(2), as amended by section 315 of Public Law 104–197, 110 Stat. 2394, 2416.

(192)

Chapter 9: EMPLOYMENT PRACTICES

Introduction ......................................................................................................................... 193

Congressional Accountability Act ....................................................................................... 193

Senate Anti-Discrimination Rule ....................................................................................... 194

Nepotism Statute ................................................................................................................. 195

Personal Activities with Appropriated Funds ................................................................... 196

193

Chapter 9

EMPLOYMENT PRACTICES

INTRODUCTION

Historically, the general terms, conditions, and specific duties of Senate employees were within the discretion of the employing Members or committees. Nonetheless, certain general principles

applied to all Senate employees: Senate employees were paid with public funds to perform official

duties on Senate time, not personal, campaign, or other non-official activities; and Senate facilities

were not to be used for non-official activities.

Since 1979 the Senate’s anti-discrimination Rule (Senate Rule 42) has prohibited any Member,

officer, or employee of the Senate from discriminating on the basis of race, color, religion, sex,

national origin, age, or disability in hiring and employment decisions. Beginning in 1991, the Government Employee Rights Act (GERA) applied a number of anti-discrimination statutes to employees of the Senate, and established a procedure for enforcement, including the right to appeal to

Federal Court. In 1995, Congress passed the Congressional Accountability Act, which supersedes

the GERA, and applies eleven civil rights, labor and other workplace laws to employees of the

legislative branch, including the Fair Labor Standards Act of 1938; Title VII of the Civil Rights

Act of 1964; Americans with Disabilities Act of 1990; Age Discrimination in Employment Act

of 1967; the Family and Medical Leave Act of 1993; and the Occupational Safety and Health

Act of 1970. The CAA establishes a procedure outside the Senate for relief for violations of these

statutes. Passage of the CAA did not, however, affect the Committee’s separate and independent

authority to discipline a Member, officer, or employee of the Senate for a violation of Senate Rule

42.

This chapter on employment practices includes a short notice on the CAA, a brief history

of anti-discrimination rules in the Senate, a discussion of the anti-nepotism law, and a discussion

of the prohibitions on personal use of staff by Members and on staff personal use of government

facilities and equipment.

CONGRESSIONAL ACCOUNTABILITY ACT

In the first two weeks of the 104th Congress, the House and Senate completed action on the

Congressional Accountability Act of 1995 (CAA) (Pub. L. No. 104–1, 109 Stat. 3) and sent the

measure to President Clinton, who signed the bill into law. The Act applies eleven civil rights,

labor, and workplace laws to employees of the legislative branch of the federal government, and

establishes remedies and procedures for aggrieved employees in instances of violations of the laws.

Some of the eleven laws had previously been extended to certain employees of the legislative

branch, but the CAA expanded the scope of employees covered by the laws and granted, as specified in the Act, a right of judicial review to all covered employees. Enforcement authority under

the CAA is vested in the Office of Compliance, to be headed by a five-member Board of Directors.

The CAA states that ‘‘the following laws shall apply, as prescribed by this Act, to the legislative branch of the Federal Government’’: Fair Labor Standards Act of 1938; Title VII of the Civil

Rights Act of 1964; Americans with Disabilities Act of 1990; Age Discrimination in Employment

Act of 1967; Family and Medical Leave Act of 1993; Occupational Safety and Health Act of

194 SENATE ETHICS MANUAL

559 S. Rep. No. 95–49 at 14. 560 S. Res. 338, 88th Cong., 2d. Sess. (1964), as amended by S. Res. 110 (1977). 561The Civil Rights Act of 1991 was created by P.L. 102–166, 105 Stat. 1008. The procedures for the Office of

Senate Fair Employment Practices (OSFEP) created by Title III of the Civil Rights Act of 1991 were modified five

1970; Chapter 71 of Title 5, U.S. Code (relating to federal service labor-management relations);

Employee Polygraph Protection Act of 1988; Worker Adjustment and Retraining Notification Act;

Rehabilitation Act of 1973; and Chapter 43 of title 38, U.S. Code (relating to veterans’ employment and re-employment). The Act also calls for a study by the Board of provisions of federal

law relating to the terms and conditions of employment and access to public services and accommodations. The Board is to recommend to Congress whether provisions that are inapplicable to

the legislative branch should be amended to encompass the legislative branch.

The rights under the various laws extended to the legislative branch become effective one year

after the date of enactment of the CAA (i.e., January 23, 1996), except the Federal Labor-Management Relations Statute, which becomes effective on October 1, 1996, and the Occupational Safety

and Health Act and the public services and accommodations provisions of the Americans with

Disabilities Act, which become effective on January 1, 1997. Some of the laws applied by the

CAA were previously extended to the House and Senate, and transition provisions of the CAA

govern the procedure for some claims that may arise prior to the date that certain laws are applied

pursuant to the terms of the CAA.

For additional information regarding the Congressional Accountability Act contact the Office

of Compliance, Room LA 200, John Adams Building, 110 Second Street, S.E., Washington, D.C.

20540.

SENATE ANTI-DISCRIMINATION RULE

Senate Rule 42, captioned Employment Practices, states:

No Member, officer, or employee of the Senate shall, with respect to employment by the Senate or any office thereof—

(a) fail or refuse to hire an individual;

(b) discharge an individual; or

(c) otherwise discriminate against an individual with respect to promotion,

compensation, or terms, conditions, or privileges of employment on the basis of

such individual’s race, color, religion, sex, national origin, age, or state of physical handicap.

The first anti-discrimination Rule, S. Res. 534, was adopted by the Senate in 1976, and it

prohibited any Member, officer, or employee of the Senate from discrimination in hiring and terminating employees on the basis of ‘‘race, color, religion, sex, national origin, or state of handicap.’’ In 1977, the Senate adopted S. Res. 110 which contained rules to govern the conduct of

Members, officers, and employees, and included the provisions of S. Res. 534. The report on S.

Res. 110 specifically stated that the Civil Rights Act of 1964 and related statutes did not apply

to the Congress. 559 The new anti-discrimination rule, which today is Rule 42, was adopted in

1977, but did not go into effect until January 3, 1979.

Until 1991, alleged acts of discrimination in the Senate were within the exclusive jurisdiction

of the Ethics Committee pursuant to Rule 42. 560 Before 1991, in the context of Rule 42’s provisions barring discrimination, there was considerable uncertainty as to whether, or to what extent,

the Ethics Committee had authority to prescribe or recommend remedial relief in a case where

an individual suffered harm due to prohibited discrimination.

Title III of the Civil Rights Act of 1991 (The Government Employee Rights Act of 1991) 561

established a Senate Office of Fair Employment Practices and created a procedure for providing

CHAPTER 9 195

times by the Senate. The Family and Medical Leave Act of 1993 (FMLA) augmented OSFEP responsibilities by providing that violations of FMLA could also be raised in the Title III process.

remedial relief for individuals subjected to discriminatory practices. Title III enumerated a fourstep internal enforcement procedure; defined a 180-day limitation on bringing a claim before the

Senate Office of Fair Employment Practices; and authorized judicial review by the U.S. Court of

Appeals for the Federal Circuit. Additionally, the Government Employee Rights Act reaffirmed

the commitment of the Senate to Senate Rule 42, and specified that the Senate Ethics Committee

retained its authority under S. Res. 338 to take or recommend disciplinary action against a Member, officer, or employee of the Senate for a violation of that rule.

In January 1995, President Clinton signed into law the Congressional Accountability Act of

1995 (CAA). As noted above, this bill applies eleven civil rights, labor, and other workplace laws

(some of which had been previously extended to certain legislative branch employees) to employees of the legislative branch, and establishes remedies and procedures for prosecution of violations

of those laws.

The Ethics Committee’s authority to recommend discipline of a Member, officer, or employee

of the Senate is not affected by passage or implementation of the Congressional Accountability

Act. Thus, it is possible that a complaint under Rule 42 could be filed with the Committee before,

simultaneously with, or during a proceeding under the Congressional Accountability Act. Proceedings of the Committee on a complaint alleging a violation of Rule 42 would be governed

by the Committee’s Rules of Procedure.

NEPOTISM STATUTE

The anti-nepotism law, 5 U.S.C. 3110, provides a general prohibition against all Federal officials, including Members, officers, and employees of the Senate, from appointing, employing, promoting, or advancing, or recommending for appointment, employment, promotion or advancement

any ‘‘relative’’ of the official to any agency or department over which the official exercises authority or control. The full text of the statute is set out in Appendix D of this Manual which provides the text of certain Federal Ethics Laws. Noting that it is without express authority over the

anti-nepotism statute, the Committee has nonetheless provided advice to Senate Members, officers,

and employees about the statute. Thus, anyone with a question about application of the statute

in the Senate should feel free to contact the Committee for advice.

The definition of ‘‘relative’’ in this statute is very specific, and it is generally understood that

only an individual named in the statute will be deemed a ‘‘relative.’’ See, Lee v. Blount, 345

F. Supp. 585 (1972). Thus, for example, the term ‘‘nephew’’ as used in the statute would not

include the son or daughter of the brother or sister of the official’s spouse. While the Committee

has acknowledged this result as a matter of law (see Interpretative Ruling 343), it has also cautioned that hiring such an individual could create appearance concerns and advised the hiring official that such appearances should be considered in making any such hiring decision. See also Interpretative Ruling 215 regarding hiring the son of a cousin of the official’s spouse.

In Interpretative Ruling 107, the Committee concluded that the entire Senate should be treated

as a single ‘‘agency or department’’ for purposes of the statute. Thus, for example, a Member

who advocated the hiring of his or her relative any place within the Senate would cause the relative to come within the prohibition of the statute.

An employee who becomes related to his or her employing official may remain employed

by the related official. The employing official would be prohibited from providing any raise, promotion, or advancement for the related employee, however, except for across-the-board adjustments such as cost-of-living.

196 SENATE ETHICS MANUAL

On a number of occasions, the Committee has advised that it is permissible for a Senator

to hire the spouse or other relative of one of his staff members, provided the staff member has

no input on the decision to appoint, employ, promote or advance his or her spouse or relative.

PERSONAL ACTIVITIES WITH APPROPRIATED FUNDS

Under federal law, appropriated funds may only be used for the purposes for which they were

appropriated (31 U.S.C. 1301(a)). Funds are appropriated to compensate Senate employees for the

performance of Senate duties. That is, Senate staff are compensated for the purpose of assisting

Senators in their official legislative and representational duties, and not for the purpose of performing personal or other non-official activities for themselves or on behalf of others.

On at least one occasion, a Congressman has been convicted of fraud under 18 U.S.C. 1001

for having an individual on the Congressional payroll when the individual did not regularly perform official congressional duties, but rather performed personal activities on behalf of the Congressman (the employee provided services to the Congressman’s private business). See United

States v. Diggs, 613 F.2d 988 (D.C. Cir. 1979). Unlike Senators, House Members must certify

each pay period that the employees receiving pay actually performed assigned official duties. Although 18 U.S.C. 1001 was subsequently held not to apply to the legislative branch, the 104th

Congress passed the False Statements Penalty Restoration Act, which makes it clear that Title 18

United States Code Section 1001 applies to all three branches of the government, including Congress. Several Congressmen and congressional staffers have also been prosecuted in salary kickback schemes under 18 U.S.C. 1001.

More recently, Congressman Rostenkowski was indicted on charges that he, among other

things, converted government funds to personal use (18 U.S.C. 641) in connection with the provision of personal services by individuals on the congressional payroll. See, D.D.C., Crim. #94–

0226, Count 8 of 17. The bulk of this count of the indictment was upheld on appeal (United

States v. Rostenkowski, 59 F.3d 1291 (D.C.Cir. 1995)); however, this and other counts were

ultimately dismissed as part of a plea agreement wherein Congressman Rostenkowski pled guilty

to two counts of mail fraud. Finally, federal government employees have also been convicted

under 18 U.S.C. 641 for converting Government property to their own personal use. See, for example, United States v. Collins, 56 F.3d 1416 (D. C. Cir. 1995), affirming an employee’s conviction of conversion for the use of office copier paper for personal purposes.

(197)

APPENDIX A

198

Interpretative Rulings of the Select Committee on Ethics

INTERPRETATIVE RULING NO. 3

Date Issued: May 5, 1977

Applicable Rule: 41

QUESTION CONSIDERED:

May Senate staff, while on leave, attend and participate as host, in a fundraising event to be held on behalf of a

Senator in his state?

RULING:

No provision of the Code of Official Conduct prohibits staff from attending a campaign fundraising event outside

office hours or while on vacation leave. Under Rule 41, paragraph 1, however, a Senate staff member may not

receive, solicit, be the custodian of or distribute campaign funds unless he or she is one of the two assistants

specifically designated for those purposes. In order to stay well within the spirit and letter of the Rule, staff who

are not so designated and who attend such an event should not collect funds or sell tickets or otherwise

participate in the fundraising aspects of the event.

Since 18 U.S.C. 602 prohibits staff from making a monetary campaign contribution to a Member of Congress, the

participating staff should not attend as paying guests.

Regarding guidelines as to campaign participation by staff after hours or while on annual leave, this Committee

has stated that Senators should encourage staff to remove themselves from the payroll for periods during which

they expect to be heavily involved in campaign activities. Routine participation after hours or on annual leave

time is not now prohibited by the Code of Conduct.

[Note: As amended in 1979, the law (now 18 U.S.C. 603) prohibits contributions only to the contributor’s

’’employer or employing authority.’’ See Interpretative Ruling 301, February 21, 1980.]

INTERPRETATIVE RULING NO. 5

Date Issued: May 11, 1977

Applicable Rule: 41

QUESTION CONSIDERED:

To what extent may Senate employees volunteer time after office hours or while on annual leave to assist in

political fundraising events for Members and candidates for election to the Senate?

RULING:

While as a general rule, the Committee has advised Members to remove from the Senate payroll staff who

participate for any extended period in such activities, the code of Official Conduct was not intended to prohibit

routine matter performed outside of working hours such as making follow-up telephone calls on behalf of the

sponsoring organization to determine projected attendance at the event; helping the sponsoring organization make

arrangements for flowers, food, and entertainment; and serving on a committee of hosts or hostesses at the time

of the event, not as a sponsor, but simply to mingle with the guests on behalf of the sponsoring group.

Unless the employee is one of the two assistants specifically so designated, he or she may not receive, solicit, be

the custodian of, or distribute any campaign funds. Accordingly, care must be taken to avoid involvement in those

functions.

[NOTE: Senate Rule 41.1 has been amended to permit a Member to appoint up to three assistants as political

fund designees, at least one of whom is in the Washington, D.C. office. The Rule was also amended to permit

the Majority Leader and the Minority Leader to each designate an employee of their respective leadership office

staff as one the three designees. Such designation shall be made available for public inspection by the Secretary

APPENDIX A 199

of the Senate].

INTERPRETATIVE RULING NO. 17

Date Issued: May 23, 1977

Applicable Rule: 35

QUESTION PRESENTED:

Does any arrangement between a Senator and various artists, under the aegis of the Department of Cultural

Resources of his state, for the loan, use of, and exhibition of their products in his Senate office violate the Code

of Conduct?

RULING:

The Committee report on S. Res. 110, (#95–49, 95th Congress, lst Session, p. 35) states that:

The Committee took notice of this historical practice followed in some offices of making home state products, of

minimal value, available to constituents and others who visited the office. Such products are most often in the

form of food and beverages, such as apples, peanuts, coffee and orange juice. Obviously, these products are

provided by businesses back in the Senator’s home state, and some of the individuals or organizations involved in

providing them may fall within the definition of those with a ‘‘direct interest in legislation.’’ Nevertheless, the

Committee felt that this time-honored tradition did not involve any conflict of interest and provision of home state

products, for this type of distribution, should not be regarded as a gift to the Senator or the office since it is

passed on to those visiting the office.

The use of the loaned artwork would fall within the time-honored tradition of the Senate referred to above. The

value to the Senator is de minimus, and, consequently, the arrangement is not a ‘‘gift’’.

[NOTE: The new Senate Gifts Rule, effective January 1, 1996, excludes from the gift rule restrictions ‘‘donations

of products from the State that the Member represents that are intended primarily for promotional purposes, such

as display or free distribution, and are of minimal value to any individual recipient.’’ See Rule 35, 1(c)(12). The

gifts rule and Committee Rulings 386 and 444 thus would permit Senators to take home state products (office

furnishings and artwork) on loan from a home state producer or distributor of that product where the product is

loaned to the Senator for display in his Senate office and returned to the lender upon his leaving the Senate if

not before. Under Committee rules, a Member should write the Committee describing the loan situation. A copy

of the Member’s letter and the Committee’s response is retained in the Committee’s files and made available to

the public as set forth in I.R. 386]

INTERPRETATIVE RULING NO. 22

Date Issued: May 26, 1977

Applicable Rule: 41

QUESTION CONSIDERED:

May Senate staff solicit, receive, or distribute funds for a campaign organization, and during off hours, participate

in party activities which may include fundraising efforts?

RULING:

Rule 41 provides that two staff assistants may be designated by a Senator to solicit, to be the custodians of, or to

distribute funds in connection with a campaign, but no other employee of Senator or Senate committee may solicit

funds, (or solicit others to solicit funds on behalf of a Senator) while on the Senate payroll. Staff may be

removed from the payroll to engage in such campaign activities.

It is not intended that Senate employees be barred completely from participation in all political activity. Outside of

Senate office hours staff may assist in planning and making arrangements for fundraisers so long as they do not

become involved with solicitation of funds.

[Note: Senate Rule 41.1 has been amended to permit a Member to appoint up to three assistants as political fund

designees, at least one of whom is in the Washington, D.C. office. The Rule was also amended to permit the

Majority Leader and the Minority Leader to each designate an employee of their respective leadership office staff

as one of the three designees. Such designation shall be made available for public inspection by the Secretary of

the Senate].

200 SENATE ETHICS MANUAL

INTERPRETATIVE RULING NO. 23

Date Issued: May 26, 1977

Applicable Rule: 37

QUESTION CONSIDERED:

May the staff director of a Senate Committee accept appointment to the advisory board of a college interested in

establishing a center which may be eligible for partial federal funding, pursuant to legislation now under

consideration by the committee of which he is staff director?

RULING:

The appointment in question would create the appearance of conflict with the subject’s responsibilities as staff

director of the Committee. While Rule 37 permits Members, officers, and employees to serve in such capacities

for a 501(c) entity if they do not receive compensation therefor, the Committee recommended that, under these

particular circumstances, the staff director not accept the appointment.

INTERPRETATIVE RULING NO. 24

Date Issued: May 26, 1977

Applicable Area: Miscellaneous

QUESTION CONSIDERED:

May a Senator store political documents, such as records and financial statements of past campaigns, in his

Washington office and in federal space provided in his state?

RULING:

The Committee is not aware of any Senate rule or law on these points. Counsel for GSA advises that he knows

of no law or regulation with respect to what may be stored in space under its jurisdiction.

Storage of substantial quantities of such personal and political materials, i.e., bulk storage of materials unrelated to

one’s official duties, would be an improper use of public property. Members are, however, entitled to some

latitude with respect to documents needed for reference purposes or public disclosure. Campaign materials used by

Members for gifts and all such materials that are incidental to the normal business of a Senate office and require

no substantial storage space may be maintained in a Senator’s offices.

INTERPRETATIVE RULING NO. 27

Date Issued: June 7, 1977

Applicable Rule: 37

QUESTION CONSIDERED:

Would a Senate employee’s service in a U.S. Army Reserve Unit as a Chief Warrant Officer (CW2) be

inconsistent with the Senate Code of Official Conduct?

Service normally entails one weekend each month and two weeks active duty each year, with compensation for

each year being approximately $1,710. The employee is a legislative aide to a Senator, although his official duties

do not involve him in the activities of the Armed Services Committee or in any aspect of military reserve affairs

legislation or casework. The employee’s supervising Senator is of the opinion there is no potential conflict.

RULING:

The outside employment, as described above, would not constitute a conflict of interest under Rule 37 or violate

any other provision of the Code. Paragraph 3 of Rule 37 requires an employee to report in writing such outside

employment to his supervisor when it commences and on May 15 of each year that it continues.

INTERPRETATIVE RULING NO. 30

APPENDIX A 201

Date Issued: June 13, 1977

Applicable Rule: 37

QUESTION CONSIDERED:

Must a member of an advisory council to an executive agency, appointed by the President, resign his position on

the council when he becomes a Senate employee? If not, may he accept the $100 per diem paid by the agency

for time spent serving on the council?

RULING:

Paragraph 2 of Rule 37 on Conflicts of Interest prohibits an employee from engaging in outside professional

employment for compensation which conflicts with the performance of official duties. Without knowing either what

the prospective employee’s duties would be, or whether the outside activity would present a conflict, the

Committee cannot advise as to whether a conflict of interest would be presented by the outside employment.

Under Paragraph 3 of Rule 37 the supervisor of an employee who engages in outside professional activity for

compensation is required to ‘‘take such action as he considers necessary for the avoidance of a conflict of interest

or interference with duties to the Senate.’’

The Committee finds nothing in the Rules which would prohibit a Senate employee from serving on such a

council. The Committee points out, however, that the Dual Compensation Act, 4 U.S.C. 5533(c), would appear to

prohibit anyone who is paid a salary by the Secretary of the Senate from being paid for another U.S. Government

position, even if part-time. The Committee does not have responsibility for the enforcement of this Act; it would

be advisable therefore, to refer to the statute and consult with the Disbursing Office on the question.

INTERPRETATIVE RULING NO. 31

Date Issued: June 16, 1977

Applicable Rules: 34 and 35

QUESTION CONSIDERED:

What is the value of a season pass for sporting events for purposes of Rule 35, prohibiting acceptance of gifts

from persons with a direct interest in legislation aggregating more than $100 in a calendar year, and Rule 34,

regarding financial disclosure?

RULING:

The value of a season pass is the full market value at the time it is accepted and is undiminished by failure to

use it or a portion of it. The ticket itself is a gift, if accepted, whether or not it is later exchanged for goods,

service, entertainment or cash.

Thus, if the actual cost of a season ticket is $175 at the time it is given as a gift, then its value for the purpose

of applying the gift and disclosure rules is $175 and may not be calculated on the basis of events actually

attended.

[NOTE: Rule 35, as amended effective January 1, 1996, prohibits a Member, officer or employee of the Senate

from receiving any gift of a value of $50 or more, or gifts from one source (of $10 or more) that aggregate

$100 or more during a calendar year]

INTERPRETATIVE RULING NO. 33

Date Issued: June 28, 1977

Applicable Rule: 37

QUESTION CONSIDERED:

What provisions of the Code of Official Conduct must a full-time aide to a Senator with a salary less than

$25,000 consider in determining whether or not outside employment is proper?

RULING:

The propriety of outside employment is governed by Rule 37. No employee, regardless of salary level, may

receive compensation by virtue of influence improperly exerted. Nor may any employee engage in any outside

business or professional activity or employment for compensation which is inconsistent or in conflict with the

202 SENATE ETHICS MANUAL

conscientious performance of official duties. Any outside employment for compensation must be reported in writing

to the supervising Senator when the employment commences, and thereafter on May 15 of each year. That report

must describe the nature of the employment. The supervising Senator must then take whatever action is

appropriate for the avoidance of conflict of interest or interference with duties to the Senate. That action could, of

course, be a denial of permission to undertake or continue the outside employment.

Employees compensated at more than $25,000 per year are also subject to restrictions on providing professional

services for compensation and on serving as officers or on boards of publicly-held or regulated corporations,

financial institutions or business entities.

INTERPRETATIVE RULING NO. 36

Date Issued: June 28, 1977

Applicable Rule: 37

QUESTION CONSIDERED:

Is it a violation of the Code of Official Conduct for a Senate employee, compensated at more than $25,000 per

annum and who serves as a legislative assistant for agricultural affairs, to be involved in an agriculture related

business? The employee owns a company bearing his name which operates a dairy business and which the

employee is the major shareholder and serves (without compensation) as Chairman and President. The employee’s

sons receive salaries for running the company and the corporation, and the employee receives rental income in

connection with the lease of land to the corporation and may receive dividend income as the principal shareholder

of the corporation.

RULING:

There is no provision of the Code of Official Conduct which would prohibit the employee from remaining on the

Senate payroll. Paragraph 4 of Rule 37 prohibits an employee from aiding the passage of legislation which would

further his pecuniary interest, that of his family or of a limited class of persons or enterprises. The report

accompanying S. Res. 110 (S. Rept. 95–49) states at page 42:

. . . Legislation may have a significant financial effect on a Senator because his holdings are involved, but if the

legislation also has a broad, general impact on his ctate or the nation, the prohibitions (of paragraph 4) would not

apply.

The Report cites the example of a dairy farmer representing a dairy farming state who introduces, works for, and

votes for legislation raising or maintaining dairy price supports. Because there would be a strong presumption that

the Member was working on behalf of the public interest and the needs of his constituents and that his own

financial interest was incidental, the Member would be part of a class affected by the legislation but would not be

a member of a ‘‘limited class’’ for the purposes of paragraph 4 and thus would not fall under the strictures of

the Rule.

With respect to paragraph 6 of Rule 37, which deals with affiliation with a firm, partnership or corporation and

the use of an employee’s name by such an entity, the Report further states that paragraph 6 ‘‘reaches the major

professions in addition to law, such as medicine, engineering, architecture and similar type of activities.’’ These

professions, unlike farming, involve a fiduciary relationship between the practitioner and clients which often would

create a conflict with Senate duties. Accordingly, the Committee finds no violation of Rule 37.

[NOTE: Senate Rule 37.7 states that an employee on the staff of a committee who is compensated at a rate in

excess of $25,000 per annum and employed for more that ninety days in a calendar year shall divest himself of

any substantial holdings which may be directly affected by the actions of the committee for which he works,

unless the Ethics Committee, after consultation with the employee’s supervisor, grants permission in writing to

retain such holdings or the employee makes other arrangements acceptable to the Ethics Committee and the

employee’s supervisor to avoid participation in committee actions where there is a conflict of interest or the

appearance thereof. See IR 147 regarding ‘‘substantial holdings’’]

INTERPRETATIVE RULING NO. 40

Date Issued: July 1, 1977

Applicable Area: Franking

QUESTION CONSIDERED:

Does the regulation prohibiting use of the mailing frank for the mass mailing of a newsletter in which personally

phrased references to a Senator appear more than an average of 8 times per page also apply to reprints of

speeches and other material from the Congressional Record?

APPENDIX A 203

RULING:

Title 39 U.S.C.A 3212 states that reprints from the Congressional Record may be mailed under the frank provided

such material would otherwise be frankable under section 3210. Section 3210 prohibits use of the frank to mail

‘‘personal and political’’ matters. Paragraphs 13 and 14 of the regulations define the personal and political matters

which are not frankable, but do not mention overuse of personal references to a Senator.

Paragraph 4 of the franked mail regulations refers to newsletter and news releases. The number of personal

references which occur on a page has no bearing on the use of the frank for the mailing of frankable material

reprinted from the Congressional Record, when the Record reprint consists of an unedited statement or article. If,

however material from the Record is to be reprinted in a newsletter or other mass mailing and consists of edited

text taken from a statement or article, the ‘‘personal reference’’ restriction would apply.

[NOTE: Under current Committee regulations governing the use of the mailing frank, paragraphs 16 and 17 of

chapter 2 define personal and political matters, respectively]

INTERPRETATIVE RULING NO. 42

Date Issued: July 18, 1977

Applicable Area: Franking

QUESTION CONSIDERED:

May a Senator use the frank to mail a booklet containing matter relating to his or her background and personal

and professional achievements and accomplishments for the state he or she represents and its people?

RULING:

Such a booklet constitutes biographical matter within the meaning of the ‘‘Regulations Governing the Use of the

Mailing Frank.’’ The frank may be used to mail the booklet in response to specific requests for a copy, requests

for biographical material about the Senator, and requests for information about Federal projects and other benefits

obtained by the Senator on behalf of the state and his constituents. The frank may not be used for a mass

mailing of the booklet for any potential political use or during a campaign.

INTERPRETATIVE RULING NO. 44

Date Issued: July 18, 1977

Applicable Rules: 38 and 40

QUESTION CONSIDERED:

May a Senator incorporate computerized address records of voters secured from county election boards in the

Senate’s computerized mailing system for use in producing franked mass mail?

RULING:

Under Regulations of the Committee on Rules and Administration and Rule 40, paragraph 5, the incorporation of

computerized voter address records in the Senate’s computer-maintained mailing lists is permissible, but only if

such lists bear no identification of individuals as campaign workers, contributors, or as members of a political

party, and the lists do not contain any other partisan political information.

The Select Committee on Ethics concludes such records may not be acquired selectively or sorted with the intent

of targeting mailings to likely election supporters. The acquisition and incorporation only of lists selected on the

basis of high incidence of partisan behavior, for example, is not acceptable.

The use of a Senator’s official consolidated allowance to purchase or prepare such records is a matter under the

responsibility of the Committee on Rules and Administration.

INTERPRETATIVE RULING NO. 48

204 SENATE ETHICS MANUAL

Date Issued: August 5, 1977

Applicable Rule: 37

QUESTION CONSIDERED:

May a Senate Subcommittee employ as a consultant and later as its chief counsel, an attorney who plans to leave

the Senate payroll later in the year, temporarily to return to association with his former law firm to argue a case

pending before an appellate court on a subject which is a direct and principal concern of the Subcommittee, and

then upon returning to the Senate payroll, sever his ties with the firm following the appeal proceedings?

RULING:

The employee’s continuing association with the firm for purposes of preparing the appeal while also acting as a

consultant to the Subcommittee (even though he would terminate that association when he becomes chief counsel),

and his continuing obligations to the firm’s client in connection with the appeal, create both the appearance of a

conflict of interest and too great a potential for an actual conflict.

Accordingly, the Subcommittee should not employ the person in question in either capacity until his association

with the firm is terminated and his obligations to the firm’s client have been discharged.

INTERPRETATIVE RULING NO. 49

Date Issued: August 5, 1977

Applicable Rule: 41

QUESTION CONSIDERED:

In what fund-raising activities may Senate employees who are not designated for political activity under Rule 41

participate?

RULING:

An employee who is not a designee under Rule 41 must exercise care to perform only routine political activities

in which he does not directly receive, solicit, as a custodian of, or distribute campaign funds, and to perform

these only in off-duty hours.

The Rule 41 prohibition of political fund activity by other than designated staff applies to duty hours, off-duty

hours and vacation leave.

INTERPRETATIVE RULING NO. 54

Date Issued: August 30, l977

Applicable: Rule 37

QUESTION CONSIDERED:

May a professional staff member accept a position as a Consumer Representative on a local government council

which has an interest in legislation under the jurisdiction of the Committee on which he serves?

RULING:

In the present case the local government council had an active interest in legislation pending before the

Committee that employed the staff member. The council was also active in attempting to have its views on

pending legislation considered.

Rule 37 states, that no Member, officer, or employee may engage in any outside business or professional activity

or employment for compensation which is inconsistent or in conflict with the conscientious performance of Senate

duties. Although the service here is without compensation and thus not explicitly prohibited by the Rule, the

Committee is of the opinion that service on the council by this Committee staff member would create the

appearance of a conflict with his Committee staff responsibilities. Consequently, the Committee advised that the

staff member not serve on the council.

INTERPRETATIVE RULING NO. 55

APPENDIX A 205

Date Issued: September 7, l977

Applicable Rule: 37

QUESTION CONSIDERED:

May a full-time Senate employee who is employed in a Member’s State office, also serve as a City Council

member at a salary of less than $200 per month?

RULING:

Under Rule 37, no Member, officer, or employee of the Senate may engage in any outside business or

professional activity or employment for compensation which is inconsistent or in conflict with the conscientious

performance of official duties. Paragraph 3 of Rule 37, places the burden of ensuring that no conflict arises on

the employee’s supervisor. Under the facts of this case, the Committee found the supervisor had properly

evaluated the situation. The Committee noted that city council service by this employee was unlikely to present

any conflicts with his full-time position as a Senator’s press relations coordinator.

[NOTE: The Committee has ruled that holding local or state elected office does not violate Senate Rule 37.6 (b),

which prohibits a Member, officer, and employee compensated at a rate above $25,000 and employed for more

than 90 days, from affiliating with an outside business organization for the purpose of providing compensated

professional services to others.]

INTERPRETATIVE RULING NO. 56

Date Issued: September 7, l977

Applicable Rules: 34 and 37

QUESTION CONSIDERED:

May a Member and a staff person receive compensation for collaboration on a book which concerns the subject

matter of hearings held before the Member’s Committee and was jointly written after regular Senate office hours?

RULING:

Rule 37 prohibits Members and employees from engaging in any outside business or professional activity or

employment for compensation which is inconsistent or in conflict with performance of official duties. The

Committee found the proposed activity permissible because it was conducted in off-duty hours and the book draws

largely on Committee hearings and reports all of which are readily available to the public.

Income received would be reported pursuant to the financial disclosure requirements of the Ethics in Government

Act.

[NOTE: The Committee has determined that payments of royalties and advances on royalties for writings to be

published or republished as books or chapters or parts of books are not honoraria banned by Senate Rule 36.]

INTERPRETATIVE RULING NO. 59

Date issued: September 13, 1977

Applicable Rule: 41

QUESTIONS CONSIDERED:

May a Senate employee or staff member engage in substantial campaign activity, including receiving, soliciting,

maintaining custody of, or distributing campaign funds while the staff member is off the Senate payroll, even

though it is contemplated the employee will be re-hired in his old position when the campaign terminates?

RULING:

Members can and should remove staff from the Senate payroll when they are to participate for an extended period

in substantial campaign activities. If an employee is removed from the Senate payroll, the restrictions found in

Rule 41 with respect to political fund-raising activities would not be applicable, even though there might be an

understanding between the former employee and his or her Senator that the employee would return to the Senate

payroll at a future date.

206 SENATE ETHICS MANUAL

INTERPRETATIVE RULING NO. 61

Date Issued: September 14, l977

Applicable Rules: 34, 35, 37

QUESTION CONSIDERED:

What provisions of the Senate code of Official Conduct are applicable to a consultant hired by a Senate

committee?

RULING:

For purposes of the Code of Conduct, an employee of the Senate is defined to include ‘‘any employee whose

salary is disbursed by the Secretary of the Senate.’’ This definition encompasses consultants and other part-time

employees; hence they must adhere to the Code.

If the consultant’s initial salary is equal to or in excess of the rate in effect for the GS-l6 level of the General

Schedule, he or she will be required to submit a public financial disclosure report within 30 days of commencing

employment, and on May l5 of each year thereafter.

Two other provisions of the Code apply to a consultant, regardless of the salary level and period of employment.

The first is Rule 35 which restricts the acceptance of certain gifts by Senate employees. The second rule

applicable to all Senate employees is the conflict of interest provisions of Rule 37, which among other things,

requires an employee to report in writing to his supervising Senator before engaging in any outside employment.

The Senator is then responsible for taking any necessary action to avoid conflict of interest or interference with

Senate duties.

Because the Code places the responsibility for avoidance of conflict of interest on the supervising Senator, this

Committee does not ordinarily accept that responsibility in the first instance. For this reason, it is reluctant to

review the resume of a consultant and declare that there is or is not a real or apparent conflict of interest. Such

judgments require continuing attention to the individual’s Senate work assignments and outside activities which the

Committee cannot offer.

INTERPRETATIVE RULING NO. 63

Date Issued: September 15, 1977

Applicable Rule: 37

QUESTION CONSIDERED:

Are Senators, who are retired Military Reservists, in violation of paragraph 4 of Senate Rule 37 (which prohibits

one from aiding the progress of legislation intended to benefit a limited class of persons—-including a Senator or

his immediate family) when they vote for a bill which would affect their pensions by eliminating the limit upon

the amount of the pension they could receive while they are Members of the Senate?

RULING:

The bill referred to affects all present and future retired officers who hold or seek Federal employment. Paragraph

4 of Senate Rule 37 provides that a Member shall not aid the passage of legislation, a principal purpose of which

is to further his pecuniary interest or that of a limited class of persons.

The legislative history of paragraph 4 states at page 42 of Senate Report No. 95–49 that:

Legislation may have a significant financial effect on a Senator because his holdings are involved, but if the

legislation also has a broad impact on his state or the nation, the prohibitions of the paragraph would not apply.

The report adds that dairy farmers, shoemakers and disabled veterans are examples of groups that do not

constitute a limited class. A limited class would resemble the class of persons affected by a private bill. Thus the

Senators did not violate this provision by voting for the bill in question since all present and future retired

military officers who hold or seek Federal employment would not constitute a ‘‘limited class’’ as that term is

used in Rule 37.4.

INTERPRETATIVE RULING NO. 66

APPENDIX A 207

Date Issued: September 26, l977

Applicable Area: Franking

QUESTION CONSIDERED:

A non-Senate organization offered its membership mailing list to a Senator to use in an otherwise frankable mass

mailing. The non-Senate group refuses to give its list to the Senator but has agreed to place mailing labels

derived from the list on pre-sealed envelopes to be supplied by the Senator. Does the statute regulating the use of

the mailing frank authorize the Senator to utilize the mailing list under these conditions?

RULING:

The U.S. Code, Title 39, paragraph 32l5 states that a ‘‘person entitled to use a frank may not lend it or permit

its use by any committee, organization, or association, or permit its use by any person for the benefit or use of

any committee, organization, or association . . .’’ In the view of the Committee, a transfer of franked envelopes,

though previously stuffed and sealed by the Service Department, would be precluded by the statute. In this

instance, the opportunity for alteration of the material, identification of the organization on the Senate envelopes,

delivery to unintended addresses and diversion of the franked envelopes to unintended purposes is so great that

the practice would be tantamount to a loan of the frank.

However, there are ways in which an outside organization’s mailing list may be used by a Senator. For example,

the organization could supply the list to the Senator for preparation and mailing within the Senate. Another

method would involve providing blank mailing labels and return them to the Senator for mailing.

In both these cases, care must be taken so that the mailing in no way identifies the non-Senate organization as

the sponsor, in whole or in part, of the mailing. Similarly, if the organization normally charges a fee for its

mailing list, the customary fee must be paid since the Committee has construed Rule 38 as prohibiting in-kind

contributions to defray an expense of holding office. If, on the other hand, the organization does not ordinarily

charge a fee, a Senator may accept the list, provided that reimbursement is made to the organization for any costs

it incurs in preparing the list to be turned over to the Senator.

INTERPRETATIVE RULING NO. 70

Date Issued: September 29, l977

Applicable Rule: 37

QUESTION CONSIDERED:

May a Senate staff member engage in the private practice of law in a minor transaction and receive compensation

therefor?

RULING:

Paragraph 5 of Rule 37 on conflicts of interest was intended to severely restrict the practice of any profession

(for compensation) by Senate employees. That paragraph states in pertinent part that no Member or (full-time)

employee compensated at a rate in excess of $25,000 per annum shall (a) affiliate with a firm or partnership, (b)

permit his or her name to be used by such, or (c) ‘‘practice a profession for compensation to any extent during

regular office hours of the Senate office in which employed.’’ This provision restricts, but also contemplates, some

practice outside office hours or on annual leave time. Whether the limited practice proposed in this instance is

permissible depends on the facts of each case. They include the nature of one’s Senate duties and the amount of

time required by such outside activities. Consequently the Code, under paragraph 3 of Rule 37, places the initial

responsibility upon an employee’s supervisor to determine whether there is a potential for conflict of interest or its

appearance and to take such action as is necessary to avoid same.

[NOTE: Paragraph 5(b) of Rule 37 states that a Member or an officer or employee whose rate of basic pay is

equal to or greater than 120% of the annual rate of basic pay in effect for grade GS–15 of the general schedule

shall not, among other restrictions, receive compensation for practicing a profession which involves a fiduciary

relationship]

INTERPRETATIVE RULING NO. 74

208 SENATE ETHICS MANUAL

Date issued: October 3, 1977

Applicable Rules: 38, 40, and 41

QUESTION CONSIDERED:

A Senator plans to telephone homes and businesses on a random basis to ask whether the individual or firm is

aware of, or has need for, any of the traditional casework or informational services available through a Senate

office. A franked form letter is then to be sent to follow up with the person called. Does this proposed activity

conform to the Code of Official Conduct and other applicable laws or regulations?

RULING:

The proposed telephone survey is not prohibited. However, the proposed follow-up form letter would constitute a

mass mailing subject to the restrictions on such mailings, including the requirement of Rule 40(2) that only

official funds may be used to prepare the mass mailing. In our opinion, this follow-up form letter is not in

‘‘response to a direct inquiry’’ as that term is used in the exception to a mass mailing. On the other hand, any

letter sent to respond to a specific question with information would fall within the response to a direct inquiry

exception to the definition of a mass mailing and thus would be frankable. There is no objection to including a

reference to a ‘‘hot-line.’’ If a questionnaire is used rather than a telephone survey, it may be franked; however,

since presumably more than 500 pieces would be involved, this would constitute a mass mailing. Volunteer

workers may be used in this endeavor. While the Committee has construed Rule 38 as prohibiting in-kind

contributions of goods and services to defray official expenses, the Committee has determined that this prohibition

does not extend to the services of individual volunteers, such as students, Congressional and science fellows,

homemakers, senior citizens, and the like, who traditionally have worked in Senate offices both in Washington and

in the home state. The Committee noted that paragraph 6 of Rule 41 recognizes that such volunteers are utilized

in performing Senate business by subjecting them to the Code of Official Conduct if they perform services full

time for more than 90 days in a calendar year.

[NOTE: I.R. 444, issued in Feb., 2002, requires that before a Senator utilizes the services of a volunteer (or

intern or fellow), the Senator must make a determination that the service is primarily for the educational benefit

of the volunteer (or intern or fellow.]

INTERPRETATIVE RULING NO. 75

Date Issued: October 3, l977

Applicable Rules and Area: 34, 35, Federal Election Campaign Act

QUESTION CONSIDERED:

May a staff member accompanying a Senator to an appearance accept the necessary expenses of travel, offered by

the sponsor of the appearance, where the aides attendance has been requested by the sponsor? The aide will assist

the Senator with his preparation for the appearance. Are the expenses of the staff assistant considered part of the

honorarium to the Senator for purposes of either the limitation on receipt of honoraria or disclosure requirements?

RULING:

The financial disclosure statute requires all Members and certain staff to disclose the receipt of all travel- related

reimbursement or in-kind provision of travel if its value equals or exceeds $250.

The Federal Election Campaign Act, at section 441(i) of Title 5, USC, applies a per appearance limitation only to

net honoraria, thus excluding the necessary expenses of travel, etc., of an aide who might accompany the Senator

in an official capacity.

Rule 35, on Gifts, excepts from the definition of a ‘‘gift’’ the providing of or reimbursement for necessary

expenses of travel incident to an appearance before the sponsoring group. This exception applies not only to

Members but also to an officer or employee who may accompany the Senator in an official capacity.

[NOTE: The new Senate Gifts Rule, effective January 1, 1996, provides in section 2 that Members and staffers

may be reimbursed by an individual other than a registered lobbyist or foreign agent for the necessary expenses

of travel to a meeting, speaking engagement, factfinding trip or similar event in connection with the duties of the

Member, officer, or employee as an officeholder. Necessary expenses related to travel only for an accompanying

spouse or child (not a staffer) who travels with a Member, officer or employee on an officially related trip may

be accepted if the Member or officer (or supervising Member or officer in the case of an employee) signs a

written determination that the attendance of the spouse or child is appropriate to assist in the representation of the

Senate. Thus, in the case of a Senate staffer, the sponsor must separately invite the staffer to attend the event,

since the staffer may not accept necessary expenses for ‘‘accompanying’’ the Senator.]

APPENDIX A 209

INTERPRETATIVE RULING NO. 76

Date Issued: October 5, 1977

Applicable Rule: 35

QUESTION CONSIDERED:

May a Member, officer, or employee of the Senate accept the invitation of a long-time personal friend, who is an

officer of a corporation which is a prohibited source (as defined in paragraph 1(b) of Rule 35), to visit a hunting

lodge for a vacation of several days when the value is assumed to be in excess of $100 under any of the

following circumstances:

A. If the host leases the lodge from the corporation for this particular hunt?

B. If the Member or employee makes a reasonable reimbursement of the expenses incurred, either to the

corporation or the host (if the latter leased the lodge)?

C. In determining whether the aggregate value of the gift exceeds $100, the value of similar entertainment

furnished by the Member or employee may be deducted, and

D. The above questions would be answered differently if the host were owner or lessee of the lodge rather than

the corporation, and

E. If the gift can be accepted, must the gift be disclosed?

RULING:

Rule 35 prohibits the acceptance of such an invitation if the corporation owns or leases the premises.

The Member or employee cannot accept the invitation if the host leases the facilities from the corporation for this

hunt because the legislative history of Rule 35 (Senate Report No., 95–49, page 35) indicates that ‘‘personal

hospitality’’ consists of food, lodging, and entertainment while a guest in the host’s personal residence.

The Member or employee may accept the invitation under (B) if he reimburses the proper party (whoever is

paying the expenses) for his share of the expenses. No gift would then be involved.

Under Rule 35 the ‘‘personal hospitality’’ reciprocated by a Member or employee may not be deducted by the

Member or employee in determining whether gifts exceed $100 or have been received during a calendar year from

a prohibited source.

With respect to (D) if the host is the owner, or lessee of the premises under a lease unrelated to his employment,

acceptance of such an invitation can qualify as ‘‘personal hospitality.’’

With respect to (E) those invitations which would qualify as personal hospitality need not be reported under Rule

34.

[NOTE: The new Senate Gifts Rule, effective January 1, 1996, excludes from the gift rule restrictions a gift of

personal hospitality from an individual other than a registered lobbyist or agent of a foreign principal. The new

rule, however, does not change the substance of the ruling in IR 76]

INTERPRETATIVE RULING NO. 79

Date Issued: October 11, 1977

Applicable Rules: 34, 35

QUESTION CONSIDERED:

May Senate staff employees accept travel expenses from a potential employer for the purpose of a job interview?

RULING:

Paragraph 2(a) of Rule 35 excludes from the definition of a gift the ‘‘necessary expenses’’ of travel, food, and

lodging for purposes of the prohibition upon accepting gifts in excess of $100 from prohibited sources. The Select

Committee has determined that the necessary expenses for the purpose of a job interview, if paid by the

prospective employer, may be accepted under this exception to the definition of a gift. If the staff employees are

required to file annual financial disclosure statements, the acceptance of these expenses should be reported as the

receipt of a reimbursement if it is worth more than $250.

[NOTE: The new Senate Gifts Rule, effective January 1, 1996, excludes from the gift rule restrictions those

necessary expenses resulting from the outside business or employment activities of the Member, officer, or

210 SENATE ETHICS MANUAL

employee, or the spouse of the Member, officer, or employee if such necessary expenses have not been offered or

enhanced because of the official position of the Member, officer, or employee and are customarily provided to

other in similar circumstances]

INTERPRETATIVE RULING NO. 86

Date Issued: November 8, 1977

Applicable Rules: 37, 41

QUESTION CONSIDERED:

Can a staff member designated under Senate Rule 41 to solicit contributions be employed as a consultant by a

state party organization for the purpose of assisting with developing and implementing its fundraising activities?

RULING:

Under Rule 37, paragraph 3 on Conflict of Interest, the initial responsibility for determining that this proposed

outside professional activity does not conflict with the employee’s conscientious performance of his Senate duties

rests with his supervisor (i.e., his supervising Senator). The Committee suggested that perhaps he could render his

consulting services after Senate office hours, over weekends or while on annual leave.

INTERPRETATIVE RULING NO. 88

Date Issued: November 16, 1977

Applicable Rule: 41

QUESTION CONSIDERED:

May a staff member attend (on his own time) a fundraiser to benefit his employing Member’s campaign while the

staff member is in an official travel status? Extra travel expenses incident to attending the fundraiser will be paid

by the Member’s political campaign committee.

RULING:

Although the staff member cannot make a direct contribution to a Member of Congress (and thus cannot attend as

a paying guest), nothing in the Code of Official Conduct prohibits the staff member from attending the fundraiser

on his own time provided he does not engage in the solicitation or handling of campaign funds prohibited by

Rule 41 (unless properly designated). The fact that the staff member is in an official travel status has no bearing

on this ruling. It is appropriate for a campaign committee to bear the expense of the additional travel expense

incident to attending the fundraiser.

[Note: As amended in 1979, the law (now 18 U.S.C. 603) prohibits contributions only to the contributor’s

’’employer or employing authority.’’ See Interpretative Ruling 301, February 21, 1980.]

INTERPRETATIVE RULING NO. 89

Date Issued: November 21, 1977

Applicable Rule: 35

QUESTION CONSIDERED:

A Senator’s ‘‘necessary travel expenses’’ are to be paid by the organization sponsoring his appearance. May the

organization also pay for expenses related to another appearance? When two different sponsoring organizations in

the same area offer to pay ‘‘necessary travel expenses’’ for the Senator’s trip to that area, may the Senator accept

both offers so a staff member may accompany him?

RULING:

A Member, officer, or employee may accept necessary travel expenses from the organization sponsoring his or her

appearance. These expenses are not considered a gift for purposes of the Rule 34 reporting requirements and the

Rule 35 limitations on gifts.

When a second appearance requires additional expense, such as an extra night’s lodging, it may not be paid by

APPENDIX A 211

the sponsor of the first appearance, since it is not an expense necessary for that appearance. An extra expense of

this kind should be paid by the sponsor of the second appearance.

The second question assumes that two different sponsoring organizations offer to pay travel expenses for two

separate appearances in the same area. The question is whether the Senator may accept both offers of travel

expenses so a Senator’s staff member can also attend for official purposes. There is no objection to this under the

Code of Official Conduct if it is done with the knowledge and agreement of the sponsors. The Senator may not

accept double payment for the same expense, but may accept payment from the two sources for expenses of

himself and a staff member as long as the expenses are necessary and the attendance of the staff member at one

of the events is for official purposes.

[NOTE: The current Senate Gifts Rule, effective January 1, 1996, prohibits a registered lobbyist or agent of a

foreign principal from sponsoring necessary travel expenses. Moreover, a staffer may no longer accompany a

Senator (spouse or child only) on a fact-finding trip, unless the staff member has received his or her own

invitation from the sponsor. Further, back-to-back events as in the ruling would have a combined 3 day limit

under the current Rule, unless each event was independently arranged (in other words, you can’t plan back-to-back

events to exceed the 3 day rule).]

INTERPRETATIVE RULING NO. 93

Date Issued: January 4, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May the expert transcribers who are on the staff of the Official Reporters of Debates perform transcribing services

for commercial reporters in non-federal cases while the Senate is in recess or after Senate hours?

RULING:

Paragraph 6 of Senate Rule 37 states that no employee compensated at an annual rate in excess of $25,000 shall

‘‘affiliate with a firm, partnership, association, or corporation for the purpose of providing professional services for

compensation.’’

For the purposes of this paragraph, ‘‘professional services’’ shall include but not be limited to those which

involve fiduciary responsibilities.

While the transcribers in question have expertise in Senate procedure and have exceptional background in

grammar, English usage and punctuation, the extent of their fiduciary duty is to transcribe a true and accurate

statement. The Committee is of the opinion that the transcribers are not prohibited from offering their professional

services for compensation in their off-duty hours, as this rule is primarily designed to limit the practice of law,

medicine, architecture, and other traditional professions.

INTERPRETATIVE RULING NO. 94

Date Issued: January 24, 1978

Applicable Rule: 35

QUESTION CONSIDERED:

May a group of Senate staff, which meets weekly to exchange views on legislative matters, accept coffee and

doughnuts paid for regularly by an organization engaged in lobbying the Congress?

RULING:

While it is probable that no Senate Rule would be violated, the Committee is concerned that such an arrangement

between a committee staff and an interest within its jurisdiction could reflect discredit upon the Senate.

[NOTE: The new Senate Gifts Rule, effective January 1, 1996, excludes food or refreshments of a nominal value

offered other than as part of a meal].

INTERPRETATIVE RULING NO. 97

212 SENATE ETHICS MANUAL

Date Issued: February 8, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May a staff lawyer assigned to a subcommittee join a local bar association subcommittee which intends to lobby

the staff member’s subcommittee with respect to pending legislation?

RULING:

The primary responsibility for preventing any conflict of interest or the interference of outside activities with

Senate duties rests with the staff member’s supervisor pursuant to Rule 37.3. While there is nothing in the Code

of Official Conduct which would preclude his membership in the bar association subcommittee, the Ethics

Committee believes that such membership could result in an appearance of a conflict of interest and that the more

prudent choice would be to refrain from such membership.

INTERPRETATIVE RULING NO. 100

Date Issued: February 23, 1978

Applicable Rule: 40

QUESTION CONSIDERED:

Is the restriction on the use of the frank for mass mailings and use of the Senate Recording Studio for 60 days

prior to ‘‘any primary or general election’’ applicable to a State party convention which has authority to nominate

a candidate for the Senate.

RULING:

The Committee has concluded that the definition of a ‘‘primary or general election (whether regular, special, or

runoff)’’ does not include a party convention. This decision is in accord with the definition of an ‘‘election’’,

previously adopted by the Congress in the Federal Election Campaign Act Amendments of 1976 (P.L. 94–283),

which defines an election to include ‘‘a convention or caucus of a political party which has authority to nominate

a candidate . . .’’ (Title 2, Chapter 14, section 431 of the Federal Election Campaign Act). Under the law of the

State in question, the convention does have such authority.

As it was originally enacted, the Federal Election Campaign Act of 1971 defined an ‘‘election’’ as including ‘‘a

convention or caucus of a political party held to nominate a candidate.’’ Thus, the Congress, through the FECA

amendments of 1976, acted to expand the definition to include not only party conventions and caucuses which act

to nominate a candidate, but also conventions and caucuses which have the authority to make such nominations.

Thus, the restrictions of Rule 40, as they apply to mass mailings under the frank and use of the Senate Recording

Studio 60 days prior to ‘‘any primary or general election . . .’’ are applicable to this situation, including a

subsequent primary, if any, and the general election.

INTERPRETATIVE RULING NO. 103

Date Issued: March 6, l978

Applicable Rule: 37

QUESTION CONSIDERED:

May a Senate employee join the board of a tax-exempt corporation which has as its principal purpose the

publication of a newsletter summarizing state and federal election campaigns?

RULING:

Paragraph 6(a) of Rule 37 permits board service of this type so long as the service does not conflict or interfere

with the conscientious performance of Senate duties. In this case the Committee was informed that the time

involved would be minimal (quarterly board meetings). The responsibility to ensure that no conflicts arise in the

future rests with the employee’s supervising Senator, who must be informed of this outside activity.

In cases where the business of the tax-exempt corporation is similar to that of the employee’s committee

assignment or area of responsibility, the Ethics Committee has advised against the employee accepting such a

position. No such conflict appears to exist in the present case.

APPENDIX A 213

INTERPRETATIVE RULING NO. 107

Date Issued: March 21, 1978

Applicable Area: Nepotism

QUESTION CONSIDERED:

May a Senator appoint the son of another Senator to a Senate post at the latter Senator’s request?

RULING:

The federal anti-nepotism law (5 U.S.C. 3110) provides that an individual may not be employed in a government

agency if his employment has been advocated by a public official serving in that agency who is a relative of the

prospective employee. Under the circumstances, the Senator’s son thus would be precluded from being appointed

to the post in question.

INTERPRETATIVE RULING NO. 109

Date Issued: March 23, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May a full-time employee on a Member’s staff working in a district office serve, if elected, as a compensated

member of the state legislature and continue to be a Senate employee?

RULING:

Paragraph 3 of Rule 37 on Conflict of Interest states that no officer or employee shall engage in any outside

business or professional activity or employment for compensation unless he has reported to his supervisor, in

writing, when such activity commences and on each May 15th thereafter so long as it continues. The supervisor

shall take such action as he considers necessary for the avoidance of a conflict of interest or interference with the

staff member’s duties to the Senate.

The Committee cannot predict whether, in fact, this outside activity will result in actual conflict of interest in

connection with a particular issue or will interfere with the performance of Senate duties.

It was stated that in addition to time away from Senate duties while campaigning, the legislature meets on four

afternoons each week for four months of the year. The supervisor advised the employee that he would monitor

the situation and consider whether a salary adjustment or restrict of Senate duties would be appropriate.

The Committee concluded that this approach to the matter is in conformity with paragraph 3 of Rule 37.

INTERPRETATIVE RULING NO. 111

Date Issued: April 5, l978

Applicable Rule: 4l

QUESTION CONSIDERED:

Does the Senate Code of Official Conduct place any restrictions upon the use of interns?

RULING:

The Code of Conduct was not intended to limit a Senator’s ability to utilize interns. The Code of Conduct

contains no specific reference either to interns or to internship programs. However, paragraph 4 of Rule 4l does

provide that a Senator may not utilize the full-time services of an individual for more than ninety days in a

calendar year unless the individual agrees in writing to comply with the Senate Code of Official Conduct in the

same manner and to the same extent as employees of the Senate.

Thus, an intern who worked for a Senator or for a Senate committee on a full-time basis for over ninety days

would have to agree to abide by the provisions of the Code of Conduct, some of which apply to all Senate staff

and others of which apply only to individuals paid in excess of a specified rate.

[NOTE: IR 111 presumes that an intern working in the Senate is unpaid. Interns who are paid by the Senate for

214 SENATE ETHICS MANUAL

services are treated like other employees of the Senate and, thus, are subject to the Code of Conduct immediately

upon employment]

INTERPRETATIVE RULING NO. 112

Date issued: April 7, 1978

Applicable Area: Franking

QUESTION CONSIDERED:

(1) May the frank be used to send an autographed picture of a Senator in his former occupation in response to a

request for the picture; and

(2) May the frank be used to send an autographed picture along with a written response on a legislative matter;

and

(3) May the frank be used to return an item which was sent to the Senator with a request for an autograph?

RULING:

Title 39 U.S.C. 3210(a)(3)(J) provides that frankable mail includes mail matter ‘‘which contains a picture, sketch

or other likeness . . . and which is so mailed as a part of a Federal publication or in response to a specific

request therefore . . .’’ Thus, the statute specifically allows use of the frank on autographed photographs when in

response to a specific request and, by implication the statute allows for the return of items having been

autographed as requested. The statute does not appear to allow either autographed items or photographs to be

routinely sent along with other franked mail absent a specific request for such an item.

INTERPRETATIVE RULING NO. 117

Date Issued: April l0, l978

Applicable Rule: 40

QUESTION CONSIDERED:

Rule 40, paragraph 4(b), exempts from the restrictions on mass mailings any mailing under the frank which is

‘‘addressed to colleagues in Congress or to government officials (whether Federal, State or local).’’ What does the

term ‘‘government officials (whether Federal, State or local)’’ mean?

RULING:

The Committee has determined that the definition of ‘‘government officials (whether Federal, State or local)’’ is as

follows:

Government officials (whether Federal, State or local) include any elected or appointed official of the United

States and of any state or territory or a political subdivision thereof.

INTERPRETATIVE RULING NO. 124

Date Issued: May 5, l978

Applicable Rules: 34, 35

QUESTION CONSIDERED:

May a Senator who is planning to speak to a foundation accept hotel lodging for himself and his wife when the

hotel accommodations have been made available to the foundation by the hotel and the foundation has the

discretion to decide who may use the rooms?

RULING:

The ‘‘necessary expenses’’ of travel provided by the sponsor of an event would not constitute a gift under the

limitations of Rule 35 where the sponsor of the Senator’s appearance makes arrangements to have a hotel room

made available to the Senator. Therefore, the foundation, a sponsor of the event, may provide a hotel room to the

Member and his wife.

APPENDIX A 215

Rule 34 (Title I of the Ethics in Government Act) requires that, if the value of the lodging provided was more

than $250 or, if within the calendar year, including the value of the hotel room, the foundation had provided

more than $250 in reimbursements of the Senator’s travel related expenses, then the providing of the hotel room

must be reported on the Senator’s annual financial disclosure statement.

INTERPRETATIVE RULING NO. 125

Date Issued: May 25, l978

Applicable Rule: 34

QUESTION CONSIDERED:

Under the financial disclosure requirements of Rule 34, how should the following property interests be reported

and evaluated?

(l) an undivided interest in several pieces of real property purchased on an installment basis, in part with cash,

and the balance financed by a non-recourse loan against the property itself;

(2) a limited partnership in several real estate holdings which are secured solely by the land involved.

RULING:

In the case of co-ownership of the undivided real property interests, the reporting individual’s interests would be

reported under the real property section, using as a method of valuation: an appraisal; the assessed value for tax

purposes; the purchase price of the interest (i.e., the reporting individual’s share of the down payment and the

note) and date of purchase; or a good faith estimate of the value of the interest on December 3l of the preceding

calendar year. Under the liability section, the reporting individual’s share of the notes involved would be reported,

since he is personally obligated to pay his share of installments on the notes when due in order to avoid

foreclosure and loss of the properties.

In the case of the limited partnerships in real estate ventures, these interests should be reported under the property

section, and may, by virtue of section l02(c)(2) of the Act, utilize the purchase price and date of purchase as a

method of valuation of the reporting individual’s interests. The other valuation methods mentioned above may also

be utilized. The resulting values should be reported by their appropriate categories of value. A limited partner who

is not personally liable on the notes for certain properties would not be required to report any personal liabilities

for these interests.

INTERPRETATIVE RULING NO. 126

Date Issued: May 5, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

Is there a conflict of interest presented by a staff member in a Senator’s state office serving as an uncompensated

member of the board of a local Chamber of Commerce during the time when the Chamber will be administering

a federal grant to create an economic development plan for that locality?

FACTS:

The supervising Senator has no committee assignments that would involve him in oversight of or appropriations

for the federal agency providing the grant in this case.

RULING:

The facts presented do not seem to indicate a conflict of interest under Rule 37. However, paragraph 3 of Rule

37 requires that the supervising Senator take such action as he considers necessary for the avoidance of conflict

of interest or interference with duties to the Senate.

INTERPRETATIVE RULING NO. 128

216 SENATE ETHICS MANUAL

Date Issued: May 12, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

A Senator is writing a book and wishes to utilize the services of a staff member as a consultant to the project.

The Senator proposes to retain the aide on the Senate payroll at the minimum figure established by the Secretary

of the Senate, which will still entitle the aide to health and life insurance benefits. The aide will perform services,

commensurate with his reduced salary, in the Member’s office during Senate business hours. Work on the book

will be undertaken during non-Senate business hours. Would this arrangement conflict with the Code of Official

Conduct?

RULING:

Because the Senate payroll regulations do not provide for a ‘‘leave without pay’’ status, and because the Senate’s

health and life insurance programs are tied to the payroll regulations, a Senate employee must terminate his

insurance protection if he leaves the payroll. In this instance, the Committee ruled that this aide could be retained

on the payroll at the minimum level which would entitle him to insurance coverage, provided that the aide would

continue to perform services, commensurate with his reduced salary, in the Senator’s office during regular Senate

business hours. The Committee agreed that any activity related to work on the Senator’s book would have to be

undertaken during non-Senate hours.

The Committee reminded the Senator that while his proposal was not precluded by any specific rule of the Code

of Official Conduct, Rule 37, paragraph 3 places the responsibility on a Senator, as supervisor of his employees,

to take such action as is considered necessary for the avoidance of conflict of interest or interference with Senate

duties.

INTERPRETATIVE RULING NO. 131

Date Issued: May 15, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May a staff member who terminates his Senate employment be retained on the Senate payroll for a period of

time equal to the employee’s unused annual leave, while also being employed and compensated by his new

employer?

RULING:

While no specific provision of the Code of Official Conduct would preclude this arrangement, paragraph 3 of

Rule 37 directs that a Senate employee report any outside employment for compensation to his supervisor and that

it then becomes the responsibility of the supervisor to take such action as is necessary to prevent a conflict of

interest or the appearance of a conflict. Paragraph 3 of Rule 37 does not prohibit a former employee from

accepting compensation from his new employer during the period he remains on the Senate payroll to expend

unused annual leave.

[NOTE: The Committee has recommended that a former employee still on the payroll to expend unused annual

leave refrain from providing any services for the Senate and also refrain from lobbying the Senate during the pay

period. The post employment restrictions of Senate Rule 37.9 and, where applicable, the restrictions of the

criminal statute, 18 USC 207,apply when the former employee leaves the payroll]

INTERPRETATIVE RULING NO. 134

Date Issued: May 18, 1978

Applicable Rules: 38 and 40

QUESTION CONSIDERED:

May a Senator use his 10 percent discretionary funds from his Official Office Expense Allowance to purchase a

mailing list of registered voters from his state’s election board, when the list is uncoded as to political affiliation?

RULING:

Under Rule 38, the Committee has ruled that a Senator may not accept a mailing list free of charge from a

APPENDIX A 217

private, non-governmental source since this would constitute a prohibited in-kind contribution to an unofficial

office account. However, the l0 percent discretionary allowance, provided to each Senator in the 1978 Legislative

Branch Appropriations Act, may be used to purchase such a list, under standards and procedures established by

the Rules Committee, when the list is used for the purpose of better communicating with constituents.

Paragraph 5 of Rule 40 does not contain any restriction on the source of a mailing list which is to be processed

by the Senate computer facilities.

[NOTE: The general office account is currently the source of official funds for purchase of a non-partisan mailing

list]

INTERPRETATIVE RULING NO. 135

Date Issued: May 22, 1978

Applicable Area: Franking

QUESTION CONSIDERED:

May a Senator borrow a mailing list from a private organization, use the list in an otherwise frankable mailing,

and return the list to the organization, with address corrections provided by the Postal Service at the Senator’s

direction, in exchange for the use of the list?

RULING:

The regulations published by the Select Committee governing the use of the mailing frank state that the mailing

lists may be corrected under Postal Service Regulation l22.5 by postmasters on request from a Member of

Congress, but that ‘‘the frank shall not be used for any other means of correcting the mailing list of a Senator.’’

Additionally, the franking statute, 39 U.S.C. 3215 states that ‘‘a person entitled to use franked mail may not loan

his frank or permit its use by any committee, organization, or association; or permit its use by any person for the

benefit or use of any committee, organization, or association.’’ The franking regulations employ similar language.

Based on these two restrictions, the Committee ruled that a Senator may not use the mailing list of a private

organization in a franked mailing and subsequently communicate information to that organization to enable it to

update its mailing list.

INTERPRETATIVE RULING NO. 140

Date Issued: May 25, 1978

Applicable Areas: Senate Code of Official Conduct

QUESTION CONSIDERED:

Is the Vice President covered by the Senate Code of Official Conduct and is the Senate Select Committee on

Ethics the Vice President’s ‘‘employing agency’’ for purposes of the Foreign Gifts and Decorations Act?

RULING:

Although the Vice President is a constitutional officer with the duty of presiding over the Senate, the Committee

is of the opinion that he is not a Member, officer, or employee of the Senate as those terms are used in the

Code of Official Conduct. The term ‘‘officer’’ refers to those officers elected by the Senate. Thus, the Vice

President is not within the class of persons covered by the Code of Official Conduct.

The Committee notes that the Foreign Gifts and Decorations Act (5 U.S.C. 7342) excepts the Vice President from

a statutory definition of Members of Congress and has thus removed him from the jurisdiction of this Committee

for the purposes of this Act.

INTERPRETATIVE RULING NO. 141

Date Issued: June 6, 1978

Applicable Rule: 40, Franking

QUESTION CONSIDERED:

What is the applicability of Rule 40 concerning the use of the mailing frank to the ‘‘mass mailings’’ of a

218 SENATE ETHICS MANUAL

committee which utilizes the mail frank of the committee’s chairman?

RULING:

The Committee has determined that the moratoriums contained in Rule 40 and the franked mail statute do not

apply to the mass mailings of a Senate committee which are mailed under the frank of the committee’s chairman.

However, such mailings must relate only to the committee’s business and may not focus on a Member in a

manner that could reasonably be deemed to be personal or political.

INTERPRETATIVE RULING NO. 142

Date Issued: June 6, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

A Member who is the chairman of a committee requested the Ethics Committee’s interpretation of paragraph 7 of

Rule 37 on Divestiture.

RULING:

Paragraph 7 of Rule 37 provides:

An employee of the staff of a committee who is compensated at a rate in excess of $25,000 per annum and

employed for more than ninety days in a calendar year, shall divest himself of any substantial holdings which

may be directly affected by the actions of the committee for which he works, unless the Select Committee, after

consultation with the employee’s supervisor, grants permission in writing, to retain such holdings or the employee

makes other arrangements acceptable to the Select Committee and the employee’s supervisor to avoid participation

in committee actions where there is a conflict of interest.

The Committee does not believe that the issuance of guidelines to be applied uniformly to all committee staff, in

all situations, is practical due to the diversity of circumstances and jurisdictions. Committee Chairmen and Ranking

Minority Members are expected to monitor possibilities of real or apparent conflicts of interest due to the holdings

of committee staff. The Committee does offer the following interpretations for guidance.

The definition of ‘‘employee’’ in paragraph 11 of the Rule, includes staff on the payroll of a committee.

Employees certified to a committee by a Senator, pursuant to Section 111 of the Legislative Branch Appropriation

Act of 1978, are not employees for the purposes of paragraph 7.

‘‘Directly affected by actions of the committee’’ is a phrase which must be given application by the Committee

Chairman and Ranking Minority Member as to the particular circumstances of each situations.

There is no basis for treating majority and/or minority staff directors or counsels differently from other members

of the committee staff.

Committee staff with only administrative duties are also covered by the Rule if they are compensated at a rate in

excess of $25,000 and are employed for more than ninety days in a calendar year.

The Rule is not applicable to the property of a spouse or dependent though an employee’s interest in jointly or

severally held property would be covered by paragraph 7.

The Rule does not apply to an employee acting as trustee for an unrelated person if the employee retains no

beneficial interest in the trust corpus. Bare legal title to the corpus of the trust is not sufficient to make paragraph

7 applicable.

If, in a particular instance, divestiture is indicated, a transfer of the assets in question to a spouse or dependent

would not be considered divestiture for purposes of the Rule.

The Rule is applicable to all committees, whether or not they have legislative jurisdiction.

Committee inaction or mitigation of proposed regulatory actions is tantamount to ‘‘committee action’’ for purposes

of the Rule.

Savings accounts, checking accounts, certificates of deposit, federal government bonds, Treasury bills and notes are

not, ordinarily, ‘‘holdings which may be directly affected by the actions of a committee’’ for purposes of the

Rule.

INTERPRETATIVE RULING NO. 143

APPENDIX A 219

Date Issued: June 14, 1978

Applicable Area: Foreign Gifts & Decorations Act

QUESTION CONSIDERED:

May employees on the staff of a Member accept an offer made by the ambassador of a foreign government to fly

from the United States to that foreign country at the expense of the foreign government in order to attend a

treaty ratification ceremony?

RULING:

The Foreign Gifts and Decorations Act (5 U.S.C. 7342) prohibits federal employees from accepting gifts of travel

from a foreign nation unless such travel occurs within the specific restrictions established by the Congress. The

Congress has given its consent to travel involving an international cultural exchange program as well as travel

taking place entirely outside the United States under certain circumstances. The Congress did not consent, in

agreeing to the Foreign Gifts and Decorations Act, to the acceptance of foreign travel provided by a foreign

government when such travel begins and ends within the United States, as does this proposed trip.

The Committee did not find that the proposed travel fits within these Congressionally recognized exceptions and

agreed therefore, that the offer of the ambassador should be declined.

INTERPRETATIVE RULING NO. 145

Date Issued: June 15, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May an employee of the Senate accept an offer from a law firm to join the firm in an uncompensated ‘‘of

counsel’’ relationship while remaining as a Senate employee?

RULING:

Paragraph 5 of Rule 37, Conflict of Interest, provides that no Member, officer, or employee of the Senate

compensated at a rate in excess of $25,000 per year and employed for more than ninety days in a calendar year

shall ‘‘permit that individual’s name to be used by such a firm, partnership, association, or corporation. . . .’’

It is our opinion that the proposed relationship as uncompensated ‘‘of counsel’’ would conflict with paragraph 5

of Rule 37.

INTERPRETATIVE RULING NO. 147

Date Issued: June 19, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

The following questions concerning paragraph 7 of Rule 37 were submitted by Chairmen and Ranking Minority

Members of Senate Committees.

(1) What is meant by ‘‘substantial holdings’’;

(2) Does paragraph 7 apply to S. Res. 4 (former S. Res. 60) staff persons;

(3) Are the holdings of spouses and dependents subject to divestiture;

(4) Are the blind trust provisions of the Ethics in Government Act available in order to avoid divestiture;

(5) What is meant by ‘‘holdings which may be directly affected by actions of the Committee’’;

(6) Is Committee inaction tantamount to ‘‘action’’ as described in paragraph 7;

(7) What procedures should be followed in order to obtain permission to retain holdings affected by the Rule;

(8) What procedures will be utilized for consultation with an employee’s supervisor under the Rule;

(9) Since the staff director, general counsel and minority staff director must participate in all legislation before the

Committee, would different guidelines be appropriate for them?

220 SENATE ETHICS MANUAL

RULING:

The Select Committee does not believe that the issuance of specific guidelines to be applied uniformly to all

committee staff is practical due to the diversity of circumstances and jurisdictions of committees. Each chairman

should initiate appropriate steps to ascertain the extent, if any, of the possibility of the appearance of a conflict of

interest due to the holdings of committee staff persons, and in proper cases, should suggest a course of action he

deems to be an acceptable solution. The Committee will assist with doubtful cases upon written request.

As for what constitutes ‘‘substantial holdings’’, the Select Committee has concluded that it cannot translate this

into dollars in the absence of specific circumstances, as it is relative and what may be considered substantial in

one instance may not be in another. However, the value and character of the holding in relation to the

Committee’s jurisdiction should be considered as well as the value of the individual’s other assets. In a few cases,

the holding may constitute a substantial percentage of the equity ownership of the business, and therefore may be

a factor to be considered.

Regarding the second question, concerning the definition of an employee on the staff of a committee, employees

certified to a committee by a Member, pursuant to Section 111 of the Legislative Branch Appropriations Act of

1978, are not employees of the staff of a committee for purposes of paragraph 7 of Rule 37.

In answer to question three, the Select Committee has determined that the holdings of a spouse or dependent are

not covered by the Rule, although paragraph 7 would be applicable to a person’s interest in jointly-held property

or to the entire property in those jurisdictions where property may be held jointly with rights of survivorship or

the equivalent. The Committee has held that the term is not applicable to savings accounts in federally regulated

banks or savings and loans; nor is the term applicable to real estate within the District of Columbia, nor to

property held in a fiduciary capacity for the benefit of others, where the employee retains no beneficial interest.

With respect to question four, a qualified blind trust may be an acceptable method of eliminating questions of

conflict of interest. Before a qualified blind trust could become an acceptable alternative to divestiture, all the

facts and circumstances surrounding the blind trust proposal would have to be examined by the Committee. The

divestiture requirement of Rule 37 would not be met by a transfer of property by a committee staff employee to

his or her spouse or dependent.

With respect to the fifth question as to the meaning of the phrase ‘‘directly affected by actions of the

Committee’’, the phrase must be given application by the committee chairman and ranking minority member as to

the particular circumstances of each situation.

In answer to question six, committee inaction or mitigation of the effect of a regulation is tantamount to action.

With regard to questions seven and eight, the Committee suggests that an employee who feels that paragraph 7 of

Rule 37 may affect his or her financial situation should bring the specifics of the situation to the attention of his

supervisor. After attempting to reach a satisfactory solution, the staff member would then write to the Select

Committee seeking permission to retain the holdings or proposing an alternative arrangement which might be

acceptable to the Select Committee and the employee’s supervisor.

With respect to question 9, the Committee concluded that there is no basis in the rule for treating a staff director

and counsel differently. They are in the class to which the provision is specifically intended to apply.

In conclusion, the Select Committee does not believe that the issuance of specific guidelines to be applied

uniformly to all committee staff is practical due to the diversity of circumstances and jurisdictions of committees.

Each chairman should initiate appropriate steps to ascertain the extent, if any, of the possibility of the appearance

of a conflict of interest due to the holdings of committee staff persons, and in proper cases, should suggest a

course of action he deems to be an acceptable solution.

INTERPRETATIVE RULING NO. 149

Date Issued: June 19, 1978

Applicable Rule: 40

QUESTION CONSIDERED:

Rule 40 prohibits a Member from sending a ‘‘mass mailing’’ under the frank less than 60 days immediately

before the date of any election in which the Member is a candidate, but permits a mailing under the frank which

is sent ‘‘in direct response to inquiries or requests from persons to whom the matter is mailed.’’

How is the 60 days computed, and is a request for additional information from a recipient of a questionnaire an

‘‘inquiry or request?’’

RULING:

The 60-day limitation is computed by excluding the actual day of the election, whether it is a primary, general,

regular, special, or runoff. For example, the last permissible date for delivering a ‘‘mass mailing’’ to a postal

APPENDIX A 221

facility before a September 9, 1978 primary is July 11, 1978.

The Committee has previously ruled that the Rule 40 exception for any mailing sent ‘‘in direct response to

inquiries or requests from persons to whom the matter is mailed . . .’’ would apply to a response sent by a

Member to a recipient of a questionnaire, where the recipient of the questionnaire had indicated on a form or on

a portion of the questionnaire a desire for additional information on a particular topic.

INTERPRETATIVE RULING NO. 152

Date Issued: June 22, 1978

Applicable Rule: 40

QUESTION CONSIDERED:

Is a Member a ‘‘candidate’’ for purposes of the franking and studio restrictions of Rule 40, if his or her name is

on the primary ballot, but he or she will have no primary opposition and no write-in votes are allowed under the

applicable State law?

RULING:

The restrictions of Rule 40 are intended to reduce the advantage of incumbent Senators over challengers. Under

the circumstances described, there can be no possible challengers in the primary election. The Committee therefore

believes that the restrictions of Rule 40 are not applicable.

INTERPRETATIVE RULING NO. 153

Date Issued: June 22, 1978

Applicable Rule: 41

QUESTION CONSIDERED:

Is it permissible for an employee of the Senate to volunteer his or her services during a state, county, or

municipal election campaign?

RULING:

Senate Rule 41, Political Fund Activity, prohibits officers and employees of the Senate from engaging in any

fund-raising activities for any Federal office. This prohibition does not apply to the two staff assistants designated

by a Senator to handle his or her campaign contributions, nor does it apply to state or local campaigns.

Although Rule 41 does not address non-financial campaign activities, previous interpretations on the question of

staff activities in campaigns for Federal office would be applicable to state or local elections as well. For

example, the Committee on Rules and Administration has stated, in Senate Report 95–241 (95th Cong.), that it

‘‘is not aware of any laws which prohibit individuals who are part of a Senator’s staff from participating in a

Senator’s re- election campaign as long as they do not neglect their Senate duties . . .’’ In addition, the

Committee has stated, in Interpretative Ruling No. 3, dated May 5, 1977, that ‘‘. . . Senators should encourage

staff to remove themselves from the payroll for periods during which they expect to be heavily involved in

campaign activities.’’

The Committee believes that these statements are applicable to employees of individual Senators, staff of Senate

committees, and employees working for officers of the Senate.

[NOTE: Senate Rule 41.1 has been amended to permit a Member to appoint up to three assistants as political

fund designees, at least one of whom is in the Washington, D.C. office. The Rule was also amended to permit

the Majority Leader and the Minority Leader to each designate an employee of their respective leadership office

staff as one the three designees. Such designation shall be made available for public inspection by the Secretary

of the Senate].

INTERPRETATIVE RULING NO. 154

222 SENATE ETHICS MANUAL

Date Issued: June 22, 1978

Applicable Rules: 40, 41

QUESTION CONSIDERED:

(1) Is a Senator whose name appears on a primary ballot considered a ‘‘candidate’’ for purposes of Rule 40

restrictions when the Senator faces no announced opposition but state law authorizes write-in candidates?

(2) May a part-time staff assistant to a Senator, who also works half-time for the Senator’s re-election campaign

committee, engage in fund-raising activities for the campaign committee?

(3) Is it possible for a staff assistant, while engaged in Senate duties, to become involved to a minimal degree

with a campaign-related activity without violating the Code of Official Conduct?

(4) Is it permissible for a staff assistant on the Senate payroll to engage in campaign-related activities during

other than normal Senate office hours?

RULING:

(1) The prohibitions imposed by Rule 40 on the use of the frank in mass mailings and on the use of the Senate

Recording Studio were intended to restrict the advantages which incumbent Senators might have during a reelection campaign. The Committee previously ruled (Interpretative Ruling No. 152, dated June 22, 1978) that

Senators who do not face a primary election or whose names appear on a primary ballot unopposed, and where

no write-in candidates are authorized, are not ‘‘candidates’’ for the purposes of Rule 40. However, when a

Senator’s name is listed on a primary ballot and state law specifically authorizes write-in candidates, there is a

possibility for a contested primary election. As such, the Senator would be considered a ‘‘candidate.’’

(2) A staff assistant, whether full or part-time, may not engage in any fund-raising activities on behalf of a

Senator’s campaign committee, unless that staff assistant has been designated by the Senator under Rule 41 as one

of the two staff assistants to the Senator who may handle his or her campaign contributions.

(3) As to the possibility of minimal involvement by a staff assistant with campaign-related business, the Select

Committee believes that in a Senator’s re-election campaign there might be some inadvertent and minimal overlap

between the duties of a Senator’s staff with respect to the Senator’s official duties and his re-election campaign.

However, a Senator has the responsibility to ensure that such an overlap is of a deminimus nature and that staff

duties do not conflict with campaign responsibilities.

(4) As to the ability of a staff assistant to engage in campaign activities during other than Senate working hours,

the Committee on Rules and Administration has said in Senate Report 95–241 (95th Congress), which

accompanied Senate Resolution 188, that, except for the prohibitions of Rule 41 with respect to the handling of

campaign funds, it ‘‘is not aware of any laws which prohibit individuals who are part of a Senator’s staff from

participating in a Senator’s reelection campaign as long as they do not neglect their Senate duties, and the

Committee does not feel there should be such proscriptions. Furthermore, it is neither illegal nor a violation of

Senate Rules for a member of a Senator’s staff to work full-time in political campaigns while on annual leave or

vacation time or while on leave of absence from his or her Senate duties.’’

[NOTE: Senate Rule 41.1 has been amended to permit a Member to appoint up to three assistants as political

fund designees, at least one of whom is in the Washington, D.C. office. The Rule was also amended to permit

the Majority Leader and the Minority Leader to each designate an employee of their respective leadership office

staff as one the three designees. Such designation shall be made available for public inspection by the Secretary

of the Senate.

With respect to the question of leave time to perform campaign activities, it is the Committee’s understanding that

the Senate does not recognize a ‘‘leave of absence’’. The Committee has ruled that it is proper for a Senator to

either reduce the salary or remove the employee from the Senate payroll when the employee intends to spend

additional time on campaign activities, over and above accrued leave time or vacation time (see IR 194).

However, in order to receive any level of Senate salary, pay should be commensurate with actual duties performed

for the Senate. An employee may be terminated from the Senate (without pay) and return at a later date].

INTERPRETATIVE RULING NO. 155

Date Issued: June 28, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May a Senate employee run for state office while remaining on a Member’s staff? No campaigning will be done

during the employee’s regular working hours.

APPENDIX A 223

RULING:

Paragraph 3 of Rule 37 on Conflict of Interest places the responsibility upon the Member as supervisor to take

such action as he or she considers necessary for the avoidance of conflict of interest or interference with Senate

duties.

The Ethics Committee cannot predict whether in fact the outside activity will conflict with Senate duties or will

result in a conflict of interest in connection with a particular issue. The Committee suggests that the Member

monitor the situation and consider such reductions in Senate duties and compensation as may be appropriate in the

future.

INTERPRETATIVE RULING NO. 157

Date Issued: June 30, 1978

Applicable Rules: 34 and 35

QUESTION CONSIDERED:

Is it permissible for a Senator to accept, in connection with an appearance related to his Senate duties, air

transportation to be provided by the Federal Government and other related expenses of travel which are to be

provided by a State Government? Would the Senator be required to report the receipt of any of these items?

RULING:

The acceptance by a Senator of air transportation from the Federal Government or a State Government for travelrelated to the performance of official duties is not a ‘‘gift’’ subject to the restrictions of Senate Rule 35. In

addition, the Ethics in Government Act specifically excludes from its disclosure requirements the reporting of

travel-related payments made by the United States Government or by State and local governments.

INTERPRETATIVE RULING NO. 160

Date Issued: July 13, 1978

Applicable Rule: 40

QUESTION CONSIDERED:

Is it consistent with Senate Rule for a Senator to arrange to purchase from a non-Senate organization a copy of

its membership or mailing list for use by the Senator in a mass mailing under the frank, where the list will be

prepared by the non-Senate organization on address labels which will then be affixed to the franked envelopes by

the Senate Service Department?

RULING:

Rule 40, paragraph 2, provides that only official funds of the Senate may be used to prepare any mass mailing

material to be sent out under the frank. The Committee has previously ruled* that the preparation of a mass

mailing includes the preparation and affixing of address labels.

The Committee has agreed that in order to meet the requirement of paragraph 2 of Rule 40, a Senator who

desires to use the mailing list of an outside organization must reimburse that organization for the costs associated

with his obtaining such a list. The Committee has previously ruled** that the 10 percent discretionary allowance

may be used to purchase mailing lists for use in an official mailing.

*See Interpretative Ruling No. 68, dated September 27, 1977.

**See Interpretative Ruling No. 134, dated May 18, 1978.

[NOTE: The current source for the purchase of mailing lists for use in an official mailing is the Senator’s general

office account].

INTERPRETATIVE RULING NO. 162

224 SENATE ETHICS MANUAL

Date Issued: August 3, 1978

Applicable Rule: 35

QUESTION CONSIDERED:

May a Member accept a gift of the use of an apartment from a friend if the apartment is owned by the friend’s

employer, an organization having a direct interest in legislation? In determining the value of the gift, may the

Member divide the total value by the number of members of his family who will be using the apartment?

RULING:

Rule 35 prohibits the acceptance of gifts worth over $100 during a calendar year, including gifts of lodging, from

organizations having a direct interest in legislation before the Congress. Although the use of an apartment has

been offered to the Member by a friend, the apartment is owned by the friend’s employer, who maintains a

separate, segregated fund for political purposes and is thereby a ‘‘prohibited source’’ under Rule 35.

The Committee has determined in prior rulings* that the ‘‘personal hospitality’’ exception to the definition of a

‘‘gift’’ applies only to food, lodging and entertainment enjoyed while a guest in the host’s personal residence or

on premises leased by the host which are not owned by the host’s employer.

Thus, this Member may not accept the offer to use the apartment unless its use is valued at $100 or less.In

determining the value of the use of the apartment, the Member may not divide the amount by the number of his

family members who will be using the apartment also.

*See, for example, Interpretative Ruling No. 76, dated October 5, 1977.

[NOTE: The principles set forth in IR 162 concerning personal hospitality have not changed since passage of the

new Senate Gifts Rule, effective January 1, 1996, except that the new gift ban prohibits a Member, officer or

employee of the Senate from receiving any gift of a value of $50 or more, or gifts from one source (of $10 or

more) that aggregate $100 or more during a calendar year. Thus, a Member may not accept the offer to use the

apartment in the above example unless its use is valued at less than $50]

INTERPRETATIVE RULING NO. 166

Date Issued: August 10, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

Does Rule 37, paragraph 5, prohibit an employee who is compensated in excess of $25,000 per year from selling

real estate on weekends under an arrangement whereby his associate broker’s license is held by a real estate

company?

RULING:

Rule 45, paragraph 6, prohibits an employee of the Senate who is compensated at a rate in excess of $25,000 per

year from affiliating with a ‘‘firm, partnership, association or corporation for the purpose of providing professional

services for compensation.’’ The legislative history of this provision indicates that the sale of real estate was

intended to be included in the prohibition. Thus, the activity in question would not be permissible because the

employee was deemed to be affiliated with the real estate company which, under state law, held the employee’s

license as a real estate broker.

INTERPRETATIVE RULING NO. 167

Date Issued: August 10, 1978

Applicable Rule: 35, Foreign Gifts & Decorations

QUESTION CONSIDERED:

May a staff member attend the inauguration of a foreign president-elect as the guest of a political party in the

President’s country?

RULING:

Rule 35 of the Senate Code of Conduct prohibits the acceptance of gifts valued in excess of $100 from, among

APPENDIX A 225

other sources, foreign political parties. While Congress has given specific consent to travel involving an

international cultural exchange and certain travel taking place entirely outside the United States, the Committee did

not find that the proposed travel fell within these Congressionally recognized exceptions. Therefore, the Committee

ruled that the offer should be declined.

[NOTE: Rule 35, as amended effective January 1, 1996, prohibits a Member, officer or employee of the Senate

from receiving any gift of a value of $50 or more, or gifts from one source (of $10 or more) that aggregate

$100 or more during a calendar year].

INTERPRETATIVE RULING NO. 169

Date Issued: August 18, 1978

Applicable Area: Advisory Opinion on Use of Letterhead

QUESTION CONSIDERED:

Is the use of the words ‘‘United States Senate’’ on a Senator’s personal stationery or on a ‘‘Senate-gram’’ (a

facsimile of a mail-gram), when loaned to a third party for use in a campaign fund-raising effort, consistent with

the Committee’s Advisory Opinion on use of a Senator’s letterhead? Is the use of the words ‘‘Senator John Doe’’

on a letterhead, when loaned to a third party for use in a campaign fund-raising effort, consistent with that

Advisory Opinion?

RULING:

The Committee agreed that it would be inconsistent with the Advisory Opinion for a Senator to allow a nonSenate group or organization to make use of the Senator’s letterhead which included the words ‘‘United States

Senate.’’ The Committee agreed that it is the use of the words rather than the type style employed which is

regulated by the Advisory Opinion. Thus, a Senator’s loan of letterhead with the words ‘‘United States Senate’’

would be prohibited no matter what type style or lettering was chosen by the organization.

The Committee concluded that a Senator is not prohibited by the Advisory Opinion from allowing a non-Senate

organization to use letterhead identifying the Senator as ‘‘Senator John Doe.’’

INTERPRETATIVE RULING NO. 171

Date Issued: September 14, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May a Member aid the passage of certain tax legislation by sending letters that set forth arguments in support of

the legislation if the Member’s spouse practices a profession which would be benefited by the passage of the

legislation in question?

RULING:

Rule 37, paragraph 4, provides that no Member shall knowingly use his official position to introduce or aid the

progress or passage of legislation, a principal purpose of which is to further the pecuniary interest of his

immediate family. However, the legislative history, S. Report 95–49, makes clear that in the case of legislation

which would have a broad, general impact, such as most tax legislation, the prohibitions of paragraph 4 would not

apply. Consequently, the Committee believes that the Member’s support of the legislation in question is not in

violation of Rule 37.

INTERPRETATIVE RULING NO. 175

Date Issued: September 21, 1978

Applicable Area: Miscellaneous

QUESTION CONSIDERED:

May a Senator donate a copy of an art book prepared by the Architect of the Capitol to political party officials

for fundraising purposes?

226 SENATE ETHICS MANUAL

RULING:

A Member’s donation of property, given to him in his capacity as a Member of the Senate, to another individual

is not prohibited by any specific provision of the Code of Conduct, nor does it appear to violate any regulations

of the Joint Committee on Printing or the Senate Rules Committee. The Committee is concerned, nevertheless, that

the use of such public property to raise funds for a political party could reflect discredit upon the Senate.

That concern is, in the Committee’s judgment, an adequate basis upon which to decline to approve the practice

with respect to donations of public property to groups organized for profit and political organizations.

INTERPRETATIVE RULING NO. 177

Date Issued: September 26, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May an officer or employee of the Senate be retained on the Senate payroll for a period of time equal to his or

her accrued annual leave after the officer or employee has terminated his or her Senate duties and has accepted a

new position outside the Senate?

RULING:

In some Senate offices, it is customary that when an employee leaves the Senate to accept new employment and

that individual has any accrued leave, the individual is retained on the Senate payroll for a period of time equal

to the unused leave, despite the fact that the individual has ceased to perform his or her Senate duties and in fact

may have already commenced the new employment.

In such a case, paragraph 3 of Rule 37 on outside employment for compensation directs the employee to report to

his or her supervisor (defined in paragraph 11 of Rule 37) the nature of such employment. It then becomes the

responsibility of the supervisor to take such action as is necessary to avoid any conflict of interest.

When the employee notifies his or her supervisor and the supervisor takes any necessary action to avoid a conflict

of interest, Rule 37 would not prohibit retaining an employee on the Senate payroll for a period equal to his or

her accrued annual leave.

INTERPRETATIVE RULING NO. 178

Date Issued: September 29, 1978

Applicable Areas: Foreign Gifts & Decorations Act; Mutual Educational and Cultural Exchange Act

QUESTION CONSIDERED:

May a Senate employee accept an invitation to participate in a seminar to be held outside the United States

where the sponsor, a foreign government, has offered to provide the necessary expenses of travel, including

transportation, food and lodging?

RULING:

Article I, Section 9, Clause 8 of the United States Constitution prohibits employees of the Federal Government,

absent the consent of Congress, from accepting any gift, to include the expenses of foreign travel, from any

foreign government. Consistent with this prohibition, the Congress has consented to the acceptance of such gifts in

two specific instances, the Mutual Educational & Cultural Exchange Act (22 U.S.C. 2458(a)) and the Foreign Gifts

& Decorations Act (5 U.S.A. 7342). The permission for a federal employee (including Members, officers, and

employees of the Senate) to accept gifts under either of these two statutes is very narrowly drawn so as to apply

in only a limited number of factual situations. Given the facts presented in this inquiry, the Committee ruled that

the proposed arrangement would not fit within either of these two narrow exceptions and, therefore, the

constitutional prohibition would prevent acceptance of the offer.

INTERPRETATIVE RULING NO. 181

APPENDIX A 227

Date Issued: Septembeb 29, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

May a full-time staff member conduct academic research for a non-profit foundation at a university? The staff

member would receive a grant of approximately $12,000 from the foundation for the research which he intends to

conduct during the evenings and on weekends.

RULING:

Rule 37 of the Senate Code of Official Conduct relates to conflict of interest, and paragraph 2 of that Rule

prohibits employees from engaging in outside activity for compensation which is inconsistent or in conflict with

official duties.

Under Rule 37, paragraph 3, it is the responsibility of the staff member’s supervisor to make the initial

determination that the outside activity presents no conflict of interest and to take such actions as are necessary for

the avoidance of a conflict or interference with Senate duties. Based upon the evidence submitted, the Select

Committee was of the opinion that no conflict of interest would be presented by the proposed outside professional

activity.

INTERPRETATIVE RULING NO. 182

Date Issued: September 29, 1978

Applicable Rule: 41

QUESTION CONSIDERED:

Does Rule 41 prohibit a Senate employee from handling funds to be raised after the general election by a state

party organization for the purpose of paying off the campaign debts incurred by the party’s candidates for federal,

state and local offices?

RULING:

Rule 41 prohibits an officer or employee of the Senate from receiving, soliciting, being the custodian of, or

distributing funds in connection with any campaign for the nomination or election of any individual for any

federal office. This prohibition does not apply to a Senate employee who is one of the two persons designated by

his supervising Senator to perform any of those functions on the Senator’s behalf.*

The prohibitions in Rule 41 are not applicable, however, to participation by Senate employees in state and local

election activities. If those activities, and a Senate employee’s participation in the activities, were to be clearly

divisible from any of the organization’s activities performed in connection with any federal election, the employee

would be permitted to participate in fundraising activities related to state and local elections. However, if the

proposed activities would involve the raising of a common fund to discharge the party’s political debts on behalf

of all of its candidates, whether federal, state, or local, the Committee believes that, even if the proceeds of the

fundraising activities were to be apportioned between federal candidates and state or local candidates, a Senate

employee’s participation in the fundraising activities would be prohibited under Rule 41.

———

* See also Interpretative Ruling No. 32 (dated June l7, l977) and No. 45 (dated July 20, 1977).

INTERPRETATIVE RULING NO. 192

Date Issued: October 16, 1978

Applicable Rule: 35

QUESTION CONSIDERED:

Would Rule 35 on Gifts, which is applicable to all Members, officers, employees, their spouses and dependents,

prohibit the acceptance of certain travel arrangements offered by the employer of a spouse of a Senate employee

when the employer is a ‘‘prohibited source’’ within the meaning of paragraph 1(b) of Rule 35?

FACTS:

In this situation, the spouse of a Senate employee will be temporarily assigned by her employer to a project in

228 SENATE ETHICS MANUAL

another location some distance from Washington, D.C. The project is scheduled to last for several months and will

require some weekend work. As a result, the employer, registered under the Federal Regulation of Lobbying Act

of 1946 and thus a ‘‘prohibited source’’ for purposes of Rule 35, would implement an existing company policy

which provides the spouse with weekend round-trip airfare to and from Washington. On those occasions when the

spouse will be engaged in weekend work, the employer has offered to fly the Senate employee to his spouse’s

location.

RULING:

Paragraph 2(a)(7) of Rule 35 excepts from the definition of ‘‘gift’’ anything of value given to the spouse of a

reporting individual by the employer of the spouse in recognition of the services performed by the spouse. In this

factual situation, the Committee ruled that this exception would be applicable to the offer of round-trip airfare,

whether the actual user of the ticket was the Senate employee or the spouse.

[NOTE: Under the current gifts rule, spouses and dependents are not separately subject to the gift limitations.

Rather, under the current Rule, a gift to a family member (or any other individual) is considered a gift to the

Member, officer, or employee only if it is given with the knowledge and acquiescence of the Member, officer, or

employee and the Member, officer, or employee has reason to believe the gift was given because of the official

position of the Member, officer, or employee]

INTERPRETATIVE RULING NO. 194

Date Issued: October 18, 1978

Applicable Rule: 41

QUESTION CONSIDERED:

May Senate employees engage in campaign activities on their own time and away from federal facilities? Is it

permissible for a Senate employee, following adjournment of the Congress, to utilize unused vacation time to work

full-time in a campaign? Would there be any restriction which would prevent a full-time Senate employee from

having his Senate salary reduced while continuing to work for the Senate on a part-time basis in order that the

remainder of his time could be devoted to campaign activities?

RULING:

The Committee on Rules and Administration has stated in Senate Report 95–14l (95th Congress), accompanying

Senate Resolution 188, that it ‘‘is not aware of any laws which prohibit individuals who are part of a Senator’s

staff from participating in a Senator’s reelection campaign as long as they do not neglect their Senate duties . . .

it is neither illegal nor a violation of Senate Rules for a member of a Senator’s staff to work full-time in

political campaigns while on annual leave or vacation time or while on leave of absence from his or her Senate

duties . . .’’ The Select Committee on Ethics believes that this statement is applicable to employees of a Senate

committee and those persons employed by an officer of the Senate as well.

Additionally, the Ethics Committee has said in prior rulings* that it is proper for a Senator to either reduce the

salary or remove an employee from the Senate payroll when the employee intends to spend additional time on

campaign activities, over and above leave or vacation time. The Committee recognizes that staff members ought to

be able to use bona fide vacation time for political campaign activity. As long as an office has an established and

reasonable annual leave policy, and as long as an employee takes no more than the amount of time normally

allowed for such leave, the Committee believes that an employee may engage in campaign activities during that

time. It should also be noted that the Committee has ruled that the restrictions of Rule 41, on the handling of

campaign funds, are applicable to all persons who are on the Senate payroll, even though they might be paid at a

reduced rate.

————

*See, for example, Interpretative Ruling No. 3, dated May 5, 1977; NO. 5, dated May 11, 1977; and NO. 22,

dated May 26, 1977.

INTERPRETATIVE RULING NO. 195

Date Issued: October 18, 1978

Applicable Rules: 38, 40

QUESTION CONSIDERED:

May a Member borrow from another Senator computerized mailing lists for the purpose of communicating with

constituents?

APPENDIX A 229

RULING:

The loan of a mailing list to a Member gives rise to a question under Rule 38 of the Senate Code of Official

Conduct. Although the Code does not contain any specific restrictions on the source of a mailing list, the

Committee has interpreted Rule 38 to mean that a Member may not accept goods and services in connection with

the carrying out of official Senate duties unless they are paid for with funds from one of the four sources listed

in the Rule. This would normally mean that the provision of a mailing list free-of-charge would constitute an

impermissible in-kind contribution to an office account.

However, the Committee has ruled that in-kind services provided by agencies of the Federal Government are not

subject to the Rule 38 restrictions, and goods and services provided by other Members of Congress would appear

to be similarly excepted. Therefore, the use of a Member’s computerized mailing lists would not be in violation

of Rule 38.

Should the borrowing Member intend to incorporate the mailing list in the Senate’s computer facilities, he or she

should be aware that Rule 40, paragraph 5, allows the use of those facilities only if the lists bear no

identification of individuals as campaign workers or contributors, as members of a political party, or by any other

partisan political designation.

INTERPRETATIVE RULING NO. 196

Date Issued: October 26, 1978

Applicable Rule: 40 and Franking

QUESTION CONSIDERED:

May an agency of the Federal Government, with whom a Senator is co-sponsoring a conference, print and affix

labels to franked envelopes to be used in mailing the invitations to the conference? The envelopes would be

returned to the Senate Service Department for stuffing and mailing.

RULING:

Paragraph 2 of Senate Rule 40 states that only official funds of the Senate shall be used to purchase paper, print

or prepare mass mailing material to be sent out under the frank. The Committee has determined, however, that

under the circumstances described, it would not be a violation of Rule 40(2) for an agency of the Federal

Government to print and affix address labels to franked envelopes to be used for the conference, provided such

printing and labeling services are generally available to all Members of the Senate.

Chapter 4, paragraph 2, of the ‘‘Regulations Governing the Use of the Mailing Frank’’ states ‘‘it is a privilege

which Senators and others must view as a personal responsibility and which must be vigilantly safeguarded against

abuse.’’ One such abuse would be an improper loan of the frank in violation of Section 3215 of Title 39 of the

United States Code. This Committee has previously ruled (Interpretative Ruling No. 66, September 26, 1977) that

the processing of franked mail by an outside organization would constitute an improper loan of the frank because

of the opportunity for abuse, such as the alteration of material or the diversion of franked envelopes that would

be presented. However, the Committee has determined that it would be permissible for a Member to delegate to

his or her staff the responsibility for ensuring that the process of affixing address labels to the franked envelopes

to be used in the conference is carried out by the agency in such a manner as to avoid any misuse which could

constitute an improper loan of the frank.

INTERPRETATIVE RULING NO. 197

Date Issued: October 31, 1978

Applicable Rule: 41, Code Of Official Conduct

QUESTION CONSIDERED:

Is it proper for Senate staff members to utilize annual leave time to carry out campaign-related activities?

RULING:

Except for Senate Rule 41, which prohibits anyone other than two designated employees on the staff of a Senator

from handling campaign funds, no rule expressly forbids campaign activity by staff members.

The Select Committee has previously ruled* that a Senator should either reduce the salary or remove an employee

from the Senate payroll when the employee intends to spend a substantial amount of time on campaign activities,

over and above leave time.

230 SENATE ETHICS MANUAL

The Committee recognizes that Senate staff members ought to be able to use bona fide vacation time in whatever

way they wish, including participation in a political campaign. So long as staff takes no more than established

and reasonable annual leave, the Committee is of the opinion that staff may engage in campaign activities while

on annual leave.

Rule 41’s restrictions on the handling of campaign funds by only two designees would, of course, remain

applicable.

—————

*See, for example, Interpretative Rulings No. 3, dated May 5, 1977; and No. 5, dated May 11, 1977;

INTERPRETATIVE RULING NO. 198

Date Issued: November 6, 1978

Applicable Rules: 38, 40

QUESTION CONSIDERED:

Would it be permissible under paragraph 1 of Rule 38 for a Senator to accept, at no cost to him, a computerized

mailing list of the names of members of a national labor union in the Senator’s home state from another Member

of Congress from that state, in order to communicate with the Senator’s constituents?

RULING:

While the Senate Code of Official Conduct does not contain any specific restriction on the source of mailing lists

acquired and used by Senators, the Select Committee has previously interpreted* Rule 38 to prohibit a Senator

from accepting any goods or services from private donors in connection with carrying out official Senate duties,

including communicating with constituents, unless those goods or services are paid for with funds available to the

Senator from one of the four designated sources listed in paragraph 1 of Rule 38.

However, the Committee has also ruled that in-kind services, when provided by agencies of the Federal

Government, are not subject to this restriction. This ruling was based, in part, on a prior determination of the

Federal Election Commission which stated that the Federal Government was not considered a ‘‘contributor’’ for

purposes of the Federal Election Campaign Act.

Based on this ruling, the Committee held in this case that goods and services provided to a Senator by other

Members of Congress are excepted from the limitations of Rule 38 and therefore that the acceptance of this

computerized mailing list at no cost from another Member of Congress would not violate Rule 38.

However, the Committee reminded the Senator that should he incorporate the mailing list in the Senate computer

facility, Rule 40, paragraph 5 would require that the list bear no identification of individuals as campaign workers

or contributors, as members of a political party, or by any other partisan political designation.

————

*See, Interpretative Ruling No. 44, dated July 18, 1977.

INTERPRETATIVE RULING NO. 199

Date issued: November 6, 1978

Applicable Rule and Area: 38 and Franking

QUESTION CONSIDERED:

Would it be proper for a Senator to conduct from his home state office a telephone survey of his constituents to

find out what issues are of concern to them in order to develop legislative priorities? In so doing may a Senator:

(1) use members of his staff and volunteers to conduct the survey?

(2) use the Senator’s frank to mail the surveys in bulk to his home office?

(3) accept the offer of a private group to use their telephone facilities free of charge?

(4) use telephone facilities provided by a Federal agency in the home state?

(5) use Senate allowances to (a) rent a telephone bank and (b) pay for use of computers of a non-government

organization to compile the survey results?

APPENDIX A 231

562 Interpretative Ruling No. 74, dated October 3, 1977. The Committee’s ruling in this instance applies to surveys

fitting the above description and does not apply to a survey which would be used in any manner deemed to be partisan

or political.

RULING:

(1) Telephone surveys of a Member’s constituents, when undertaken to better inform the Senator of the views and

concerns of his constituents, have been held by the Committee to be permissible under the Code of Official

Conduct. The Committee has previously ruled that Rule 38 does not prohibit the use of volunteers who perform

services for a Senator either in his Washington or home state office. 562

(2) The use of the mailing frank to send copies of the survey to a Senator’s district office is also proper.

(3) The Committee has consistently ruled that Rule 38 does prohibit a Senator from accepting in-kind

contributions of goods and services from private donors to defray office expenses. Therefore, it would be improper

for a Senator to accept non-governmental telephone facilities which might be offered at no cost.

(4) In contrast, the Committee has previously ruled that the Rule 38 restriction on in-kind contributions of goods

and services does not apply when the donor is an agency of the Federal Government or another Member of

Congress. (Interpretative Ruling No. 72, dated September 29, 1977.) Therefore, telephone facilities provided to a

Senator by a Federal agency may be used to conduct a telephone survey of constituents.

(5) The question as to whether Senate allowances might be used to pay for non-governmental telephone facilities

and/or computer time comes under the primary jurisdiction of the Committee on Rules and Administration which

approves vouchers drawn against Senate allowances.

INTERPRETATIVE RULING NO. 201

Date Issued: November 27, 1978

Applicable Rule: 34

QUESTION CONSIDERED:

For purposes of disclosing gifts of $100 or more, is a gift to a Member from several employees of a local high

school valued at its total cost, or is the value of the gift divided by the number of individual donors?

RULING:

Section 102(a)(2)(B) of the Ethics in Government Act requires reporting of ‘‘the identity of the source of all gifts

. . . aggregating $100 or more in value received from any source . . . during the preceding calendar year.’’ The

facts of this inquiry regarding the evaluation of a gift raise the question of the meaning of the phrase ‘‘any

source’’, i.e., is the donor of the gift the school, the school employees as a group, or several separate individuals?

If on the one hand, the gift is from the school or from the employees as a group, then it would be a gift from

one source, and the value would be its total cost. If the individuals who contributed toward its cost were

solicited, along with other school employees, with the intent to make a gift from the school or from the

employees as a group, or if the individuals when presented the gift asserted their common association with the

school, the presentation would appear to be a gift from one source.

If, on the other hand, the gift is from several persons acting as individuals, the transaction would be treated as

five separate gifts from five individuals, for reporting purposes, and the value of each gift would be the amount

that each individual contributed toward its cost. Thus, if the five school employees decided among themselves to

make a gift to the Senator and did so without soliciting contributions toward the cost of the gift from school

employees as a group, or if the employees presented the gift without asserting their common association, then the

facts would indicate that the gift is, in fact, from five persons acting as individuals.

[Note: The disclosure threshold for gifts is now $250.]

INTERPRETATIVE RULING NO. 204

Date Issued: December 5, 1978

Applicable Rule: 41

QUESTION CONSIDERED:

May a Senate employee hold a position as a political party’s precinct chairman?

232 SENATE ETHICS MANUAL

FACTS:

One of the functions of the position is the periodic solicitation of funds for state and local candidates. While none

of these funds go directly to candidates for Federal election, there have been instances when some of the funds

were used for literature in support of local, state and Federal candidates. In the case of this ‘‘joint campaign’’

literature, the Federal candidates contribute their own funds to cover their share of the cost of the literature.

RULING:

The Committee has previously determined* that Rule 41’s restrictions on staff campaign activities apply to

participation in Federal elections and not to state and local elections. So long as the state and local campaign

activities are clearly separate and distinct from any activities performed in connection with a Federal election, and

the activities do not interfere with Senate duties, a Senate employee would be permitted to participate in them.

The activities proposed in this case do not appear to involve the raising or use of funds for the purpose of

supporting Federal candidates. Therefore, the Committee believes Rule 41 would not prohibit those activities.

———

*See Interpretative Ruling No. 182, dated September 29, 1978.

INTERPRETATIVE RULING NO. 206

Date Issued: December 11, 1978

Applicable Rule: 38

QUESTION CONSIDERED:

Would Rule 38 prohibit a retiring Senator from directing his campaign committee to donate excess campaign

contributions to a tax-exempt, charitable organization which would use the funds to create a scholarship fund for

graduate students in the Senator’s name?

RULING:

Paragraph 2 of Rule 38 prohibits the conversion of campaign contributions to the personal use of any current or

former Senator. While ‘‘personal use’’ is not specifically defined, the Committee does not believe that donation of

excess campaign funds to or for the use of a tax-exempt state university to create a scholarship fund for worthy

graduate students from the Senator’s home state is the type of conversion to personal use prohibited by Rule 38.

Similarly, while there may be a nominal or constructive conversion of the funds by the Senator for purposes of

inclusion in his gross income for Federal income tax purposes, it may result in a ‘‘wash transaction’’ if an

offsetting charitable contribution deduction is available under section 170 of the Internal Revenue Code.

While the Committee ruled that the proposal would not be prohibited by Rule 38, it cautioned that it could

express no view as to the consequences of the proposal under the Internal Revenue Code or any other law.

INTERPRETATIVE RULING NO. 207

Date Issued: December 11, 1978

Applicable Area: Legislative Branch Appropriations

QUESTION CONSIDERED:

May an employee of one Senate office seek and receive compensation for part-time employment in another Senate

office?

RULING:

The Legislative Branch Appropriations Act of 1978 (Public Law 96–94) section 114, as amended by the

Legislative Branch Supplemental Appropriations Act of 1978, section 207, authorized the Senate Disbursing Office

to compensate an employee for work done in more than one office of a Senator, Senate officer or standing

committee, provided that the employee is paid on a yearly rather than an hourly basis.

No provision of the Code of Official Conduct would prohibit an employee of one Senate office from obtaining a

part-time position with another Senate office.

The Select Committee suggested that an employee seeking such an arrangement should notify the supervisor of

each position of the employment arrangement.

APPENDIX A 233

INTERPRETATIVE RULING NO. 213

Date Issued: December 22, 1978

Applicable Rule: 37

QUESTION CONSIDERED:

Would there be a conflict of interest or the appearance of a conflict if a private company were to continue

paying part of the salary of one of its employees while the employee worked full-time for a one-year period on

the staff of a Senate committee with primary legislative jurisdiction over the activities of the company?

Alternatively, would there be a possible conflict of interest if the employee retained his employment relationship

with his private company and was also retained, and compensated, by the Senate committee as a part-time

consultant?

RULING:

In the situation presented, a private profit-making organization would pay part of the salary of one of its

employees for the individual’s services as either a staff member or consultant to a Senate committee with

legislative jurisdiction over the activities of the private organization. It is the opinion of the Committee that this

arrangement might create the possibility of an actual conflict of interest or the appearance of such a conflict due

to the jurisdiction of the Senate committee over matters of interest to the private company.

If the committee wished to hire the individual as a part-time consultant and pay him out of committee funds for

his services to the committee, an appearance of a conflict of interest might arise since the individual would

continue to retain his employment relationship with his private employer. The Committee recognizes that, in

certain circumstances, an appearance of a conflict of interest arising from a consultant arrangement might be offset

by a Senate committee’s need to obtain specific expertise in a given area. The Committee will offer its guidance

as to the propriety of such an arrangement where the specialized skills of a particular individual appear necessary.

INTERPRETATIVE RULING NO. 214

Date Issued: December 22, 1978

Applicable Rule: 35

QUESTION CONSIDERED:

May a Member of the Senate accept payment from an entity with a direct interest in legislation before the

Congress for expenses he and his spouse incur during a two-day period following the Member’s scheduled

appearance before the entity? What limitations exist with respect to acceptance of such expenses?

RULING:

An organization with a direct interest in legislation before the Congress as this term is defined in paragraph 1(b)

of Rule 35, has invited a Senator to speak to the organization’s annual convention and subsequently remain at the

convention site for an additional number of days to attend various convention activities. The organization has

offered to provide the necessary expenses of transportation, food, lodging and entertainment for the Senator and

his spouse during the entire time that the Senator is at the convention. In addition, the Senator has scheduled a

briefing by a department of the executive branch in the same city for the day following the conclusion of his

appearance at the convention.

Under Senate Rule 35 a Member, officer, or employee of the Senate may accept necessary travel expenses from

the organization sponsoring his appearance. The Committee has ruled (Interpretative Ruling No. 89, dated

November 21, 1977), however, that necessary travel expenses would not include any expenses which are associated

with unrelated appearances or activities. Thus, if a second, unrelated appearance requires additional expenses, such

as an extra night’s lodging, the additional expenses would be subject to the prohibition in Rule 35 on gifts from

such organizations aggregating in excess of $100 in a calendar year.

The Committee stated that, if the Senator had remained at the convention for the purpose of participating in

convention activities, it would be permissible for the sponsor to cover the necessary expenses incurred in

connection with his participation in these activities. If, on the other hand, the Senator had remained at the

convention solely for the purpose of attending the briefing, or any other unrelated activity, the additional expenses

would be deemed to have been incurred in connection with the second activity and, if paid by the sponsor of the

first appearance, would be subject to the provisions of Rule 35, as noted above.

[Note: Rule 35 now prohibits reimbursement of necessary expenses of travel by a lobbyist. In addition, a Member

whose spouse accompanies her or him on officially related travel that is reimbursed by a third party must make a

written determination that the spouse’s attendance is appropriate to assist in the representation of the Senate.

Finally, reimbursement for additional expenses would be limited to $49.99]

234 SENATE ETHICS MANUAL

INTERPRETATIVE RULING NO. 215

Date Issued: December 23, 1978

Applicable Area: Nepotism

QUESTION CONSIDERED:

An individual who is considering employment in a Member’s office asked if it would be permissible to accept

such a position where the spouse of the Member is a cousin of one of the individual’s parents.

RULING:

While the Committee is not charged with the responsibility of enforcing Section 3110 of Title 5 of the United

States Code, which prohibits a public official (including Members of Congress) from employing or advocating the

employment of a relative in the agency in which he is serving, (an office, agency or other establishment in the

legislative branch is included with the definition of an agency), the Committee noted that, for the purposes of

Section 3110, a ‘‘relative’’ is defined as:

. . . an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt,

first cousin, nephew, niece, husband, wife, father-in-law, brother-in-law, sister-in-law, step-father, step-mother, stepson, step-daughter, step-brother, step-sister, half-brother, or half-sister.

Thus, the stated relationship to the Member would not fall within the prohibitions of Section 3110.

Moreover, based on the facts described, the Committee concluded that employment in the Member’s office would

not constitute improper conduct which may reflect upon the Senate, nor would it present the appearance of a

conflict of interest.

INTERPRETATIVE RULING NO. 216

Date Issued: January 5, 1979

Applicable Area: Foreign Gifts & Decorations Act

QUESTION CONSIDERED:

When a Senator is visiting a foreign country on official business, may he accept transportation, lodging and

hospitality from the host country in order to visit areas within that country when no commercial transportation

service is available or in circumstances when it would be an affront to the host government to refuse the

hospitality?

RULING:

The Foreign Gifts and Decorations Act (5 U.S.C. section 7342), permits the acceptance from foreign governments

of gifts of travel or expenses for travel taking place entirely outside the United States if such acceptance is

appropriate, consistent with the interests of the United States and is permitted by the Senate Select Committee on

Ethics (as the employing agency for Members, officers, and employees of the Senate).

The Committee has determined that the acceptance of such gifts of travel or expenses for travel (including

transportation, food and lodging) under the circumstances described above, would be appropriate and consistent

with the interests of the United States. Such a determination is made by the Committee on a case-by-case basis,

after a review of the facts of each instance.

Within 30 days after any Member, officer, or employee of the Senate (or his or her spouse or dependents) has

accepted travel or travel expenses for travel taking place entirely outside the United States, such Member, officer,

or employee must file a statement of information with the Select Committee.

INTERPRETATIVE RULING NO. 218

Date Issued: January 15, 1979

Applicable Rule: 37

QUESTION CONSIDERED:

What are the restrictions on a former Senate employee’s communicating with the Members and staff of a

committee for which he used to work? The employee plans to begin the practice of law, and his responsibilities

might include occasional discussions with Senators on behalf of a client regarding proposals of interest to the

APPENDIX A 235

client.

RULING:

A Senate committee staffer who leaves a committee position and becomes a registered lobbyist under the Federal

Regulation of Lobbying Act of 1946 or is retained by such a registered lobbyist for the purpose of influencing

legislation is prohibited by paragraph 9 of Rule 37 from lobbying Members and staff of the committee for which

he or she worked for one year after leaving the committee position. ‘‘Lobbying’’ is defined in paragraph 10(c) of

Rule 37 as any oral or written communication to influence the content or disposition of any issue before

Congress.

The Federal Regulation of Lobbying Act of 1946 applies to ‘‘any person . . . who . . . receives money or any

other thing of value to be used principally to aid, or the principal purpose of which person . . .’’ is to aid or

influence the passage or defeat of any legislation by the Congress of the United States (2 U.S.C. 266) and is not

applicable to those persons having only an incidental purpose of influencing legislation. (United States v. Harriss,

347 U.S. 612, 622 (1954)). One who does not meet the ‘‘principal purpose’’ test of the Lobbying Act (i.e., who

has only an incidental purpose of influencing legislation) is not required by the Act to register as a lobbyist;

consequently, the restrictions of paragraph 9 would be inapplicable to such persons.

However, failure to register under the Lobbying Act when required to do so would not render inapplicable the

restrictions in paragraph 9. The Committee believes that if one is engaged in the types of activities that are

regulated by the Lobbying Act, but fails to register under the Act, paragraph 9 of Rule 37 would nevertheless

apply to such a person.

The Committee noted that it has previously ruled* that if one or more partners or an associate of a law firm is a

lobbyist, then a former Senate employee, if hired in any capacity by that firm, is subject to the one-year lobbying

restrictions.

————

[Note: The Lobbying Disclosure Act of 1995, the successor statute to the Federal Regulation of Lobbying Act of

1946, requires individual lobbyists, as well as lobbying firms and organizations employing in-house lobbyists, to

register and file semi-annual reports.

In addition, Title 18, United States Code, Section 207 places broad restrictions on any contacts with Congress by

a former Member, or an officer or employee who was paid at a rate of at least 75% of a Member’s salary for a

period of at least 60 days during the last year of Senate service. These restrictions last for one year from the

date of termination, and carry criminal penalties for their violation.]

INTERPRETATIVE RULING NO. 224

Date Issued: January 30, 1979

Applicable Rule: 41, Ethics in Government Act

QUESTION CONSIDERED:

Are there circumstances under which the Committee would waive the applicability of the Code of Official

Conduct, pursuant to paragraph 5 of Rule 41, regarding an individual hired by a Senate committee for a limited

period of time on a per diem basis?

RULING:

A Senate committee was in need of technical expertise on a specific problem and agreed to hire, on a per diem

basis, several individuals from private industry, who have a specific expertise in the area of concern. These

individuals were to be employed by the committee for a very short period of time in the course of their

undertaking for the committee.

The Select Committee concluded that, based upon the unique qualifications of the individuals, and the limited time

period of their proposed employment, a waiver from the applicability of the Code of Official Conduct was

appropriate.

The Committee noted, however, that the Ethics in Government Act of 1978, Public Law 95–521, requires that any

individual who is an officer or employee of the legislative branch during any calendar year and performs the

duties of his position of office for a period in excess of sixty days in that calendar year and who is compensated

at a rate equal to or in excess of the annual rate of basic pay in effect for GS–16 of the General Schedule, must

file a financial disclosure statement with the Secretary of the Senate on or before May 15th of the succeeding

year. If a reporting individual were to begin his duties on or after January 1, 1979, section 101(c) of the Act

would require such an individual to file a ‘‘limited’’ financial disclosure statement within 30 days of assuming the

new position. While this requirement is apparently ambiguous with respect to the requirement of section 101(c) of

the Act that disclosure need only be made by those individuals who perform the duties of their positions for more

than 60 days in a calendar year, the Select Committee has interpreted section 101(c) to only require limited

236 SENATE ETHICS MANUAL

disclosure, within 30 days of assuming their positions by those employees who begin work on or after January 1,

1979 and who have committed themselves to work or who reasonably believe that they will be working for more

than 60 days in the calendar year.*

The Committee further held that should circumstances change after these individuals begin their assignments with

the Senate committee, and they either make a specific commitment or come to reasonably believe that they will

be working for 60 days or more, these individuals would be required to file disclosure statements pursuant to

section 101(c) of the Act immediately upon learning of the changes in their employment arrangements. The Act

defines an ‘‘officer or employee of the Senate’’ as an individual, other than a Senator or the Vice President,

whose compensation is disbursed by the Secretary of the Senate. The Act contains no authority by which this

Committee could grant a waiver of the reporting requirement.

————

*Subsequent to this ruling, the interpretation was enacted as an amendment to the Ethics in Government Act of

1978 by Public Law 96–19.

INTERPRETATIVE RULING NO. 227

Date Issued: January 30, 1979

Applicable Rule: 37

QUESTION CONSIDERED:

May a Senate employee, whose Senate subcommittee responsibilities include work on oversight and authorization

legislation concerning the Federal government’s school lunch program, undertake outside professional activity in the

form of service on an advisory committee of a state government department which promotes the use of

agricultural products grown in the state through various school nutrition programs?

FACTS:

The advisory committee has been established to review educational materials and to comment on proposed projects

for the department relative to a state-sponsored program which relies, in part, upon Federal assistance. The Federal

assistance is authorized by legislation which is handled by the employee’s subcommittee. The department has

proposed to provide the Senate employee with an ‘‘honorarium’’ of $500 and expenses for the employee’s

attendance at each meeting of the advisory committee.

RULING:

While the remuneration to be provided by the department is characterized by the payor as an ‘‘honorarium’’, the

Committee concluded that the arrangement was compensation for recurring professional services.

Paragraph 2 of Rule 37 directs that no employee of the Senate shall engage in any outside professional activity or

employment for compensation which is inconsistent or in conflict with the conscientious performance of that

employee’s official duties. In this factual situation, the Committee ruled that because of the nature of the

employee’s responsibilities with the employing Senate subcommittee, acceptance of the invitation to serve on the

advisory committee could lead to an actual conflict or the appearance of a conflict of interest with the employee’s

conscientious performance of Senate duties.

INTERPRETATIVE RULING NO. 233

Date Issued: March 9, 1979

Applicable Rule: 37

QUESTION CONSIDERED:

May a lawyer continue to represent several clients in connection with certain cases after that individual has

become a Senate employee? The cases in question are either personal injury cases or matters relating to estate

planning and administration. The cases do not conflict with the employee’s work for the Senator and the work

will not be done during regular office hours.

RULING:

Senate Rule 37, paragraph 3, requires that the supervisor of a Senate employee make the initial judgment as to

whether a proposed outside business or professional activity would present a conflict of interest because of either

the time required by the activity or the nature of the activity itself. Paragraph 3 of Rule 37 further requires that

the supervisor take such steps as are considered necessary for the avoidance of conflict or interference with an

APPENDIX A 237

employee’s duties to the Senate. Senate Rule 37, paragraph 5, provides that no Member or Senate employee

compensated at a rate in excess of $25,000 a year and employed in excess of 90 days in a calendar year may:

(a)affiliate with a firm, partnership, association, or corporation for the purpose of providing professional services

for compensation;

(b)permit the individual s name to be used by such a firm, partnership, association, or corporation;

(c) practice a profession for compensation to any extent during regular office hours of the Senate office in which

employed.

The Committee noted in a previous Interpretative Ruling*, that this provision restricts, but also contemplates, some

practice outside office hours or an annual leave time.

In this situation, the Committee concluded that it would be proper for the Senate employee to finish work on

those cases which have been described so long as the individual does so as a sole practitioner of law, i.e., not in

connection with a law firm. Specifically, the employee’s name should not be used by a law firm nor should he

receive any partnership proceeds from a law firm for work done by him after he has begun Senate employment.

In addition, after beginning work as a sole practitioner, it would not be deemed improper for him to distribute to

the law firm a portion of any fees earned in connection with those cases begun when he was a partner of the

firm, if that portion of the fees distributed to the firm is pursuant to a financial arrangement which existed before

he left the firm.

———

*Interpretative Ruling No. 70, dated September 29, 1977.

INTERPRETATIVE RULING NO. 236

Date Issued: March 19, 1979

Applicable Area: Franking

QUESTION CONSIDERED:

What is the definition of a ‘‘page’’ for purposes of the personal reference rule in the Franking Regulations, which

limits personally phrased references to a Senator in a franked mailing to no more than five per page.

RULING:

The Committee has determined that a ‘‘page’’ for purposes of the limitation on the number of personally phrased

references to a Senator in a franked mailing, is each side of an 8 1/2′′ x 11′′ or 8 1/2′′ x 14′′ sheet of paper,

irrespective of the number of folds utilized in the design of the matter mailed. Thus, if a newsletter is on a legalsize sheet of paper and has print on both sides, it would be a two-page newsletter for purposes of the Franking

Regulations, even if the paper were folded to resemble a four-page ‘‘pamphlet.’’ The Committee noted that this

interpretation is in accord with the definition of a sheet of paper used by the Committee on Rules and

Administration for purposes of Members’ paper allowances.

INTERPRETATIVE RULING NO. 237

Date Issued: March 21, 1979

Applicable Rule: 37

QUESTION CONSIDERED:

Is it proper for a Senator to write a Federal Bankruptcy Judge for the purpose of a motion submitted to the

Judge by a group of constituents?

FACTS:

A corporation doing business in the Senator’s State is undergoing reorganization proceedings under the Bankruptcy

Act. An Association of employees and users of the Corporation’s services in the State has filed a motion to

intervene in the Bankruptcy Court proceedings and the Senator states that the Association has asked him to

contact the Bankruptcy Judge to express his support for the motion. The Member also states that while he

supports the intervention by the Association on its merits, he is concerned that direct involvement might be an

improper use of Senatorial influence.

238 SENATE ETHICS MANUAL

RULING:

The Member does not indicate that he intends to become a party in the matter or that he intends to submit an

amicus curiae brief in conformity with the Court’s rules of procedure. Accordingly, the Committee determined that

it would be improper for the Member to contact the Bankruptcy Judge in the manner outlined because the manner

in which the Senator chose to make his views known to the court was outside the formal procedure established

by the court.

INTERPRETATIVE RULING NO. 238

Date Issued: March 26, 1979

Applicable Rule: 37, Ethics in Government Act

QUESTION CONSIDERED:

Would there be an actual or apparent conflict of interest if a committee were to hire, on a per diem basis for a

maximum of 60 days, an attorney from a law firm to work exclusively on a single piece of legislation? The

attorney would have no other duties or responsibilities as regards any other legislation which might come before

the committee. If neither an actual nor an apparent conflict were found, would a waiver from the applicability of

paragraph 9 of Rule 37, the Post-Employment Lobbying Restriction, be appropriate?

FACTS:

The Select Committee was informed of the following facts: (l) that in the past, certain individuals in the

attorney’s law firm had been registered under the Regulation of Lobbying Act of 1946; the Select Committee

determined that neither the attorney nor any other person associated with his firm were currently registered; (2)

that the attorney currently serves as outside counsel to a tax-exempt organization which is engaged in a number

of public policy research studies, including one in the area of products liability; the Select Committee determined

that while legislation affecting products liability laws has been introduced in the past and may be re-introduced in

the current Congress, any legislation would not be referred to the attorney’s committee, the tax-exempt

organization would have no financial interest in such legislation, the organization is restricted by the Internal

Revenue Code with respect to its lobbying activities, and the attorney’s duties with the committee would not

involve any work on products liability legislation; (3) that the attorney represents several beneficiaries of a trust

which has an interest in a Federal condemnation proceeding now underway in a state; the Select Committee

determined that while the bulk of funds necessary to effect the condemnation had already been appropriated, an

additional appropriation might be sought during the current year and that if this were the case, the attorney’s

committee would have no responsibility for such an appropriation; (4) that the attorney’s law firm is representing

a client who is pursuing a claim against the United States for the death of the spouse and the firm may seek the

introduction of a private bill of relief in the Senate; the Select Committee determined that if such a private relief

bill were introduced, although it would be referred to the attorney’s committee, the firm agreed that any recovery

from such a private bill would be handled on a ‘‘pro bono’’ rather than contingent fee basis and the attorney

would not involve himself in any way with the committee’s review of the matter.

RULING:

Based upon these factual determinations, the Select Committee ruled that it did not appear that the attorney’s

duties to his law firm would present either an actual conflict or the appearance of a conflict of interest with his

responsibilities to the committee which proposes to hire him. However, the Select Committee reminded the

inquiring Senator, who would supervise the attorney, that paragraph 3 of Rule 37 on Conflict of Interest prohibits

a Senate employee from engaging in any outside business or professional activity or employment for compensation

unless he has described such activity in writing to his supervisor. The rule also places a continuing responsibility

on the supervisor to take such action as is necessary for the avoidance of conflict of interest. Thus, any change in

the attorney’s activities, or those of his law firm and its clients, would be a critical consideration during the time

the attorney is employed by the committee.

The Select Committee also addressed the request for a waiver of the post-employment lobbying restriction found

in paragraph 9 of Rule 37, which is applicable to all Senate employees, including those who are hired as

consultants on a per diem basis. Paragraph 5 of Rule 41 authorizes the Select Committee, in its discretion, to

grant waivers from the applicability of any provision of the Code of Official Conduct to an employee hired on a

per diem basis, ‘‘in exceptional circumstances for good cause shown.’’ Should circumstances arise during the

period of the prohibition of paragraph 9 of Rule 37, the Committee stated it would consider the appropriateness of

a waiver. The Committee said it did not believe a waiver was intended to be used as an inducement to

employment against the possibility that an exceptional circumstance might arise at some future time.

The Select Committee also reminded the inquiring Senator that Section 101(c) of the Ethics in Government Act of

1978, Public Law 95–521, requires that a reporting individual who begins his duties with the legislative branch on

or after January 1, 1979, must file a ‘‘limited’’ financial disclosure statement within thirty days of assuming the

new position. However, the Select Committee has interpreted this provision to apply to employees who have

committed themselves to work or who reasonably believe that they will be working for more than sixty days in

APPENDIX A 239

the calendar year.* The Select Committee stated that should circumstances change and the attorney in question

becomes aware that he would be working for more than 60 days, he would become obligated to file the required

financial disclosure statement immediately upon learning of the changes in his employment arrangement.

In response to his specific request that any additional Federal laws or regulations pertaining to the hiring of the

attorney be cited, the Senator was informed that 18 U.S.C. 203(a)(2), a criminal statute under the jurisdiction of

the Department of Justice, would appear to restrict officers and employees of the United States (including the

legislative branch) from involvement in proceedings in which the United States is a party. However, the Select

Committee noted that the statute provides an exception for certain individuals who are defined as ‘‘special

government employees’’, and that the Senator might wish to consider whether the attorney would fall within that

status and thus not be subject to the limitation.

————

*Subsequent to this ruling, the interpretation was enacted as an amendment to the Ethics in Government Act of

1978 by Public Law 96–19.

INTERPRETATIVE RULING NO. 241

Date Issued: March 29, 1979

Applicable Rules: 38, 40

QUESTION CONSIDERED:

Is it permissible for a non-profit, non-partisan educational and business organization to print and affix mailing

labels to envelopes bearing a Senator’s frank to be used in a mass mailing to members of that organization in

that Senator’s state?

RULING:

Senate Rule 40.2 requires that only official Senate funds be used ‘‘to purchase paper, to print, or to prepare any

mass mailing which is to be sent out under the frank.’’ Additionally, Senate Rule 38 prohibits the use of funds

or in-kind contributions of goods or services from sources other than those enumerated in the Rule to defray

expenses incurred by the Member in connection with his official duties.

The Committee has ruled that in-kind services provided by Federal agencies are not subject to the prohibitions of

Rule 38 discussed above or of Rule 40.2, if such services are generally available to all Members of the Senate.*

However, these exceptions to Senate Rule 38 and Rule 40 would not be applicable in this case. Accordingly, a

Senator must reimburse an outside organization, out of official Senate allowances, for the reasonable cost of the

labels and of the printing and labeling services provided by that organization in connection with a franked mass

mailing.

The Committee further noted that, in Interpretative Ruling No. 66, dated September 26, 1977, it ruled that the

affixing of mailing labels, by an outside organization, on franked envelopes which previously had been stuffed and

sealed in the Senate, would constitute a transfer of franked envelopes in violation of Section 3215 of Title 39 of

the United States Code. That provision states that ‘‘a person entitled to use a frank may not lend it or permit its

use by any committee, organization, or association,’’ not itself entitled to use the frank. In the Committee’s view,

the opportunity for misuse or diversion of franked envelopes, even though previously stuffed and sealed by the

Senate Service Department, is so great as to be tantamount to a loan of the frank.

The Committee has also ruled in Interpretative Ruling No. 196, however, that it would be permissible for labels

to be affixed by an outside organization to unstuffed and unsealed franked envelopes if the labeling process is

carried out under the supervision of a member of a Senator’s staff and in such a manner as to avoid any misuse

which could constitute an improper loan of the frank. The franked envelopes should then be returned to the

Senate under the supervision of a Senate staff member for stuffing and mailing.

The Committee also points out that in preparing any mail matter to be sent out under the frank, care must be

taken to avoid giving the impression that the outside organization is in any way sponsoring the mailing, since to

do so would constitute an improper loan of the frank.

[NOTE: Offices planning to send a mass mailing by having labels affixed to unstuffed and unsealed franked

envelopes as outlined above should also contact the Rules Committee, which has jurisdiction over several

provisions relating to the preparation of mass mailings.]

————

*Interpretative Ruling No. 196, dated October 26, 1978.

INTERPRETATIVE RULING NO. 243

240 SENATE ETHICS MANUAL

Date Issued: March 29, 1979

Applicable Rules: 34, 37, Ethics in Government

QUESTION CONSIDERED:

May a Senator participate, without compensation, on the Advisory Board of a tax-exempt educational institution?

RULING:

Senate Rule 37 prohibits Members, officers, and employees of the Senate from engaging in any outside business

or professional activity which is inconsistent or in conflict with the conscientious performance of official duties. It

is the Committee’s understanding that the particular institution is an independent organization, is not affiliated with

any other organization or group and does not seek Federal funds for any of its activities. Based on these

circumstances, the Committee held that a Senator’s participation on the board of such an institution would not be

in violation of any specific provisions of the Senate Rules, nor would it, in and of itself, present any actual or

apparent conflict of interest.

The Committee noted that a Senator’s membership on such a board would be reportable under Senate Rule 34

(Title I of the Ethics in Government Act).

INTERPRETATIVE RULING NO. 249

Date Issued: April 27, 1979

Applicable Area: Franking

QUESTION CONSIDERED:

May a Senator make use of the mailing frank for sending ‘‘express mail’’ from his/her office?

RULING:

While nothing in the statute authorizing the use of the mailing frank, 39 U.S.C. 3210, et seq., would prohibit the

use of the frank for ‘‘express mail’’, the Senate Postmaster has indicated that, because of practical considerations,

such use could not be authorized at this time. He has further stated that in order for the mailing frank to be

utilized in this manner, the Postal Service would first have to establish a special unit to monitor the use of the

frank for this and other ‘‘special services’’, including registered, certified, insured, and special delivery mail.

INTERPRETATIVE RULING NO. 251

Date Issued: April 27, 1979

Applicable Rules: 34, 35, 38, Ethics in Government

QUESTION CONSIDERED:

May a Senator accept an unsolicited gift of certain newspapers which have been provided to him on a daily basis,

via air courier, by a company engaged in the air courier and air freight business?

RULING:

Senate Rule 38 prohibits the acceptance of funds (other than personal and campaign funds) to defray expenses

incurred by a Senator in connection with his official Senate duties. The Committee has consistently ruled* that inkind contributions of goods and services by outside sources for official expenses are subject to the prohibitions of

Rule 38. In response to the present question, the Committee ruled that if unsolicited donations of newspapers

(including postage or air freight charges, if any) were not contributions to ‘‘expenses incurred by a Member in

connection with the performance of his official duties’’, they would not be subject to the prohibitions of Rule 38.

Acceptance of such gifts of goods and services would be permissible, as long as the donor is not a prohibited

source within the meaning of Paragraph 1(b) of Rule 35, or the aggregate value of the gifts received from a

donor who is a prohibited source does not exceed $100 in a calendar year.

In determining the value of such donations for the purposes both of Rule 35 and of Rule 38, where applicable,

the Committee ruled that the value of goods and services received would be the retail or fair market value of the

goods or services, rather than the cost to the donor of providing such goods or services. The Committee noted

that such gifts may be reportable under Senate Rule 34 (Title I of the Ethics in Government Act of 1978).

———

APPENDIX A 241

*See Interpretative Ruling No. 199, dated November 6, 1978; and No. 44, dated July 18, 1977.

[Note: Under the current Gifts Rule, a Member may accept a gift of ‘‘informational materials’’ that are sent to

the Member’s office without being subject to the dollar limit of less than $50 per gift, or a yearly aggregate of

less than $100 from the same source, if the informational material is sent to the Member by the author, publisher,

or producer. Otherwise, such a gift is subject to the dollar restrictions of the Gifts Rule.

Thus, in this circumstance, as the company is not the author, publisher, or producer of the newspapers, a Member

may accept a gift of the newspapers only if the retail cost is less than $50; a Member may accept multiple gifts

of newspapers, valued at less than $50, from the same source, as long as the aggregate value of such gifts is less

than $100 for a calendar year.

If the retail value of the gift of newspapers is less than $10, the gift would not count toward the yearly

aggregate limit for acceptance of gifts from one source. However, a Member may not accept repeated gifts valued

at less than $10 from the same source, thereby circumventing the yearly aggregate limit on gifts.]

INTERPRETATIVE RULING NO. 255

Date Issued: May 10, 1979

Applicable Rules: 38, 40

QUESTION CONSIDERED:

May a Senator accept without charge from a White House Conference on Small Business a computer list of 6,000

names and addresses of his or her business constituents for inclusion in the Senator’s Senate computer file? The

Conference’s computer list is non-partisan in character and would be available to any Member of the Senate who

desired to obtain it.

RULING:

Senate Rule 38 prohibits the acceptance of goods and services by Senators in connection with official duties

unless they are paid for with funds from one of the four sources listed in the Rule. However, the Committee has

previously ruled* that in-kind services provided by agencies of the Federal government are not subject to the Rule

38 restrictions. The computerized mailing list provided by the White House Conference falls under this exception.

The Committee noted that under Rule 40, paragraph 5, the mailing list may only be incorporated into the Senate’s

computer facilities if the lists bear no identification of individuals as campaign workers or contributors, as

members of a political party, or by any other political designation.

————

*See Interpretative Rulings No. 196, dated October 26, 1978; No. 195, dated October 18, 1978; and No. 74, dated

October 3, 1977.

INTERPRETATIVE RULING NO. 257

Date Issued: May 14, 1979

Applicable Rule: 37

QUESTION CONSIDERED:

May a former employee of a Senate committee resume employment with the same committee if he is in the

process of putting together a business venture in the same field in which his committee work will be concerned?

The individual is considered an expert in this particular field.

RULING:

The Committee believes that if this individual were to be retained by his former committee, questions might be

raised under Senate Rule 37, Conflict of Interest. Paragraph 5 of Rule 37 prohibits a Senate employee,

compensated at a rate in excess of $25,000 per year and employed in excess of 90 days per year, from (a)

affiliating with a firm, partnership, or association for the purpose of providing professional services for

compensation; (b) permitting the use of the individual’s name by such an entity; or (c) practicing a profession for

compensation to any extent during regular Senate hours of the office in which the individual is employed. The

legislative history of this provision makes clear that the prohibition was meant to include services performed as a

consultant.

The Committee believes, however, that because the business venture is in the initial stages, paragraph 5 of Rule

37 would not bar such activities. At some later date, depending on the nature of the individual’s activities in

242 SENATE ETHICS MANUAL

connection with the venture, application of this provision may operate to bar such activities.

Paragraphs 2 and 3 of Rule 37 are also pertinent. Paragraph 2 prohibits outside business activities which create a

conflict of interest or the appearance of such a conflict; paragraph 3 requires an employee’s supervising Senator to

take such action as is necessary to avoid conflicts of interest.

The Committee believes that the proposed situation might raise the possibility of a conflict of interest because the

individual’s outside business activities and Senate duties appear to overlap in subject matter. However, the

Committee has recognized in prior rulings that the Code places the initial responsibility for avoidance of conflict

of interest on an employee’s supervising Senator. A judgment as to whether a situation may create a conflict, or

the appearance thereof, requires continuing attention to both the individual’s Senate work assignments and outside

activities, which this Committee is not in a position to provide.

INTERPRETATIVE RULING NO. 261

Date Issued: May 22, 1979

Applicable Rules: 34, 35, Foreign Gifts and Decorations Act, Mutual Educational and Cultural Exchange Act

QUESTION CONSIDERED:

May an employee of the Senate travel to a foreign nation at its expense for the purpose of participating in

discussions with government officials of that nation concerning legislative matters of mutual interest?

RULING:

Article I, Section 9, Clause 8, of the U.S. Constitution prohibits employees of the Federal Government, absent the

consent of Congress, from accepting any gift, to include the expenses of foreign travel, from any foreign

government. The Congress has consented to the acceptance of such gifts in two specific instances: the Mutual

Educational and Cultural Exchange Act (22 U.S.C. 245l et seq.) with respect to activities arranged by the State

Department, and the Foreign Gifts and Decorations Act (5 U.S.C. 7342) which permits the acceptance of travel or

the expenses thereof taking place entirely outside of the United States.

The Committee has been informed that this invitation is made under the aegis of a program which has been

approved by the Department of State under section 108(A) of the Mutual Educational and Cultural Exchange Act.

The Committee has determined that participation in the program is in the interest of the Senate and the United

States, and that its principal objective is educational, pursuant to paragraph 4(a) of Rule 35. Funds provided in

connection with this program may not be accepted if not used for necessary food, lodging, transportation and

related expenses (Rule 35(4)(c)).

Reimbursement of transportation, lodging, and food or entertainment aggregating $250 or more is reportable under

the Ethics in Government Act of 1978.

INTERPRETATIVE RULING NO. 263

Date Issued: June 12, 1979

Applicable Rule: 41

QUESTION CONSIDERED:

May the press secretary of a Senator: (1) accompany the Senator on trips which are partly or wholly campaignrelated (with such campaign expenses being defrayed by the Senator’s principal campaign committee); (2) respond

to press inquiries of a campaign-related nature; or (3) advise the Senator and the campaign staff of press-related

political activities? The Committee was told that such activities would not result in a neglect of the press

secretary’s Senate duties.

RULING:

This Committee has previously noted, in response to requests concerning the propriety of involving Senate staff in

election campaigns, that the Committee on Rules and Administration was directed by the Senate to study this

question and report proposals to prevent the misuse of official staff by holders of public office in Federal election

campaigns. (S. Res. 110, 95th Cong., lst Sess., section 308(1977)). Pending completion of this study, this

Committee has offered the following guidance.

Other than the restrictions on political fund activity in Senate Rule 41, no rule expressly prohibits campaign

activity by staff during off-duty hours or during established and reasonable annual leave time. In addition, the

Committee stated that Senate employees may engage in limited campaign-related activities during regular Senate

APPENDIX A 243

hours, provided that the time involved is de minimus and such activity does not interfere with the employee’s

official Senate duties. However, if an employee intends to spend a substantial amount of time on campaign

activities, the Committee has ruled that a Senator should use his or her best judgment in determining whether to

remove the staff member from the Senate payroll or reduce his or her Senate salary commensurately.*

With respect to the specific questions posed, the Committee stated that the Senator must use his or her best

judgment in determining whether it would be appropriate to remove the staff member from the Senate payroll or

reduce his or her Senate salary.

The Committee recognized that the distinction between political activities which are official and those which are

campaign-related is at times difficult to draw. The Committee was aware of no specific prohibitions which would

bar a Senator’s press secretary from responding to news media questions concerning the Senator’s activities,

including those of a political nature.

———

*See Interpretative Ruling No. 59, dated September 13, 1977.

INTERPRETATIVE RULING NO. 266

Date Issued: June 13, 1979

Applicable Rule and Area: 34, Ethics in Government Act of 1978

QUESTION CONSIDERED:

Does the existence of an exploratory committee, established on behalf of an individual to determine the

plausibility of his candidacy for the Senate, make him a ‘‘candidate’’ for the purpose of Rule 34 (Title I of the

Ethics in Government Act of 1978)?

RULING:

Provided that an individual has not taken the action necessary under law of the state in which he is running for

nomination for election, or election, and the exploratory committee continues to receive contributions and make

expenditures for the sole purpose of determining whether the individual should become a candidate for the Senate,

it is not required that a Public Financial Disclosure Report be filed with the Secretary of the Senate. However,

should the individual at a later date (1) decide to become a candidate for the Senate, (2) take any action

necessary under the state law for nomination for election, or election to the Senate, or (3) the individual or the

exploratory committee receives contributions or makes expenditures for purposes other than determining whether

the person should become a candidate for the Senate, the individual would then be deemed to have been a

‘‘candidate’’, for the purposes of Senate Rule 34 (Title I of the Ethics in Government Act of 1978), as of the

date his exploratory committee first received any contributions or made expenditures to ‘‘test the waters.’’

[NOTE: Since the Ethics Reform Act of 1989 added a $200 filing fee for reports filed more than 30 days after

the due date, Committee practice has established that for purposes of the fee the due date is the date an

individual becomes a candidate, not the date the individual began to ‘‘test the waters’’.

INTERPRETATIVE RULING NO. 269

Date Issued: June 26, 1979

Applicable Rules: 37, 41*

QUESTION CONSIDERED:

What conflict of interest considerations pursuant to Senate Rule 37 may arise in the following situation?

A member of a Senator’s staff will soon be removed from the Senate payroll in order to accept a position with

the Senator’s campaign staff. This individual has accrued vacation time in excess of 30 days. Office policy would

allow a staff member to be carried on the payroll, after actual employment has ended, until the amount of unused

vacation time is reached, but would not allow the individual to carry forward any such vacation time if she were

re-employed by the Senator’s office in the future. Therefore, the Senator has proposed that the individual be

retained on the Senate payroll until her accrued vacation time has been exhausted and thereafter be entered on the

Senator’s campaign staff payroll. During this ‘‘vacation period’’, the individual will begin working on campaign

related matters.

RULING:

Paragraph 3 of Rule 37 on Conflict of Interest provides with respect to outside employment for compensation that

a Senator upon learning of a staff member’s proposed outside activities, take such action necessary to avoid any

244 SENATE ETHICS MANUAL

apparent or actual conflict of interest with a staff member’s Senate duties. In addition, Senate Report 95–241 of

the Committee on Rules and Administration states that it is not a violation of law nor any Senate rule for a

member of a Senator’s staff to work full-time in a political campaign while on annual leave or vacation time.

The Committee finds no difficulty under the Code of Official Conduct for the staff member to accept employment

with the Senator’s campaign committee under the terms outlined.

————

*See Interpretative Rulings No. 3, dated May 5, 1977, No. 6, dated May 11, 1977, No. 22, dated May 26, 1977,

No. 32, dated June 27, l977, No. 49, dated August 5, 1977, No. 59, dated September 13, l977 and No. 88, dated

November 16, 1977.

INTERPRETATIVE RULING NO. 270

Date Issued: June 26, 1979

Applicable Area: Advisory Opinion on Use of Senate Letterhead, Franking

QUESTION CONSIDERED:

Does the Ethics Committee’s August 24, 1978 Advisory Opinion on Use of Senate Letterhead prohibit a Senator

from mass mailing a number of letters, using letterhead with his name followed by the words ‘‘United States

Senator’’, on behalf of another person, organization or cause?

RULING:

The Advisory Opinion prohibits a Senator from authorizing any non-Senate group to use the words ‘‘United States

Senate’’, whether or not such words are followed by the designation ‘‘official business.’’ The limitation on the

use of the name of the institution by non-Senate groups was intended to preclude a mistaken impression by the

recipient of the fund-raising letter, that the letter was an official communication from the Senate.

The Advisory Opinion does not preclude a Senator from authorizing a non-Senate group to use letterhead which

recites the Senator’s name, followed by the words ‘‘United States Senator.’’

While the final sentence of the Advisory Opinion was intended to allow a Senator to use his letterhead, including

the words ‘‘United States Senate’’, for his own personal purposes, that sentence would not authorize a Senator to

sign a single copy of a fund-solicitation appeal on his ‘‘United States Senate’’ letterhead for subsequent

duplication and mailing by a non-Senate group.

If the Senator were personally writing any number of individuals seeking funds on behalf of a particular cause or

group, the Advisory Opinion would not preclude the use of his letterhead with the words ‘‘United States Senate.’’

In conclusion, 39 U.S.C. 3215, the Franking Statute, bars the use of a Senator’s frank for any of these mailings,

no matter who prepared and mailed the letters. That section states that a person who is entitled to use the frank

may not lend it or permit its use by any committee or organization. In addition, 2 U.S.C. 439b prohibits the use

of the frank in any mailing which solicits funds.

INTERPRETATIVE RULING NO. 271

Date Issued: June 28, 1979

Applicable Area: Advisory Opinion on the Use of Senate Letterhead, Miscellaneous

QUESTION CONSIDERED:

May a Senator use stationery which identifies his party affiliation and position on Senate committees in connection

with his campaign for re-election to the Senate? The stationery also includes an emblem which appears to

represent the great seal of the United States.

RULING:

The Committee concluded that it is not improper for a Senator to include his position and memberships upon

committees of the Senate on stationery to be used in connection with an election campaign.

With respect to the emblem on the stationery, however, the Committee notes that 18 U.S.C. 713 prohibits the use

of ‘‘any printed or other likeness of the great seal of the United States . . . or any facsimile thereof, . . . on any

. . . stationery, for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression

of sponsorship or approval by the Government of the United States . . .’’

APPENDIX A 245

INTERPRETATIVE RULING NO. 273

Date Issued: July 9, 1979

Applicable Rules: 37, 41

QUESTION CONSIDERED:

May a Senator hire an employee who also serves as a member of a state legislature of the State which the

Senator represents? The employee would carry out normal staff functions but would not be one of the two staff

members authorized by Rule 41 to engage in campaign fundraising activities. The state legislature meets for

several months per year and its members are compensated at a rate of $200 a biennium, plus mileage.

RULING:

Rule 37, paragraph 2, prohibits Senate employees from engaging in outside activity for compensation which is

inconsistent or in conflict with official duties. Paragraph 3 of Rule 37 places the responsibility upon the

employees’ supervisor, which in this instance would be the Senator, to take such action considered necessary to

avoid a conflict of interest or interference with Senate duties.

While the Committee cannot predict whether in fact this outside activity will conflict with Senate duties, or will

result in conflict of interest in connection with a particular issue, the Committee suggests that, if hired, the

employee be advised that the Senator will monitor the situation and consider whether a salary adjustment or

restriction in Senate duties would be appropriate during those periods when the state legislature is in session. The

Committee believes this approach to the matter would be in conformity with paragraph 3 of Rule 37.

INTERPRETATIVE RULING NO. 275

Date Issued: July 17, 1979

Applicable Rules: 34, 37, 41

QUESTION CONSIDERED:

What is the applicability of the Senate Code of Official Conduct to a proposed employment arrangement whereby

a Senator would hire a partner from a law firm located in his home State for a nine-month period, during which

time the lawyer would be on leave from the firm but would receive a lump sum sabbatical payment? The law

firm represents many leading corporations in the State and has clients which employ registered lobbyists or are

themselves registered lobbyists. The staff member would be compensated by the Senate at a rate less than $25,000

per year.

RULING:

The ruling request poses four questions for consideration. (l) Does the proposed arrangement create a conflict of

interest problem as contemplated by Rule 37(a)? (2) Would the prohibition against affiliation with a firm in Rule

37(5) be applicable in this situation? (3) Would the individual be required to file a financial disclosure statement

under Rule 34? (4) Would the post-employment lobbying prohibition of Rule 37(9) restrict the lobbying activities

of the law firm?

l. Does the proposed arrangement create a conflict of interest problem under Rule 37(2)?

Rule 37(2) of the Senate Code of Official Conduct provides that: No Member, officer, or employee shall engage

in any outside business or professional activity or employment for compensation which is inconsistent or in

conflict with the conscientious performance of official duties.

The Nelson Committee Report, which accompanied Senate Resolution 110 (Senate Code of Official Conduct),

noted that this provision ‘‘should be read to prohibit any outside activities which could represent a conflict of

interest or the appearance of a conflict of interest.’’ S. Rept. 49, 95th Cong., lst Sess. 41 (l977). As the law firm

represents many leading corporations in the Senator’s State and in addition has clients who maintain registered

lobbyists or are registered lobbyists themselves, the Committee is of the opinion that the proposed employment of

a partner in the firm could result in an actual or apparent conflict of interest between the client’s interests and the

responsibility of the partner as a Senate employee.

The Committee noted that under paragraph 3 of Rule 37, it is the supervisor of a Senate employee who has the

initial and continuing responsibility of determining whether a proposed situation creates a possible conflict. The

supervisor is further responsible for monitoring the situation in order to determine what action, if any, may be

‘‘necessary for the avoidance of conflict of interest or interference with duties to the Senate.’’

2. Would the prohibition against affiliation with a firm provided in Rule 37(5) be applicable to this situation?

Rule 37(5) states, in pertinent part, that: ‘‘No Member, officer, or employee of the Senate compensated at a rate

246 SENATE ETHICS MANUAL

in excess of $25,000 per annum and employed for more than ninety days in a calendar year shall (a) affiliate

with a firm . . . for the purpose of providing professional services for compensation; (b) permit that individual’s

name to be used by such a firm . . . or (c) practice a profession for compensation to any extent during regular

office hours of the Senate office in which employed.’’

The question is whether the sabbatical pay should be considered compensation for the performance of Senate

services requiring, via Rule 41(4)(c), that the payment be considered ‘‘compensation disbursed by the Secretary of

the Senate’’, and therefore be aggregated with regular Senate salary for the purposes of the $25,000 threshold

amount. The Committee concluded that if the law firm grants a paid leave of absence for work in a Senator’s

office, the pay would be deemed to be for services rendered to the Senate, and therefore, the sabbatical pay

should be aggregated with regular Senate salary for purposes of determining whether the $25,000 threshold amount

is met. If the amount is met, as it is apparent it would, then the partner would be required to terminate his

association with the firm. If, however, the payment is earned or accrued pay, incident to an established sabbatical

leave plan available to other members of the firm, the sabbatical payment without more, should not be regarded

as compensation for Senate services and therefore would not be aggregated with regular Senate pay for purposes

of meeting the $25,000 threshold amount and triggering the provisions of the Rule.

3. Would the individual be required to file a financial disclosure statement per the provisions of Rule 34?

Under Rule 34 (Title I of the Ethics in Government Act), Senate employees who are compensated at a rate equal

to or in excess of basic pay in effect for GS–16 are required to file a financial disclosure report. The issue to be

resolved here is identical to the one addressed under question 2. Consistent with the preceding discussion, the

Committee concluded that if the sabbatical pay accrues incident to an established leave plan participated in by

other members of the firm, sabbatical pay need not be aggregated with regular Senate salary to determine if the

total compensation for Senate services meets or exceeds the threshold amount, thereby triggering Rule 37(5) and

possibly, the reporting requirement.

4. Would the post-employment lobbying prohibition of Rule 37(9) restrict the lobbying activities of the law firm?

Rule 37(9) provides, in pertinent part, that: ‘‘If an employee on the staff of a Member, upon leaving that

position, becomes a registered lobbyist under the Federal Regulation of Lobbying Act of 1946 or any successor

statute, or is employed or retained by such a registered lobbyist for the purpose of influencing legislation, such

employee may not lobby the Member for whom he worked or that Member’s staff for a period of one year after

leaving that position.’’

The Committee held that while the above provision would prevent the partner on sabbatical leave from lobbying

for a period of one year after termination of Senate services, it would not restrict the lobbying activities* of any

other members, associates, or employees of the law firm.

———

*A prior interpretation of the lobbying prohibition in the Code can be found in Interpretative Ruling No.218.

INTERPRETATIVE RULING NO. 278

Date Issued: July 23, 1979

Applicable Area: Franking

QUESTION CONSIDERED:

Is it permissible under the franking statute, 39 U.S.C. 3210 et seq., for a Senator to use, in a franked mailing,

the designations ‘‘D’’ or ‘‘R’’ representing Democrat or Republican, after the name of a United States Senator? In

addition, is it permissible in a franked mailing to state that a legislative proposal was defeated ‘‘in a straight

party-line vote?’’

RULING:

While the Committee believes that the designations ‘‘R’’ and ‘‘D’’, when used for purposes of party identification,

and the phrase ‘‘in a straight party-line vote’’ may be used in a franked mailing, Section 3210(a)(5)(C) of Title

39 of the United States Code, prohibits the use of the frank for mail matter which specifically solicits political

support for the sender or for any political party. The Regulations Governing the Use of the Mailing Frank, dated

June 26, 1979, interprets this provision to preclude the inclusion of ‘‘material of a partisan nature’’ in newsletters

or news releases mailed under the frank (Chapter Two, paragraph 4 of the revised Regulations). In this regard, the

Committee noted that while the contemplated use of the phrase ‘‘in a straight party-line vote’’ is permissible, it

might be prohibited as ‘‘material of a partisan nature’’ in different circumstances.

INTERPRETATIVE RULING NO. 280

APPENDIX A 247

Date Issued: September 10, 1979

Applicable Rule: 40, Franking and Area

QUESTION CONSIDERED:

May a Senator purchase a mailing list with funds from his or her official ‘‘ten percent’’ allowance? The purchase

would be for full market value from a private group. After using the mailing list for official mass mailings, the

Senator intends to inform the private group of any address changes or deletions from the list which become

apparent as a result of returned mail. The Committee also understands that the private group might then offer the

mailing list to the Senator’s campaign committee as an ‘‘in-kind’’ contribution which would be reported as such.

RULING:

The Senate Rules Committee, by letter of December 31, 1977, adopted an opinion by the Comptroller General of

the U.S. that the role of the Rules Committee in approving vouchers for expenditures from the ten percent

category is to ensure only that the vouchers are regular in form, have been certified by the Senator as being for

official expenses not otherwise provided for in 2 U.S.C. 58(a), and are not for meals or entertainment. However,

by letter of June 22, 1978, in resolving the question of whether non-Senate employee transportation expenses

could be reimbursed from the ten percent allowance, the Rules Committee distinguished specific restrictive

statutory provisions from the general application of the Comptroller General’s advisory opinion.

The Rules Committee is the proper authority to be consulted concerning the propriety of use of the ten percent

allowance in the absence of a Code of Conduct question. However, when specifically requested to rule on the

permissibility of expenditures from the ten percent category with regard to the Senate’s Code of Conduct, the

Ethics Committee has undertaken to do so. In Interpretative Ruling No. 134, dated May 18, 1978, the Ethics

Committee held that the ten percent discretionary fund could be used to purchase a mailing list of registered

voters from a State election board when the list is uncoded as to political affiliation. The Ruling also noted that

Senate Rule 40(5) imposed no restriction on the source of a mailing list which is to be processed by the Senate

computer facilities.

The Committee’s Interpretative Ruling No. 135, dated May 22, 1978, held that ‘‘a Senator may not use the

mailing list of a private organization in a franked mailing and subsequently communicate information to that

organization to enable it to update its mailing list.’’ Reference was made to the franking statute, 39 U.S.C. 3215,

wherein it is said a person entitled to use of the frank may not permit its use ‘‘for the benefit or use of any

committee, organization or association.’’

Although in this specific situation the full market value would be paid initially for the list, the value of the list,

as corrected, would be enhanced as a result of the use of Federal funds (the cost of the frank) and this value

would be donated to a private entity, whether the private group or the Senator’s campaign committee. This

proposed arrangement would be improper as a misuse of the frank and a misuse of Federal funds for political

purposes. The authorization of the purchase of the list from the ten percent fund, absent the arrangement intended

thereafter with the private group and the Senator’s campaign committee, would be a matter for decision by the

Rules Committee.

[Note: Appropriations for Members now come from one fund, with a designated amount (currently $50,000) per

year for mass mailings.]

INTERPRETATIVE RULING NO. 286

Date Issued: October 2, 1979

Applicable Rule: 37

QUESTION CONSIDERED:

May a committee legislative counsel accept a position on the editorial board of a state university publication

which receives funds from an agency over which that committee has jurisdiction? The Senate employee would

receive no compensation, except for reimbursement of travel and related expenses in connection with attendance at

board meetings.

RULING:

Rule 37(3), of the Senate Code of Official Conduct, Conflict of Interest, notes that it is the supervisor of a

Senate employee who has the initial and continuing responsibility for determining whether a proposed situation

creates a conflict of interest. Paragraph 2 of Rule 37 states that no Member or employee of the Senate shall

engage in any outside business or professional activity for compensation which is inconsistent or in conflict with

the conscientious performance of official duties. The legislative history of this provision states that it ‘‘should be

read to prohibit any outside activities which could represent a conflict of interest or the appearance of a conflict

of interest.’’ S. Rept. 49, 95th Cong., lst Sess., page 41 (1977).

248 SENATE ETHICS MANUAL

In addition, prior to the commencement of any outside business or professional activity, an employee is required

to report in writing the nature of such activity to his or her supervising Senator, who is then required to ‘‘take

such action as he considers necessary for the avoidance of conflict of interest or interference with duties to the

Senate.’’ Rule 37, paragraph 3. While the requirement for written notice to the employee’s supervisor strictly

speaking applies only to outside activities for which compensation is received, the Committee believes it is

desirable that Senators be informed of all proposed outside business activities and positions contemplated by their

staff.

The Committee, while recognizing the difficulty of substituting its judgment for that of the supervising Senator,

believes that if the position were accepted on the editorial board an appearance of a conflict of interest might

result due to the jurisdiction of the particular committee over legislation and appropriations affecting the publisher.

INTERPRETATIVE RULING NO. 288

Date Issued: October 16, 1979

Applicable Rules: 37, 41

QUESTION CONSIDERED:

May a member of a Senator’s staff take two days of ‘‘personal leave’’ from the Senate in order to consult with a

state political party in the development of on-going programs for the state political party? The consulting work

will not pertain to any official business or any past, present or future work assignment in the office, nor will the

work be carried out on the Senator’s behalf, on behalf of any other elected official, or any candidate for public

office. The consulting will not exceed two days in duration and payment will not exceed $200 plus expenses.

RULING:

Paragraph 3 of Rule 37 on Conflict of Interest provides, with respect to outside employment for compensation,

that the supervisor, upon learning of the proposed outside activities, is to take such action as may be necessary to

avoid any apparent or actual conflict of interest with Senate duties. In addition, Senate Report 95–241 of the

Committee on Rules and Administration states that it is not a violation of law or any Senate rule for a member

of a Senator’s staff to work full-time in a political campaign while on annual leave.

Senate Rule 41 prohibits Senate employees generally from receiving, soliciting, being the custodian of, or

distributing funds in connection with any campaign for nomination or election to the Senate for any other Federal

office, unless such an individual has been designated by the Senator, pursuant to that Rule, to engage in political

fund activity on behalf of the Senator. The Select Committee has previously ruled that the Rule 41 prohibition of

political fund activity by other than designated staff applies to duty hours, off-duty hours and vacation leave.

The Committee concluded that on the basis of the facts given, this employment is not prohibited by the Code of

Official Conduct.

INTERPRETATIVE RULING NO. 291

Date Issued: November 26, 1979

Applicable Rule: 41

QUESTION CONSIDERED:

May a person on a Senator’s staff act as the chief executive officer of a State political committee of a national

political party? The individual would not receive compensation and would perform his or her responsibilities

during off-duty hours.

While the State political committee’s principal purpose is not the raising of campaign funds, the committee is

ultimately responsible under the by-laws for all the affairs of the party in the State, including the support of

Federal candidates, and does raise funds to support its own activities.

RULING:

No provision in the Senate Code of Official Conduct completely bars Senate employees from engaging in general

campaign activities but Rule 41 strictly limits political fund activity. The Rule prohibits an officer or employee of

the Senate from receiving, soliciting, being the custodian of, or distributing funds in connection with any campaign

for the nomination or election of any individual for any Federal office. The Rule provides an exception, however,

which allows each Senator to designate as many as two employees who may, with the permission of the

employing Senator, receive, solicit, be a custodian of, or distribute funds in connection with any campaign for

nomination for election, or election, of any individual to any Federal office.

APPENDIX A 249

While the principal purpose of the State party committee is not raising campaign funds for Federal candidates, the

Committee concluded an individual acting as chief executive officer of a State party committee would necessarily

be responsible, as part of the party committee’s normal course of business, for the acceptance, solicitation,

retention, or expenditures of funds in connection with campaigns for Federal office. As a result, only an individual

who is properly designated under Rule 41 should undertake the proposed political activity.

[Note: In those cases which do not involve raising funds for a state or local party committee of a national

political party, see IR 387 which lists the limited campaign committees with respect to which a Rule 41 designee

may raise funds. Also see the discussion in Chapter 6 relating to Political Fund Activity.]

INTERPRETATIVE RULING NO. 292

Date Issued: November 27, 1979

Applicable Rules: 34, 41

QUESTION CONSIDERED:

May the requirement to file a Public Financial Disclosure Statement be waived for a political fund designee whose

appointment period will cover a period of only six weeks?

RULING:

Rule 41, paragraph one, states, in relevant part, that an assistant may be designated to handle political funds only

‘‘if such assistant files a financial disclosure statement in the form provided under Rule 34 for each year during

which he is designated under this rule.’’ There is no period of time which one must be so designated before the

obligation to file a disclosure statement, pursuant to Rule 41, arises. Further, the Committee has no authority to

waive the disclosure requirement.

INTERPRETATIVE RULING NO. 296

Date Issued: December 18, 1979

Applicable Area: Franking

QUESTION CONSIDERED:

May the frank be used by a Senator to send letters of congratulations to soldiers from his or her home State who

enlist or re-enlist in the U.S. Army. The Army would provide the names and addresses of soldiers and the

Senator’s staff would prepare the letters and would use official stationery and franked envelopes for the mailings.

RULING:

Section 3210(1)(3)(F) of Title 2 of the United States Code authorizes franking of ‘‘mail matter expressing . . .

congratulations to a person who has achieved some . . . public distinction.’’

The Committee has concluded that enlisting or re-enlisting in the Armed Forces of the United States is an act

which constitutes a ‘‘public distinction’’ contemplated by the authorization for franked mail matter in section

3210(a)(3)(F) of Title 2. The Committee, therefore concludes that letters expressing congratulations to individuals

who enlist or re-enlist in the Armed Forces are frankable.

INTERPRETATIVE RULING NO. 297

Date Issued: December 18, 1979

Applicable Rule: 37

QUESTION CONSIDERED:

May a member of a Senator’s personal staff serve as an officer or board member of a 50l(c)(4) educational

foundation, and in addition, be paid a fee by the foundation for consultant services? No work for the foundation

would be performed by the employee during working hours of the Senate. Expertise involved in consulting would

be unrelated to the employee’s professional responsibilities to the Senate, and any consulting time devoted to the

foundation would not conflict with the performance of Senate duties.

250 SENATE ETHICS MANUAL

RULING:

Rule 37(6) prohibits service by a Senator or employee as an officer or member of the board of a publicly held or

regulated organization, excluding, however, organizations exempt from taxation under 501(c) of the Internal

Revenue Code of 1954 if the service is performed without compensation. A prior ruling of the Committee held

that service of this nature for a 50l(c) organization is permissible unless it conflicts or interferes with the

conscientious performance of Senate duties.

The 50l(c) exclusion in Rule 37(6) extends to employees on the personal staff of a Senator as well as those on a

Committee staff. Inasmuch as the exclusion applies only if one receives no compensation for service as an officer

or director of a 50l(c) organization, a determination of whether it would be permissible for an uncompensated

officer or director to serve at the same time as a paid consultant for the same 50l(c) organization would turn on

whether the consulting duties are related to the responsibilities of the position of officer or director. Since neither

the rule nor its legislative history give any indication that service as a paid consultant for a 50l(c) organization is

impermissible, the Committee held that if the duties as a consultant are unrelated to the responsibilities of officer

or director, and if the consulting duties are not violative of paragraphs 1, 2, 3 and 6 of Rule 37, service as a

paid consultant while also serving as an officer or director would not be prohibited. If the consulting duties are

not clearly distinguishable from the responsibilities of the position of officer or director, approval of dual service

in two such capacities could encourage by indirection the accomplishment of that which is directly prohibited.

The Committee recognizes that where consulting duties have an uncertain relationship to responsibilities as an

officer or director, it would be more difficult to determine whether the arrangement violates the spirit of the Rule

37 paragraph 6(a) exclusion in the case of an officer charged with day to day responsibility for conducting the

business of the organization than in the case of a director whose responsibilities are necessarily confined to policy

matters.

Under paragraph 3 of Rule 37, it is the continuing responsibility of an employee’s supervisor to monitor situations

such as this to avoid any conflict of interest or interference with Senate duties. The Committee noted that it could

not monitor the manifold aspects of the relationships which might arise in the future in a consulting role, and

could only offer guidance.

INTERPRETATIVE RULING NO. 301

Date Issued: February 21, 1980

Applicable Rule and Area: 41, Federal Election Campaign Act Amendments of 1979

QUESTION CONSIDERED:

May a Senate employee who is not designated under Senate Rule 41, contribute money to incumbent and nonincumbent presidential and congressional candidates, to National, State, and local political party committees, or to

State and local candidates or their campaign committees? In addition, which of the above actions would not be

permissible for the political fund designee under Rule 41?

RULING:

These questions involve application of a Federal statute, amended by the Federal Election Campaign Act

Amendments of 1979, which prohibits the making of certain political contributions by Federal employees. The

amended provision, now found in Section 603 of Title 18 of the United States Code, reads as follows:

‘‘Section 603. Making Political Contributions.

(a) It shall be unlawful for an officer or employee of the United States or any department or agency thereof, or a

person receiving any salary or compensation for services from money derived from the Treasury of the United

States, to make any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of

1971 to any other such officer, in, or Delegate or Resident Commissioner to, the Congress if the person receiving

such contribution is the employer or employing authority of the person making the contribution. Any person who

violates this section shall be fined not more than $5,000 or imprisoned not more than three years, or both.

(B) For purposes of this section, a contribution to an authorized committee as defined in section 302(e)(1) of the

Federal Election Campaign Act of 1971 shall be considered a contribution to the individual who has authorized

such committee.

The interpretation of the new provision, and the enforcement of its prohibition, are within the jurisdiction of the

United States Department of Justice. The Committee noted, however, that during Senate consideration of H.R.

5010, a bill to amend the Federal Election Campaign Act of 1971 (which became Pub. L. 96–187), Senator

Hatfield, a member of the Senate Rules Committee, referred to the proposed changes in the criminal code, stating:

‘‘Current provisions of the Criminal Code reflect a longstanding concern that no Federal employee be subject to

any form of ‘political assessment’. Consistent with this underlying concern, the revised language permits a Federal

employee to make a voluntary contribution to another Federal employee who is not his or her employer or

employing authority.’’ 125 Cong. Rec. S19099 (December 18, 1979).*

APPENDIX A 251

The Senate has previously recognized that questions might be raised under existing statutory prohibitions in the

Federal criminal code on the solicitation, receipt, and making of political contributions (formerly found in 18

U.S.C. sections 602, 603, and 607). When the Senate adopted its Code of Official Conduct for Members and

employees of the Senate on April 1, 1977, it instructed the Senate Rules and Administration Committee to ‘‘study

laws relating to contributions solicited from or made by officers or employees of the Senate and report the results

of their review, together with their recommendations, to the Senate within one hundred and eighty days . . .’’

Section 307, S. Res. 110, 95th Cong., lst Sess. (1977). Pursuant to this mandate, the Rules Committee issued a

report on October 17, 1977 (S. Rept. No. 95–500, 95th Cong., lst Sess), which contained the first phase of their

study, a compilation of existing laws relating to this issue.

In addition to the statutory provision discussed above, Rule 41 of the Senate Code of Official Conduct contains

restrictions on one aspect of campaign activity - the handling of campaign funds by Senate staff. The Rule states

that no employee of the Senate may receive, solicit, be the custodian of, or distribute any funds in connection

with any campaign for Federal office, unless the employee is one of two individuals specifically designated by his

or her Senator to engage in limited political fund activity on the Senator’s behalf.**

———

*The Committee also noted that the prohibition in the criminal code on receipt of contributions in a Federal

building (formerly l8 USC section 603) was also amended by the Federal Election Campaign Act Amendments of

1979 to allow unsolicited contributions to be received in a Federal building, provided they are not directed to be

sent there, and further provided that they are transferred to a political committee within 7 days of receipt. l8

U.S.C. section 607, as amended.

**See, Interpretative Rulings Nos. 3, 5, 22, 49, 153, 182.

INTERPRETATIVE RULING NO. 302

Date Issued: February 21, 1980

Applicable Rule: 41

QUESTION CONSIDERED:

May an employee on the personal staff of a Senator, with the approval and monitoring of the Senator, engage in

substantial political activity for a limited period of time on behalf of a presidential candidate? The staff member

will devote at least fifteen percent of his time to his Senate duties; however, he will receive a proportional salary

reduction and will not engage in political activity from other than the Senator’s Washington or state office.

RULING:

It is a Member’s prerogative in staffing his or her office to prescribe an employee’s duties and hours, and to

consent to certain outside activities.

Other than the restrictions on political fund activity in Senate Rule 41, no rule expressly prohibits political activity

by staff during off-duty hours or during established and reasonable annual leave time. However, if an employee

intends to spend a substantial amount of time on campaign activities, the Committee has ruled that a Senator

should use his or her best judgment in determining whether to remove the staff member from the Senate payroll

or reduce his or her Senate salary commensurately.*

With respect to the proportional salary reduction, the Committee concluded that the proposal is reasonable. In

addition, the Committee noted that the employing Member will monitor operation of the plan to ensure that it is

carried out as represented. Finally, the Committee noted that the staff member will continue to be subject to the

Senate Code of Official Conduct during this period of outside employment for compensation.

———

*See, Interpretative Ruling No. 59.

INTERPRETATIVE RULING NO. 304

Date Issued: February 21, 1980

Applicable Rule: 37*

QUESTION CONSIDERED:

May an attorney employed by a Senate Committee at a salary rate in excess of $25,000 argue a cause before the

appellate court while on leave from the Committee? The attorney tried the case, which is a suit for money

damages, before the United States District Court prior to his employment with the Senate. Any subsequent work

has been performed in his spare time.

252 SENATE ETHICS MANUAL

RULING:

Rule 37 of the Senate Code of Official Conduct places the initial responsibility upon a Senate employee and his

or her supervising Senator to determine whether any proposed outside business or professional activity would

create a conflict of interest, or the appearance thereof. See Rule 37, paragraph 2. Under paragraph 3 of Rule 37,

an employee must, before commencing any outside business or professional activity for compensation, report in

writing the nature of such activity to his supervisor who is then required to ‘‘take such action as he considers

necessary for the avoidance of conflict of interest or interference with duties to the Senate.’’ The employee must

continue to file such reports on May 15th of each year thereafter so long as the outside employment continues.

In addition, paragraph 5 of Rule 37 prohibits a Senate employee who is compensated at a rate in excess of

$25,000 per year and employed for more than 90 days in a calendar year from (a) affiliating with a firm or

partnership, (b) permitting his name to be used by such firm or partnership, or (c) practicing a profession ‘‘to any

extent during regular office hours of the Senate office in which employed.’’ This Committee has previously ruled

that this last provision restricts, but also contemplates, some limited practice of a profession outside office hours

or on annual leave time, as a sole practitioner.

Thus, it would appear that the proposed handling of the matter, if approved by the supervisor, would be

permissible.

———

*See Interpretative Rulings No. 70 and No. 233.

INTERPRETATIVE RULING NO. 306

Date Issued: March 3, 1980

Applicable Area: Franking

QUESTION CONSIDERED:

May a Senator’s office use the frank to respond to a constituent’s request for information concerning campaigns

for the presidential nominations? The proposed response would inform the constituent that the request has been

forwarded to the appropriate campaign committee for a reply.

RULING:

While it is the prerogative of a Senator to respond or not to respond to the inquiries of his or her constituents,

the franked mail statute, 39 U.S.C. 3210(a)(5)(c) prohibits the use of the frank for ‘‘mail matter which specifically

solicits political support for the sender or any other person or any political party, or a vote or financial assistance

for any candidate for any public office.’’ The committee ruled that it did not believe that the proposed response

would be prohibited by this section of the statute because there is no solicitation of political support and because

the proposed letter merely informs the constituent that the request has been forwarded for a reply from a

particular campaign committee.

INTERPRETATIVE RULING NO. 308

Date Issued: March 3, 1980

Applicable Rule: 37

QUESTION CONSIDERED:

May a Senator’s Field Representative serve on the boards of two non-profit organizations? The Senator is a

member of two Committees which have oversight of Federal agencies providing funds to these organizations. The

staffer will not participate in deliberations during board meetings regarding these funds and has no financial

interest in their disposition, but the organizations’ applications for such funds are handled through the Senator’s

office, which he supervises.

RULING:

Rule 37 of the Senate Code of Official Conduct, Conflict of Interest, places upon Senate employees and their

supervising Senators the initial, and continuing, responsibility for avoiding situations which create conflicts of

interest, or the appearance of such conflicts. Paragraph 2 of Rule 37 states that no Member or employee of the

Senate shall engage in any outside business or professional activity for compensation which is inconsistent or in

conflict with the conscientious performance of official duties. The legislative history of this provision states that it

‘‘should be read to prohibit any outside activities which could represent a conflict of interest or the appearance of

a conflict of interest.*

APPENDIX A 253

In addition, prior to the commencement of any outside business or professional activity, an employee is required

to report in writing the nature of such activity to his or her supervising Senator, who is then required to ‘‘take

such action as he considers necessary for the avoidance of conflict of interest or interference with duties to the

Senate.’’ Rule 37, paragraph 3. While the requirement for written notice to the employee’s supervisor literally

applies only to outside activities for which compensation is received, the Committee believes it is desirable that

Senators be informed of all proposed outside activities and positions contemplated by their staff.

In this specific case, since the organizations’ applications for federal funds from agencies subject to oversight

jurisdiction by two Senate committees on which the Senator serves are handled through the office which the Field

Representative supervises, the Committee concluded there may be an appearance of a conflict of interest between

the Field Representative’s official responsibilities and his fiduciary duties to the boards of the two organizations.

Further, if the Field Representative were involved directly or indirectly in assisting or handling any application for

funds, an actual conflict of interest might be presented.

The Committee has recognized, in prior rulings involving a conflict of interest question, the difficulty of

substituting its judgment for that of the supervising Senator. The Committee can call attention to relevant

considerations, but absent facts which would indicate an actual conflict, the Committee concluded that the

supervising Senator must be the primary monitor of the propriety of outside activities of his staff.

———

*S. Rept. 49, 95th Cong., lst Sess. 41 (1977).

INTERPRETATIVE RULING NO. 311

Date Issued: March 17, 1980

Applicable Rule and Area: 34, Ethics in Government Act of 1978

QUESTION CONSIDERED:

What are the public disclosure obligations of a reporting individual concerning an estate of which his spouse is a

beneficiary? The executor has informed the spouse that a substantial and unspecified amount of the estate’s noncash assets will have to be sold prior to distribution of the estate in order to pay specific bequests, taxes, and

other expenses, and that the executor expects that the estate will remain under administration for some months

before distribution.

RULING:

The Committee concluded that a reporting individual is not obligated under Title I of the Ethics in Government

Act of 1978 (2 U.S.C. 70l et seq.) to itemize and value property held by an estate or its liabilities, or

transactions by the administrator, and prior to a distribution of estate assets. The Committee held, however, that

where a reporting individual is aware that he or she, or a spouse or dependent child, is the beneficiary of an

estate from which reportable property may be received in the future, a very brief and general statement of interest

should be provided. From the facts provided, a notation such as the following would be sufficient on the

disclosure report: ‘‘Residuary legatee of the estate of (name); deceased (month and year); in period of

administration; details of assets to be disclosed upon distribution (or when available, if there is a residuary trust).’’

The Committee notes, however, that if reportable property is distributed or if a residuary trust is created, the

holding of such property would have to be disclosed in the public financial disclosure report for the year in

which the trust is created.

INTERPRETATIVE RULING NO. 312

Date Issued: March 20, 1980

Applicable Rule: 37

QUESTION CONSIDERED:

May a staff member accept an uncompensated position on a State Commission? His supervising Senator is a

Member of a Subcommittee whose jurisdiction includes providing funding for an Agency related to the work of

the particular Commission. The staff member, however, has no duties or responsibilities with respect to the

Subcommittee and he will not discuss or vote on any Commission proposal which might involve action by the

Senate Subcommittee.

RULING:

The Committee noted that questions may arise whenever an employee of the Senate is invited to accept an

appointment to a State Commission or is approached to serve on the board of directors of a private group and

254 SENATE ETHICS MANUAL

the Commission or the private group receives some or all of its funding from the Federal government. While

there is no specific prohibition in Senate rules which would preclude the acceptance of such an appointment,

paragraph 3 of Rule 37, Conflict of Interest, does direct that a Senate employee notify his or her supervisor at

such time as he or she engages in an outside professional activity, on each May 15 thereafter and that upon

notification it becomes the responsibility of the supervisor to make the initial judgment that an outside activity

presents no actual or apparent conflict of interest either with respect to the time required to engage in the activity

or due to the nature of the activity itself. In addition, the supervisor has an ongoing responsibility to monitor the

outside activity and to take such action as he may consider necessary to avoid an actual or apparent conflict in

the future. Based upon the facts presented, the Committee held that the proposed activity did not present an actual

conflict of interest.

INTERPRETATIVE RULING NO. 313

Date Issued: March 20, 1980

Applicable Rule: 40

QUESTION CONSIDERED:

Is Rule 40, paragraph 1, which provides a 60-day moratorium upon the use of the frank for any mass mailings

prior to any primary or general election (whether regular, special or runoff), triggered by a Senator’s participation

in presidential primaries in States other than the Senator’s home State?

RULING:

The Committee held that Rule 40 was intended to be applicable to primary and general elections for the Senate

in a Member’s home State, as well as to a presidential primary or general election, in a Senator’s home State

where the Senator is a candidate in such a presidential primary or general election, but that the moratorium upon

mass mailings to home State constituents is not triggered by participation in a presidential primary or the

equivalent in another State. However, the Committee noted that the 60-day moratorium would also apply to any

‘‘mass mailing’’ mailed under a Senator’s franking privilege to a State in which the Senator participated in a

presidential primary or general election.

INTERPRETATIVE RULING NO. 318

Date Issued: May 9, 1980

Applicable Rule: 40

QUESTION CONSIDERED:

May a Senator provide a national political committee with a copy of his mailing list of senior citizens in order

for the committee to add the names and addresses to a list of individuals to whom the committee already sends a

newsletter?

RULING:

Senate Rule 40 states, at paragraph 5(c) that ‘‘the Senate computer facilities shall not be used . . . to produce

mailing labels for mass mailings, or computer tapes and discs, for use other than in service facilities maintained,

and operated by the Senator or under contract to the Senate . . .’’ The Report of the Special Committee on

Official Conduct, Senate Report 95–49, in explaining Rule 40.5(c) states that ‘‘under this paragraph, mailing labels

and computer tapes cannot be produced by the Senate facilities for use in any other facility, such as for campaign

mailings.’’ The author of this provision stated on March 23, 1977, at S4755 of the Congressional Record, it was

his intention that the provision ‘‘. . . just restates that in no case are Members of the Senate or Senate

Committees authorized to use Senate computer facilities for political or personal purposes.’’

The Committee concluded that the furnishing by a Member of a list of names and addresses, currently stored in

the Senate computer facility, to a political committee for use by them in a mailing would be prohibited by

paragraph 5(c) of Senate Rule 40, since the labels or tapes to be furnished would be used by the political

committee at a facility which is not maintained or operated by the Senate.

INTERPRETATIVE RULING NO. 321

APPENDIX A 255

Date Issued: May 13, 1980

Applicable Rule: 37

QUESTION CONSIDERED:

May a subcommittee special counsel, who intends to be a full-time Senate employee for six months but who may

then rejoin the law firm where he has been a partner, retain during his Senate employment a limited relationship

with the law firm?

For the period of his Senate employment, the counsel plans not to be affiliated with the law firm for the purpose

of providing professional services for compensation, and the firm will not use his name. The counsel will

withdraw from litigation in which he was involved at the firm, will have no interest in fees for services rendered

by the firm during the period in which he is not affiliated with it, and the firm will remove his name from its

letterhead. The counsel has the option to resume affiliation with the firm after termination of his employment with

the Senate, and during his Senate employment will retain, at his expense, pre-existing group insurance and his

interest in the firm’s pension plan.

RULING:

Paragraph 5 of Senate Rule 37 provides that: ‘‘No Member, officer, or employee of the Senate compensated at a

rate in excess of $25,000 per annum and employed for more than ninety days in a calendar year shall (a) affiliate

with a firm, partnership, association, or corporation for the purpose of providing professional services for

compensation; (b) permit that individual’s name to be used by such a firm, partnership, association or corporation;

or (c) practice a profession for compensation to any extent during regular office hours of the Senate office in

which employed. For the purposes of this paragraph, ‘‘professional services’’ shall include but not be limited to

those which involve a fiduciary relationship.’’

Based upon the facts presented, it appeared that Special Counsel and the law firm took all reasonable steps to

comply with paragraph 5 of Rule 37. Accordingly, the Committee held that retention of the firm’s group insurance

benefits and pension benefits, at his expense, did not constitute a prohibited affiliation within the meaning of

paragraph 5(a) of Rule 37.

The Committee reminded the supervising Senator that paragraph 3 of Rule 37 prohibits a Senate employee from

engaging in any outside business or professional activity or employment for compensation unless he had described

such activity in writing to his supervisor and the Rule places a continuing responsibility on the supervisor to take

such action as is necessary for the avoidance of conflict of interest. Thus, the Senator should review any change

in the Counsel’s relationship with the firm during the time that he is employed by the subcommittee.

The Committee noted that Senate Rule 34 (Title I of the Ethics in Government Act of 1978), as amended,

requires that any individual who becomes an officer or employee of the Senate on or after January 1 of the

calendar year and performs the duties of his position or office for a period in excess of sixty days in that

calendar year and who is compensated at a rate equal to or in excess of the annual rate of basic pay in effect

for GS–16 of the General Schedule, must file a Public Financial Disclosure Report within thirty days of becoming

such an employee. The Select Committee has previously interpreted this provision to apply to employees who

have committed themselves to work or who reasonably believe that they will be working for more than sixty days

in the calendar year.

INTERPRETATIVE RULING NO. 325

Date Issued: June 27, 1980

Applicable Area: Franking

QUESTION CONSIDERED:

May a Member of the Senate frank a letter of congratulations to recently naturalized citizens in his home State,

and enclose with that letter an enclosure which provides information as to the Member’s State offices and who to

contact if a problem arises in a particular area of citizen concern?

RULING:

The franking statute at 39 U.S.C. 3210(a)(1) states:

It is the policy of the Congress that the privilege of sending mail as franked mail shall be established under this

section in order to assist and expedite the conduct of official business, activities, and duties of the Congress of

the United States.

The intent of the Congress in furnishing the franking privilege to Members is provided at 39 U.S.C. 3210(a)(2)

which states:

256 SENATE ETHICS MANUAL

It is the intent of the Congress that such official business, activities, and duties cover all matters which directly or

indirectly pertain to the legislative process or to any congressional representative functions generally, or to the

functioning, working, or operating of the Congress and the performance of official duties in connection therewith,

and shall include, but not be limited to, the information of other authority of government, as a guide or a means

of assistance in the performance of those functions.*’’

Of particular note is 39 U.S.C. 3210(a)(3)(F) which specifically sets forth a statutory authorization for the franking

of ‘‘mail matter expressing . . . congratulations to a person who has achieved some public distinction.’’*

The Committee held that becoming a citizen of the United States is a ‘‘public distinction’’ within the meaning of

the statute, and that letters expressing congratulations for achieving citizenship are frankable as such. Further, the

Committee concluded that the enclosure of information regarding services available at the Member’s State offices

was frankable as it conveyed information to the public as a means of assistance in the performance of the

legislative and representative functions consistent with the Congressional ‘‘intent’’ provision of the franking statute.

———

*On October 26, 1981 Section 32l0(a)(3)(F) was amended to delete the authority to send under the frank letters of

congratulations to a person who had achieved a ‘‘personal distinction.’’

INTERPRETATIVE RULING NO. 326

Date Issued: July 1, 1980

Applicable Rule: 41**

QUESTION CONSIDERED:

May an employee on the personal staff of a Senator, in his home state office, also serve during off-duty hours

and without compensation as the National Committee Chairwoman of a political party from that state?

RULING:

There is no provision of the Code of Official Conduct which prohibits such service by a member of the personal

staff of a Senator. As S. Rept. 95–241 (95th Cong.) indicated, except for prohibitions on Rule 41* with respect to

the handling of campaign funds, ‘‘it is neither illegal nor a violation of Senate Rules for a member of a Senator’s

staff to work full-time in a political campaigns while on annual leave or vacation time while on leave of absence

from his or her Senate duties . . .’’***

The prohibitions on political activity within the Code of Official Conduct are found in Rule 41. The legislative

history of Rule 41 makes it clear that the Code was not intended to proscribe or restrict legitimate, voluntary

political activity such as that in question.

In furtherance of legislative intent, this Committee has approved a Senate employee holding a position as a

political party’s precinct chairman as long as the state and local campaign activities were clearly separate and

distinct from any fund-raising activities performed in connection with a Federal election, and the activities did not

interfere with the employee’s Senate duties. Interpretative Ruling No. 204 (Dec. 5, 1978).

Hence an employee on the personal staff of a Senator could, during off-hours and without compensation, serve as

a political party’s National Committee Chairwoman from her state. Such an employee, however, unless one of the

Senator’s two political fund designees, could not ‘‘receive, solicit, be the custodian of, or distribute any campaign

funds,’’ Interpretative Ruling No. 5 (May 11, 1977), nor could said employee solicit others to solicit funds or

otherwise become involved to any substantial degree in political fund activity.

If the employee were a political fund designee, then she could handle political funds as set forth in Rule 41. The

prohibitions on political fund activity found in Rule 41 do not, however, apply to state or local campaigns.

Interpretative Ruling No. 153 (June 22, 1978); Interpretative Ruling No. 182 (September 29, 1978). If involvement

in any campaign activity becomes extensive, however, the supervising Member may find it wise to remove the

employee from the payroll for the period of extensive campaign involvement. See, for example, Interpretative

Ruling No. 3 (May 5, 1977); Interpretative Ruling No. 309 (February 21, 1980). This is important for the

supervising Senator to recognize, because the position of National Committeeman or Committeewoman for a

political party is an important position which could conceivably require a great deal of time on the part of the

Senate employee.

It should be clear from the foregoing that even if not a political fund designee, an employee would not be

prohibited from handling funds for a state party organization for the purpose of paying off campaign debts

incurred by a party’s candidates for state and local office. But those activities must be clearly divisible from any

of the organization’s activities performed in connection with any federal election. That is to say if the proposed

activities would involve the raising of a common fund to, for example, discharge the party’s political debts on

behalf of all its candidates, whether federal, state or local, the employee’s participation in the common fund

activities would be prohibited under Rule 41, even if the proceeds of the activities could be clearly apportioned

between federal candidates and state or local candidates. Interpretative Ruling No. 182 (September 29, 1978).

APPENDIX A 257

Because the language of Rule 41 prohibits an employee from receiving, soliciting, being the custodian of, or

distributing funds in connection with any federal election campaign, it would be necessary for the employee, as

National Committee Chairwoman, to abstain from voting on any issue before the party’s National Committee

which would involve fund-raising activities for federal elections, or for any common-fund activities which funds

would be used for, among others, federal elections, unless, of course, the employee is a political fund designee.

The same interpretation would apply to the Force, or other unit of the party’s National Committee, which would

be involved in fund-raising activities for federal election campaigns, or the disbursement or distribution of political

campaign funds in federal elections.

We distinguish the case of a party National Committee Chairman or Chairwoman, in this case, from that of the

Chief executive officer of a state political committee, in Interpretative Ruling No. 291. There we ruled that the

latter’s duties necessarily entailed, in the normal course of business, the acceptance, solicitation, retention or

expenditures of funds in connection with federal election campaigns, the effective discharge of which duties would

run afoul of the prohibitions of paragraph 1 of Rule 41. Such would not appear to be the case regarding the

duties of a party National Committee Chairman or Chairwoman.

Finally, the Committee notes that in addition to restrictions on campaign activity imposed by Senate rules, there

are also statutory prohibitions against certain types of political activity by Senate employees. See 18 U.S.C.

sections 602, 603 (solicitation of political contributions), 606 (intimidation to secure political contributions), and

607 (making political contributions).

In sum, an employee on the personal staff of a Senator, in his home state office, may serve as a political party’s

National Committee Chairwoman from that state, if done voluntarily during official hours, and without

compensation; if it does not interfere with the performance of her Senate staff duties; and if it does not entail the

handling of political campaign funds in federal elections, unless said employee is one of the Senator’s political

fund designees, in which case the employee may handle federal election campaign funds within the limits of Rule

41.

** S. Rept. 95–241 (95th Cong.) quoted in Interpretative Ruling No. 154, June 22, 1978; p.2. S. Rept. 95–241

accompanied S. Res. 188, which amended then Rule 44 (now Rule 41) relative to political fund activity by Senate

officers or employees.

INTERPRETATIVE RULING NO. 327

Date Issued: July 1, 1980

Applicable Rule: 34

QUESTION CONSIDERED:

For reporting purposes, how is a gift of a season pass to a theater or sporting event or a membership in a club

to be valued?

RULING:

Section 107(3) of the Ethics in Government Act of 1978 (2 U.S.C. 707(3), which has been adopted as Rule 34 of

the Standing Rules of the Senate (Public Financial Disclosure) defines gift as ‘‘a payment, advance, forbearance,

rendering, or deposit of money, or anything of value, unless consideration of equal or greater value is received by

the donor, but does not include:

(a) bequest and other forms of inheritance;

(b) suitable mementos of a function honoring the reporting individual;

(c) food, lodging, transportation, and entertainment provided by State and local governments, or political

subdivisions thereof, by a foreign government within a foreign country, or by the United States government within

a foreign country, or by the United States Government;

(d) food and beverages consumed at banquets, receptions, or similar events;

(e) consumable products provided by home State businesses to a Member s office for distribution; or

(f) communications to the offices of a reporting individual including subscriptions to newspapers and periodicals;

As to the value assigned for reporting purposes to the gift of a season’s pass to the theater or sporting events, or

a gift of membership in a club, the Committee believes that the value for reporting expenses is the cost paid by

the donor, regardless of the extent, if any, of the use of the pass or membership by the donee.

The Committee has also concluded that the value of a gift of a season pass is the value at the time of

acceptance.

INTERPRETATIVE RULING NO. 330

258 SENATE ETHICS MANUAL

Date Issued: August 26, 1980

Applicable Rule: 38, and the Federal Election

and Area Campaign Act

QUESTION CONSIDERED:

May a Member use excess campaign funds from his principal campaign committee to defray the cost of

entertaining his staff?

RULING:

The use of excess campaign funds is governed by the Federal Election Campaign Act and Senate Rules. The Act,

as amended by Pub. L. No. 96–187, provides at section 439(a) of Title 2, United States Code, that excess

campaign funds may be used by a holder of Federal office ‘‘to defray any ordinary and necessary expenses

incurred in connection with his or her duties as a holder of Federal office.’’ Senate Rule 38 allows a Member to

defray ‘‘expenses incurred by a Member in connection with his official duties’’ from either personal funds or,

‘‘funds derived from a political committee.’’

The Committee concluded that a Member’s use of excess campaign funds from his principal campaign committee

to defray the cost of entertaining his staff would not violate the requirement of Rule 38 that ‘‘expenses incurred

by a Member in connection with his official duties shall be defrayed only from . . . (c) funds derived from a

political committee . . .’’ In addition, the Committee further concluded that such a use of funds from a Member’s

principal campaign committee would not violate the prohibition in paragraph 2 of Rule 38 on the conversion of

contributions to the personal use of a Member.

The Committee noted that this interpretation of Rule 38 has no bearing on the question of what kinds of expenses

are ‘‘official expenses’’ as that term may be interpreted by the Committee on Rules and Administration or the

Senate Disbursing Office for the purpose of making reimbursements to Members from Government funds. In

addition, the Committee expresses no view on the tax consequences to a Member or to his principal campaign

committee on the use of campaign funds to defray the cost of entertainment of staff. Further information on these

issues can be found in a report of the Committee on Finance, ‘‘Tax Status of Funds Expended by a Political

Committee’’, S. Rept. 95–779 (1978), and in Revenue Ruling 78–373 on Deductibility of Expenses Paid by

Members of Congress.

INTERPRETATIVE RULING NO. 336

Date Issued: September 5, 1980

Applicable Rules: 34, 35, 37

QUESTION CONSIDERED:

What is the applicability of the Code of Official Conduct to the spouse of a Member, officer, or employee of the

Senate who has been offered a position on the board of directors of an American corporation?

RULING:

In this situation, the spouse is an attorney who has established an independent professional reputation over a

period of years which appears to qualify this individual for any number of possible offers to serve on a corporate

board of directors.

While paragraph 6 of Rule 37 prohibits a Member, officer, or employee of the Senate, who is compensated at a

rate in excess of $25,000 per year and is employed for more than ninety days in a calendar year, from serving as

an officer or director of any publicly held or publicly regulated corporation, financial institution or business entity,

this prohibition is not applicable to the spouse of a Member, officer, or employee. However, the Select Committee

recognized that while the activities of a member of a board of directors are generally confined to establishing

matters of corporate policy, rather than directing the course of day-to-day corporate business, should a spouse’s

duties as a director include ‘‘lobbying’’ other Members, officers, or employees of the Senate, a question could

arise about such activities which might reflect upon the Senate as an institution.

Additionally, the Committee pointed out that Rule 34, ‘‘Public Financial Disclosure’’, requires a reporting

individual to disclose the source of any director’s fees or other earned income in excess of $1,000 received by a

spouse and that the prohibitions of Rule 35, ‘‘Gifts’’, are applicable not only to Members, officers, and employees

but also to spouses and dependents as well.

[Note: The prohibitions of the current Gifts Rule apply only to Members, officers, and employees, but not to

spouses and dependents. However, a gift to a family member or any other individual based on that individual’s

relationship with the Member, officer, or employee, will be considered to be a gift to the Member, officer, or

employee if the gift is given with the knowledge and acquiescence of the Member, officer, or employee, and the

APPENDIX A 259

Member, officer, or employee has reason to believe the gift was given because of the official position of the

Member, officer, or employee.]

INTERPRETATIVE RULING NO. 338

Date Issued: September 23, 1980

Applicable Rule: 37

QUESTION CONSIDERED:

Is a Senate employee who works part-time in a Member’s office in violation of the prohibition in paragraph 5 of

Senate Rule 37 on affiliating with a ‘‘firm, partnership, association, or corporation for the purposes of providing

professional services for compensation’’ because of his continuing, full-time employment as a writer for an

organization which lobbies the Congress?

RULING:

In defining the scope of the prohibition, the paragraph states, ‘‘[f]or purposes of this paragraph, ‘‘professional

services’’ shall include, but not be limited to, those which involve a fiduciary relationship.’’ In the normal course

of business, the Committee does not believe that performing work as a writer constitutes the kind of ‘‘professional

services’’ contemplated by the definition provided in Rule 37, and believes that the individual’s work for the nonSenate organization is not prohibited by paragraph 5. The Committee reminded the employing Senator that

paragraph 3 of Rule 37 requires the supervising Senator of any Senate employee who engages in non-Senate

employment ‘‘to take such action as he considers necessary for the avoidance of conflict of interest or interference

with duties to the Senate.’’ The Committee further noted that because of the employment relationship which will

continue to exist between the part-time employee and that employee’s other employer, a business lobbying

organization, the supervising Senator will of course need to be especially vigilant and particularly sensitive to

guard against a conflict of interest arising.

INTERPRETATIVE RULING NO. 339

Date Issued: September 25, 1980

Applicable Rules: 35 and 37

QUESTION CONSIDERED:

May a Senate employee accompany her husband who is a lobbyist on business trips, the expenses of which are

paid for by the husband’s employer, a corporation which is a prohibited source within the meaning of paragraph

1(b) of Rule 35 on gifts?

FACTS:

While a part of the husband’s corporate duties includes lobbying other Senate committees, the Senate committee

which employs the wife has no jurisdiction over matters of interest to the corporate employer, and the Senate

employee’s duties are in no way related to the business interests of her husband’s employer.

Additionally, the husband’s corporate duties include travel for the purpose of attending certain corporate, business,

and trade meetings on behalf of his employer. It is the corporation’s practice both to encourage employee spouses

to attend selected meetings and to pay the expenses of those spouses who attend.

DISCUSSION:

While paragraph 1(a) of Rule 35 prohibits Members, officers, employees, their spouses and dependents from

accepting gifts (as defined by paragraph 2(a) of Rule 35) aggregating over $100 during a calendar year from a

prohibited source (as defined in paragraph 1(b) of Rule 35), unless a waiver is granted, the Committee found that

under the facts presented here, no gift was received by the Senate employee.

A search of the legislative history of Rule 35 contains no debate or conclusions on this particular situation. The

Committee concluded, however, that the provisions of the Rule, and its legislative history, suggest that, under

certain circumstances, the payment by a spouse’s employer of necessary travel expenses of wives or husbands

incurred by them while accompanying their spouses on trips relating to the spouse’s business duties is not a gift

within the meaning of Rule 35.

The Committee noted that Rule 35 contains an exception to the definition of a gift for the necessary expenses of

official travel. During debate on the ‘‘necessary expenses’’ provision of the Rule, it was stated that the necessary

expenses incurred by the spouse of a Senator in accompanying the Senator to an appearance before the sponsoring

260 SENATE ETHICS MANUAL

organization paid by the sponsoring organization was not to be considered a gift under the Gift Rule. While the

terms of the ‘‘necessary expenses’’ exception do not encompass travel for other than Senate related purposes, the

thrust of the legislative policy articulated in that exception militated against a determination that the payment of

necessary travel expenses in this case was a gift to the Senate employee-spouse.

Here the corporation defraying the expenses had a policy of encouraging the involvement of its employees’

spouses in corporate sponsored or related activities. Thus, the company would not consider the payment of the

Senate employee-spouse’s travel expenses a gift, but rather, an ordinary and necessary expense of conducting its

business. The company would have provided the same food, beverages, lodgings, entertainment and transportation

to their employee’s spouse whomever the spouse was—Senate employee or not—and there was no indication that

she was treated any differently than other spouses. Finally, it was stated that no effort was made in this case to

influence the employee in the present or future performance of her Senate duties.

The Committee therefore found that on these facts, the payment of such expenses should not be characterized as a

gift to an employee for Rule 35 purposes, hence the practice and conduct in question were not impermissible.

A second question presented is whether the activities of the employee may raise a conflict of interest issue. Rule

37 (Conflict of Interest,) paragraph 2 states: ‘‘No Member, officer, or employee shall engage in any outside

business or professional activity or employment for compensation which is inconsistent or in conflict with the

conscientious performance of official duties.’’

The Committee has read the prohibition against outside business or professional activity or employment for

compensation to include activities for which reimbursements for incurred expenses are received.

Pursuant to this Rule, Senate employees should be aware of the potential for the exertion of improper influence

by those with whom they come in contact because of their spouse’s employment. Additionally, in situations which

raise the question of whether a particular activity might give rise to a conflict of interest, the Committee invokes

paragraph 3 of Rule 37 which requires the employee to notify his or her supervisor of the proposed activity and

which places on the employee’s supervisor the initial responsibility to take appropriate steps to guard against the

arising of a conflict of interest.

RULING:

In the circumstances discussed, the payment of travel expenses is not prohibited by either the Rule on Gifts or

Conflicts of Interest.

INTERPRETATIVE RULING NO. 342

Date Issued: December 10, 1980

Applicable Rule: 37

QUESTION CONSIDERED:

May a Senator serve on the board of directors of a statewide community action agency which administers

programs funded by subcommittees and committees on which the Senator serves?

The community action agency, a non-profit corporation in the Senator’s home State, receives from 60 to 70

percent of its funds from the federal government, either directly or indirectly through the State. The Senator’s

position would be uncompensated and the Senator would be expected to attend board meetings in the State several

times a year.

RULING:

Paragraph 6 of Rule 37 on Conflicts of Interest prohibits service by a Senator or Senate employee as an officer

or member of the board of a publicly held or regulated organization, excluding, however, organizations exempt

from taxation under section 501(c) of the Internal Revenue Code of 1954 if the service is performed without

compensation. Since the community action agency is a 501(c) organization and the Senator would serve without

compensation, the Senator may serve on the board without violating paragraph 6. The Nelson Committee Report,

which accompanied Senate Resolution 110 (Senate Code of Official Conduct), makes it clear, however, that such

service is still ‘‘subject to the general admonitions of paragraphs 1 and 2 of the Rule and all Members . . .

should exercise great care in avoiding all conflicts of interest or the appearance of a conflict of interest.’’ S. Rept.

49, 95th Cong., lst Sess. 44 (1977).

Paragraph 2 of Rule 37 states that ‘‘no Member, officer, or employee shall engage in any outside business or

professional activity or employment for compensation which is inconsistent or in conflict with the conscientious

performance of official duties.’’ The Committee has previously found conflicts of interest where Senate employees

have taken uncompensated positions on boards, commissions, or advisory councils of organizations that receive or

seek federal funding from agencies with respect to a committee on which the supervising Senator sits has

appropriation or oversight functions, or otherwise involves matters with which the committee is concerned.’’*

APPENDIX A 261

The Committee stated that, based on the facts presented, the Senator’s acceptance of the invitation to serve on the

board of directors of the community action agency could lead to a conflict of interest because subcommittees and

committees on which the Senator serves have legislative and oversight functions relating to programs that are

administered by the agency and substantially funded by the federal government. The Committee therefore

recommended that the invitation not be accepted.

———

*See Interpretative Rulings Nos. 23, 227, 286, and 308.

INTERPRETATIVE RULING NO. 343

Date Issued: February 4, 1981

Applicable Area: Anti-Nepotism Statute

QUESTION CONSIDERED:

Does the term ‘‘relative’’ as used in the Federal Anti-Nepotism Statute, 5 U.S.C. 3110(a)(3) include the niece or

nephew of a spouse of a Senator?

RULING:

This question has been addressed by the American Law Division of the Library of Congress in a memorandum

dated April 28, 1978. In that memorandum, the American Law Division pointed out that the term ‘‘relative’’ is

specifically defined in the statute, that the definition does not include the nephew or niece of a public official’s

spouse and that nothing in the legislative history of the statute provides any indication that the Congress intended

the term ‘‘nephew’’, as used in the statute, to have any meaning other than that found in common legal usage,

i.e., that the term encompasses only the son of one’s brother or sister. In addition, the memorandum points out

that this interpretation is consistent with the position taken by the Office of Personnel Management, which, in the

Federal Personnel Manual, at Chapter 310, subchapter 1, section l–2(c), defines ‘‘nephew’’ as ‘‘the son of a

public official’s brother or sister.’’

The Select Committee agrees with this interpretation and has ruled that the son or daughter of a brother or sister

of a Senator’s spouse would not be a ‘‘nephew’’ or ‘‘niece’’ for purposes of the anti-nepotism statute.

INTERPRETATIVE RULING NO. 344

Date Issued: February 16, 1981

Applicable Rules: 34, 37

QUESTION CONSIDERED:

A newly-elected Senator who had withdrawn as a partner in a law firm prior to his swearing-in as a Member of

the Senate, but who, despite his best efforts, has been unable to wind up his practice before taking office, asked

whether, under Senate Rules, he could continue to serve as attorney for two clients involved in litigation begun

before his election, and whether, as a sole practitioner, he could continue to represent his brother and that

brother’s wholly-owned corporation.

RULING:

Paragraphs 2 and 5 of Rule 37 of the Code provide respectively:

‘‘No Member, officer, or employee shall engage in any outside business or professional activity or employment for

compensation which is inconsistent or in conflict with the conscientious performance of official duties.

No Member, officer, or employee . . . shall (a) affiliate with a firm, partnership, association, or corporation for

the purpose of providing professional services for compensation; (b) permit that individual’s name to be used by

such a firm, partnership, association or corporation; . . . For the purpose of this paragraph, professional services

shall include, but not be limited to, those which involve a fiduciary relationship.

The Senator was advised that while paragraphs 2 and 5 limit the performance of professional services by

Members, the Rule’s legislative history did not indicate that the Senate had contemplated the problems confronted

by a newly-elected Member in winding up his business affairs. The Committee noted that an attorney has rather

clearly defined obligations, as an officer of the court, to his clients and to his former firm, which limit the

exercise of his discretion to withdraw from a pending court case. With these facts in mind, the Committee

advised the Senator to conclude his responsibilities expeditiously and in conformity with the spirit and purpose of

paragraphs 2 and 5 of Rule 37.

262 SENATE ETHICS MANUAL

Since one of the cases in litigation involved an instrumentality of the federal government, and since the activities

of that entity could be affected by the actions of a committee to which the Senator was assigned, the Senator was

advised to consider whether this situation might lead to or give the appearance of a conflict of interest. With an

understanding that if a conflict of interest should appear the Senator would take appropriate action, the Committee

found that his continued participation would not necessarily raise any other question as to conflict of interest

under Rule 37.

With respect to the continuing representation of his brother, the Committee concluded that since this would

involve new matters arising after the commencement of Senate duties, paragraphs 2 and 5 of Rule 37 are

applicable but would not preclude the Senator’s providing legal services as a sole practitioner, provided the

matters of concern to his brother and his brother’s business did not raise questions of conflicts of interest with

the public trust of his office or the conscientious performance of the Senator’s official duties.

Finally, the Senator was reminded that Title I of the Ethics in Government Act of 1978 (Rule 34) requires

Members to disclose the source and amount of all income received during the preceding calendar year aggregating

$100 or more. Consequently, the Committee concluded that income earned from his law practice in 1980 may be

disclosed by identifying the Senator’s former law firm as the source along with the amount of income earned.

Additionally, 1981 income aggregating $100 or more, earned after joining the Senate, but derived from clients he

had represented prior to his joining the Senate and whom he continued to represent, may be disclosed by exact

amount stating that the source of income is ‘‘law practice’’. New clients who provided $100 or more in income

must be disclosed by exact amount and by name.

[NOTE: The income disclosure threshold is currently $200, rather than the $100 figure in the ruling. Also, under

other amendments to the Ethics in Government Act since the date of the ruling, an individual who must file a

new employee report must also disclose clients of his or her employing firm who paid the firm more than $5,000

during the reporting period due to services rendered by the reporting individual.]

INTERPRETATIVE RULING NO. 345

Date Issued: February 23, 1981

Applicable Rules : 34, 35

QUESTION CONSIDERED:

May a Senator-elect accept a wristwatch from a business group in his home State, presented to him in the course

of his appearance before the group in December, prior to swearing-in in January?

RULING:

Rule 35 of the Standing Rules of the Senate provides that Members, officers, and employees, and their spouses

and dependents, may not accept any gift or gifts having an aggregate value exceeding $100 during a calendar year

from any person, organization, or corporation having a direct interest in legislation before the Congress, or from

any foreign national, as those sources are defined in the Rule.

Since the Senator-elect was not a Member at the time of the presentation, he was outside of the coverage of the

Rule and its prohibition. In addition, section 102(g) of the Ethics in Government Act of 1978, as amended,

provides that reporting individuals are not obligated to disclose the receipt of gifts which are received at a time

prior to Senate service.

[NOTE: Although a Senator-elect is not subject to Senate Gifts Rule 35 prior to his or her swearing-in, a

Senator-elect is subject to statutory provisions (e.g., illegal gratuity, bribery, etc.).]

INTERPRETATIVE RULING NO. 346

Date Issued: March 6, 1981

Applicable Rule: 40

QUESTION CONSIDERED:

May a Member use names and addresses from his mailing list maintained by the Senate Computer Center to

invite individuals to a charitable fund-raising event? The Member had received a number of letters in response to

press accounts of a trip he had made to a foreign country, and the names of those who had written concerning

the trip were entered on the Member’s mailing list maintained by the Senate Computer Center. Photographs taken

during the trip were to be offered for sale at a home state art gallery, and all money received from photograph

sales was to be contributed to a charitable organization. The names and addresses from the Member’s mailing list

were not to be given to the art gallery or the charitable organization, all addressing work was to be done outside

Senate offices by volunteers, and neither government stationery nor the mailing frank were to be used.

APPENDIX A 263

RULING:

Paragraph 5 of Senate Rule 40 provides, ‘‘(t)he Senate computer facilities shall not be used . . . (c) to produce

mailing labels for mass mailings, or computer tapes and discs, for use other than in service facilities maintained

and operated by the Senate or under contract to the Senate.’’ The author of this provision stated during debate on

the Rule that it was his intention that the provision ‘‘ . . . just restates that in no case are Members of the

Senate or Senate Committees authorized to use Senate computer facilities for political or personal purposes.’’ 123

Cong. Rec. S4755 (1977) (emphasis added.)

The Committee concluded that the proposed use of a Member’s mailing list for the benefit of the charitable

organization would be for ‘‘personal purposes’’ and should therefore be avoided.

INTERPRETATIVE RULING NO. 349

Date Issued: October 5, 1981

Applicable Rules: 37, 41

QUESTION CONSIDERED:

A Member has established his principal campaign committee as a non-profit corporation under the laws of his

home State. May the Member’s Administrative Assistant, who has been designated to handle political funds under

Senate Rule 41, serve as president of the corporation?

RULING:

The Committee has ruled* that other than the restrictions on political fund-raising activity in Senate Rule 41, no

rule expressly prohibits political activity by staff during off-duty hours or during established and reasonable annual

leave time. If an employee intends to spend a substantial amount of time on campaign activities, however, the

Committee has ruled that a Senator should use his or her best judgment in determining whether to remove the

staff member from the Senate payroll or reduce his or her Senate salary commensurately. The Committee

concluded that if the staff member’s political activities conform to those guidelines, his political activity would not

be prohibited.

Concerning the staff member’s service as president of the incorporated entity, paragraph 6 of Senate Rule 37

provides:

No Member, officer, or employee of the Senate compensated at a rate in excess of $25,000 per annum and

employed for more than ninety days in a calendar year shall serve as an officer or member of the board of any

publicly held or publicly regulated corporation, financial institution, or business entity. The preceding sentence shall

not apply to service of a Member, officer, or employee as

(a) an officer or member of the board of an organization which is exempt from taxation under section 501(c) of

the Internal Revenue Code of 1954, if such service is performed without compensation.

As the committee is an incorporated political committee whose activities are regulated in some areas by the

Federal Election Commission pursuant to the Federal Election Campaign Act of 1971, the question arises whether

the staff person’s services as president of the corporation is prohibited by paragraph 6 of Rule 37. While that

paragraph provides, at subparagraph (a), that a Senate employee may serve as an officer of an organization

exempt from taxation under section 501(c) of the Internal Revenue Code of 1954, a political committee is exempt

from tax under section 527 of the IRC, not 501(c).

The Report of the Special Committee, which recommended the Code of Official Conduct, stated, with respect to

the limitations provided by paragraph 6, that service on corporate boards or in corporate offices ‘‘may entail an

unavoidable conflict of interest or the appearance thereof.’’ (S. Rept. 95–49 at 43). The Report cited a study by

the Association of the Bar of the City of New York for the proposition that a director or officer ‘‘actually

becomes a fiduciary for the corporation and for its stockholders charged with the duty to further their interest. He

obviously will find it difficult to do this at times because he is also charged with the duty of furthering the

public interest, and the two interests may well be in conflict.’’ (Id., at 43–44).

The Committee went on to observe that service on the board or as an officer of a tax-exempt organization would

not present the same kind of troubling issues, and that non-profit organizations have traditionally had less direct

interest in the legislative process and the possibilities of conflict of interest are less marked.

In view of the absence of any indication that paragraph 6 was intended to apply to activity with a political

committee, whether or not the committee is incorporated, and in view of the more specific limitations provided by

Rule 41 (on political fund-raising) and by Committee Interpretative Rulings (concerning non-fundraising political

activity), we do not believe that paragraph 6 of the Conflict of Interest Rule was intended to prohibit activity by

Senate employees with a Member’s principal campaign committee. Members should be aware, however, that

paragraphs 2 and 3 of the Conflict of Interest Rule provide a general prohibition on non-Senate activity which is

inconsistent or in conflict with the conscientious performance of official duties.

264 SENATE ETHICS MANUAL

———

*See Interpretative Ruling No. 302, dated February 21, 1980.

[Note: Subsequent to this ruling, Senate Rule 37, paragraph 6 was amended to specifically prohibit Members and

employees paid at a rate in excess of 120% of GS–15 from being compensated for service as an officer or

member of the board of any outside entity. Thus, properly designated employees may continue to serve in such

capacities for a campaign committee without compensation.]

INTERPRETATIVE RULING NO. 351

Date Issued: May 7, 1982

Applicable Area: Miscellaneous

QUESTION CONSIDERED:

Under what circumstances may a Member, in response to a specific request, donate an item for auction?

Specifically: (1) May a Member donate an item purchased and charged against the official stationery account of

the Senate? (2) May a Member donate publications (such as the Agriculture Yearbook) which have been allotted

to Members for distribution? And (3) Is a distinction to be made in answering questions (1) and (2) based on the

nature of the organization and the use to which the proceeds of the auction are to be put?

DISCUSSION:

The Committee has previously ruled (Interpretative Ruling No. 175) that the donation of property in a Member’s

possession as a function of his being a Member of the Senate is not prohibited by any provision of the Code of

Official Conduct, nor does it appear to violate any regulation of the Joint Committee on Printing or the Senate

Rules Committee.

In specific response to the questions posed:

(1) Subject to the limitations in numbered paragraph (3) below, a Senator may donate to an outside group for

auction an item of nominal value which happens to have been purchased and charged against the official

stationery account of that Member. While there is no Senate rule or regulation governing this question, the

Committee believes that the intentional procuring of such items with Senate funds for the purpose of donating

them to outside groups for auction would at a minimum give the appearance of, and, perhaps constitute, a misuse

of government funds in that the items purchased would be for non-government use. The Committee takes this

position irrespective of the nature of the outside group, and recommends that if an article is to be purchased for

presentation to a group as an item for auction, the personal funds of a Member, or excess political funds of the

Member’s principle campaign committee, would be preferable sources for defraying the cost of such an item.

(2) Subject to the limitations in numbered paragraph (3) below, a Senator may donate to an outside group for

auction a publication printed at government expense which has been allotted to him for distribution, such as Art

in the Capitol, the Capitol, or Agriculture Yearbooks.

(3) A distinction can be made with regard to these questions based on the nature of the organization and the use

to which the auction proceeds are to be put. The Committee finds no problem with the donation of items to an

outside group for auction where such items are of nominal value and are not intentionally procured with Senate

funds for such purpose, if the donee group is a non-profit, non-political organization. The Committee is concerned

that use of public property to raise funds for a for-profit enterprise or a political party could reflect discredit on

the Senate. In addition, the Committee would likewise be concerned if the particular use to which the fund-raising

proceeds were put were at variance with the stated purposes of the donee groups, i.e., if a tax-exempt non-profit

charitable or educational institution were to use the proceeds of such an auction for political purposes.

These concerns lead the Committee to conclude that, upon request, a Member may donate property in his

possession to an outside group for auction if such property is of nominal value and was not intentionally procured

with Senate funds for such purpose; if the donee group is either a non-profit or a non-political organization; and

if the uses to which the auction proceeds are to be put are neither for-profit nor political in nature. In addition,

subject to the stated limitations regarding the nature of the donee and the use of the auction proceeds, a Member

may donate to non-Senate groups publications printed at government expense such as Art in the Capitol, The

Capitol, or Agriculture Yearbook.

RULING:

(1) Upon request, a Member may donate for auction an item purchased and charged against the official stationery

account of that member if the item is of nominal value; was not intentionally procured for the purpose of

donation; and the donee group is either non-profit or a non-political organization.

(2) Upon request, a Member may donate for auction a publication printed at government expense, such as the

Agriculture Yearbook, if the item is of nominal value; was not intentionally procured for the purpose of auction;

and the donee group is either non-profit or a non-political organization.

APPENDIX A 265

(3) A distinction can be made with regard to these questions based on the nature of the organization and the use

to which the auction proceeds are to be put.

INTERPRETATIVE RULING NO. 352

Date Issued: August 2, 1982

Applicable Rule: 37

QUESTION CONSIDERED:

A Senate employee asked whether his activities as a professional racing car driver are in violation of Rule 37(5)

(Conflict of Interest) of the Code of Official Conduct.

FACTS:

The Senate employee had an oral agreement with an automotive accessories company which owns and maintains a

race car. Under the agreement, the firm reimburses him for race-related expenses, pays him 45 percent of any

prize money won, and provides him with driving equipment. Second, he has a similar agreement with another

firm, which rebuilds engines, imports car parts, rents race cars to professional drivers, and contracts with

automobile companies to race cars for them. Both firms may, at some future time, advertise their racing success

with the employee identified as the driver. Third, he occasionally provides auto racing-related services to various

automotive businesses. As an example, he states that he has written a story on a racing car for publication in an

automotive magazine, with the race car’s manufacturer paying for test expenses and the magazine paying for the

article.

DISCUSSION:

Paragraph 5 of Senate Rule 37 provides: ‘‘No Member, officer, or employee of the Senate compensated at a rate

in excess of $25,000 per annum and employed for more than ninety days in a calendar year shall (a) affiliate

with a firm, partnership, association, or corporation for the purpose of providing professional services for

compensation; (b) permit that individual’s name to be used by such a firm, partnership, association or corporation;

or (c) practice a profession for compensation to any extent during regular hours of the Senate office in which

employed. For the purposes of this paragraph, ‘‘professional services’’ shall include but not be limited to those

which involve a fiduciary relationship.’’

The Committee concluded that the employee’s relationship to the automotive firms was that of an independent

contractor, and therefore is not an affiliation within the meaning of Rule 37(5)(a). The Committee also noted that

the professional service addressed in paragraph 5 are typically those involving a fiduciary duty, including law,

medicine, engineering, architecture and similar types of activities. It did not believe that race car driving is a

profession within the meaning of Rule 37(5)(c), and accordingly, did not believe that paragraph 5 of Rule 37

prohibited the activity.

The Committee noted, however, that under Rule 37 an employee’s supervisor has a continuing responsibility to

evaluate and approve of an employee’s outside activities so long as those activities continue.

RULING:

The Committee ruled that the employee’s relationship with auto racing firms did not violate paragraph 5 of Senate

Rule 37. The Committee also noted that the employee had reported to his supervisor on his outside business

activities as required by Paragraph 3 of Rule 37 and that the supervisor had concluded that race car driving

would not result in any conflict of interest with his Senate Committee duties which are unrelated to auto racing.

INTERPRETATIVE RULING NO. 354

Date Issued: October 12, 1982

Applicable Rule: 40

QUESTION CONSIDERED:

A series of mailings, comprised of several groups of letters, has been sent by a Senator. Each group within the

series contains letters dealing with a different subject matter from each other group, and no one group exceeds

500 pieces in number. Does such a series constitute a ‘‘mass mailing’’ as defined by Committee Regulations if

each mailing within the series contains a common insert and the aggregate number for all mailings exceeds 500

within a 30-day period?

266 SENATE ETHICS MANUAL

563 See, e.g., Interpretative Rulings Nos. 3, 5, 22, 86, 88.

DISCUSSION:

The Regulations Governing the Use of the Mailing Frank (Chapter three, paragraph (2)(b)) define ‘‘mass mailing’’

as ‘‘Any mailing within any 30-day period of more than 500 pieces of substantially identical content . . .’’

Previous Committee interpretations have involved factual situations in which a single mailing was at issue. The

policy considerations which form the basis for requiring the registration of mass mailings and imposing a

moratorium on their use by candidates for re-election, however, are directed at large quantities of mailings with

substantially identical content. Thus, the Committee believes that a series of mailings, comprised of several groups

of letters, each of which contains a letter dealing with different subject matter from the other groups, and no one

group of which exceeds 500 in number, would nonetheless constitute a ‘‘mass mailing’’ if all mailings—regardless

of the differing content of the letters—contain at least one common insert and the aggregate number for all

mailings exceeds 500 within a 30-day period. A contrary conclusion would permit Members seeking reelection to

avoid the mass mailing moratorium altogether by varying the content of letters sent in quantity to which identical

inserts had been attached.

RULING:

Such a series of mailings would constitute a ‘‘mass mailing.’’

INTERPRETATIVE RULING NO. 357

Date issued: December 16, 1982

Applicable Rules: 34 and 41

QUESTION CONSIDERED:

A Senate staff member, while on vacation leave, worked on the re-election campaign of his supervising Senator,

as is permitted under Senate rules. Is it permissible under the Senate Code of Official Conduct for that staff

member to be reimbursed by the Senator’s principal campaign committee for expenses incurred by the staff

member on behalf of the Senator’s campaign?

DISCUSSION:

The Committee has previously ruled 563 that campaign involvement by a Senate staff member while on vacation

leave is permissible under Senate rules. Reimbursement to such a staff member for expenses incurred by him on

behalf of the supervising Senator’s re-election campaign effort would be permissible under the Senate Code of

Official Conduct and applicable regulations and Interpretative Rulings issued thereunder.

Senate Rule 34 (Title I of the Ethics in Government Act of 1978, as amended) requires any reporting individual

(as defined therein) to make annual disclosure of the receipt of reimbursements to cover expenses aggregating

$250 or more from any one source during a calendar year.

We do not address the question of whether such a reimbursement would constitute an ‘‘expenditure’’ for purposes

of the Federal Election Campaign laws, as that is a matter outside the jurisdiction of the Committee.

[Note: The Federal Election Commission has now issued regulations which, unless certain conditions are met,

include the payment of a volunteer’s travel expenses by the volunteer within the definition of an ‘‘advance,’’ so

that payment of such expenses will be deemed a ‘‘contribution’’ to the campaign and, therefore, potentially run

afoul of the criminal provision at 18 U.S.C. 603 which prohibits contributions to one’s employer. Under those

regulations, expenditures for other than travel expenses would appear to be a contribution, without exception. (See,

11 CFR 116.5)]

RULING:

Such reimbursement would be permissible under the Senate Code of Official Conduct and applicable regulations

and Interpretative Rulings issued thereunder.

INTERPRETATIVE RULING NO. 358

APPENDIX A 267

Date issued: December 17, 1982

Applicable Rule: 37

QUESTION CONSIDERED:

A successful candidate for election to the Senate is the chairman of the board and chief executive officer of a

publicly-traded company which he helped found and which has employed him in various executive positions for

two decades. Having been elected to the Senate, the Senator-elect intends to resign as chairman and chief

executive officer of the corporation. Regarding his proposed retirement from, transition service to, and agreement

not to compete with, his former employer, are the following courses of action consistent with Senate rules?

A. Retirement Bonus

In consideration of his past service to the company, may the company award the Senator-elect a retirement bonus

consisting of retirement benefits commencing in the year in which the Senator-elect will reach the normal

retirement age of sixty-five? The retirement benefits would continue for the lifetime of the Senator-elect, except

that should the period of his lifetime be less than ten years from the date such payments commence, the

payments remaining during such ten-year period would pass to his heirs.

B. Covenant Not-to-Compete

May the Senator-elect enter into an agreement not to compete with his company for a period of five years

following his departure from the Senate in exchange for which the company will compensate the Senator-elect in

two equal installments, one at the time of execution, and the second one year therefrom?

C. Service as ‘‘Transition Advisor’’

For the purpose of winding down and terminating the Senator-elect’s involvement with the company in an orderly

manner, may the Senator-elect serve the company as a ‘‘transition advisor’’ without compensation, for a period of

seven months after taking his Senate oath so as to be available for the purpose of responding to inquires from the

company’s new chairman about matters that occurred during the Senator-elect’s tenure with the company that may

be within his, the Senator-elect’s, sole knowledge?

D. Exercise of Stock Options

During the proposed period of the Senator-elect’s service as transition advisor, may he exercise stock options

previously granted him by the company but which, absent such service as a transition advisor, would otherwise be

lost to him?

DISCUSSION:

A. Retirement Bonus

The Commission believes that a corporation’s awarding of a retirement bonus to a former executive would be

permissible under the facts as presented if the following conditions were met:

1. The retirement bonus must be awarded strictly and exclusively in consideration of the candidate’s past service

rendered to the corporation.

There could exist the appearance of impropriety occasioned by the Senator-elect’s knowledge that his continued

receipt of retirement plan payments would be dependent, as a practical matter, upon the economic health and wellbeing of the corporation. The Committee therefore believes that the retirement bonus should not predicated or in

any way dependent upon, or related to, the future performance of the corporation, its publicly-traded stock or

debentures, or its future earnings.

2. Such a retirement plan could be provided in compliance with all reporting requirements of the Securities and

Exchange Commission and the Employee Retirement Income Security Act of 1974.

While there are no other conditions which must be met, certain situations which are dealt with by the Senate

Code of Conduct, such as ‘‘buy out arrangements’’ are analogous. In this case, the Senator-elect is not bound by

these guidelines, but may wish to consider them as applied, by way of analogy, to a retirement bonus factual

situation similar to the instant matter:

1. Such past services rendered should be sufficiently substantial as to justly entitle the candidate to the receipt of

such a bonus.

2. Such a retirement bonus should be a bona fide award of compensation in a manner not inconsistent with the

usual and customary practices of the corporation.

3. The retirement bonus should consist of a sum certain, determined at the time of severance from the

corporation.

4. The sum certain should be paid either as a lump-sum, at severance, or an annual payment of a certain percent

of the sum certain, payable within a reasonable period of time, and which sum certain should be funded in

advance. Advance funding avoids any appearance or impropriety occasioned by the Member’s knowledge that his

268 SENATE ETHICS MANUAL

continued receipt of retirement bonus payments would be dependent, as a practical matter, upon the economic

health and well-being of the corporation.

B. Covenant Not-to-Compete

The Committee understands that the board wants to assure that the Senator-elect does not in the future enter into

a business which would be in competition with the former company. The Senator-elect has therefore agreed to

enter into a covenant not to compete with his company for a period of five years following his departure from

the United States Senate, in exchange for which the company will compensate the Senator-elect by payments of

January 1, 1983, and on January 1, 1984.

The Committee believes that such an arrangement, if consistent with the applicable statues and case law of the

governing jurisdiction, is permissible under the Standing Rules of the Senate and poses no problems regarding the

propriety of the Senator-elect’s conduct while in office.

C. Service as ‘‘Transition Advisor’’

The Committee understands that the company has requested that the Senator-elect remain as a transition advisor

for a period of seven months to provide intermittent guidance to the new chairman; that the Senator-elect would

be available for the purpose of responding to inquires from the new chairman about matters that occurred during

the Senator-elect’s tenure with the company that may be within the Senator-elect’s sole knowledge; that such a

role would be confined to infrequent telephone conversations; that under no circumstances would the Senator-elect,

upon taking the oath of office, be involved in giving any strategic or planning advice to the company,

participating in any operating decision, or exercising any fiduciary relationship with the company; and that this

arrangement is necessary for the purpose of winding down and terminating in an orderly manner the Senatorelect’s involvement with the company.

The Committee believes that the proposed arrangement constitutes no substantive conflict of interest with the

duties and obligations imposed by the Senator-elect’s service as a Member of the United States Senate. The

Committee makes this statement, however, with the express understanding that the Senator-elect will serve for the

limited period stated; that any information he may provide to the new chairman of the corporation will be limited

exclusively to a discussion of matters which occurred in the past but which may be within the sole knowledge of

the Senator-elect; and that such service be uncompensated.

D. Exercise of Stock Options

The Committee believes that during the period of the Senator-elect’s service as a transition advisor he could

exercise stock options previously granted him by the company but which, absent such service as a transition

advisor, would otherwise be lost to him, if such service as a transition advisor is consistent with the conditions

set for in (C) above, and if no stock options are exercised by the Senator-elect which were not already granted

prior to his announcement and filing as a candidate for the United States Senate.

While it is the understanding of the Committee that the company will disclose all of these transactions to the

extent required by various federal and state laws, the Senator-elect has numerous reporting requirements under the

Standing Rules of the Senate and Title I of the Ethics in Government Act of 1978 with which he must comply.

In addition, the Committee notes that it is important not only that substantive conflicts of interest be avoided, but

also that there be no appearance of a conflict of interest. In this regard, paragraphs 1 and 4 or Rule 37, dealing

with conflicts of interest, require that a Member in no way improperly use his official position or exercise

influence in a manner which would result in personal financial gain. In addition, paragraph 2 of Rule 37 requires

that no Member engage in any outside business or professional activity which is inconsistent or in conflict with

the conscientious performance of his official duties. We believe that the avoidance of the appearance of

impropriety is especially important with regard to the legislative and oversight responsibilities of the Committees

on which the Senator-elect serves after taking the oath of office.

RULING:

A. Retirement Bonus

A corporation’s awarding of a retirement bonus to a former executive upon his election to the Senate would be

permissible if done in compliance with the express conditions discussed below.

B. Covenant Not-to-Compete

A Senator-elect could enter into a covenant not-to-compete with his former employer, for which he could be

compencated.

C. Sebvice as a ‘‘Transition Advisor’’

Service by the Senator-elect as transition advisory to his former employer would be permissible if done in

compliance with the express conditions discussed below.

D. Exercise of Stock Options

The Senator-elect could exercise all stock options granted him prior to his announcement and filing as a candidate

APPENDIX A 269

for the United States Senate.

INTERPRETATIVE RULING NO. 359

Date issued: January 3, 1983

Applicable Rules: 34 and 37

QUESTION CONSIDERED:

Does the Senate Code of Official Conduct prohibit a Senator from serving as the compensated General Chairman

of a national political party committee?

FACTS:

A Senator has been requested to serve as a General Party Chairman, a position which would include the following

duties: to formulate and articulate the goals and policies of the party; to provide advice and guidance to the

party’s National Committee and to its other officers and staff; and to coordinate the acdivities of the party’s

National Committee with those of the party’s Senatorial Committee, the Congressional Committee, and any

committee or committees organized to secure the election of the party’s candidates for the Presidency or Vice

Presidency of the United States.

DISCUSSION:

While the Committee found that no provision of the Code of Conduct specifically addressed the questions raised

by the ruling request, it concluded that two provisions must be considered.

Paragraph 2 of Rule 37 (Conflict of Interest) provides a general admonition against engaging in non-Senate

activities which interfere with the conscientious performance of Senate duties. While the Committee will

customarily offer its comments when asked, it has been the Committee’s policy to place upon the Member

primary responsibility for determining whether the activity he intends to engage in presents a conflict of interest

and to caution him that he has an on-going responsibility to avoid conflicts of interest and the appearance thereof.

Thus, while the Committee found that no inherent conflicts of interest appeared to be raised by the Senator’s

service as General Chairman, the Senator would nonetheless want to remain sensitive to the possibility that some

conflict might arise and, if that should occur, to take appropriate action.

As to the acceptance of compensation for services rendered as General Chairman, paragraph 5 of Rule 37

provides: ‘‘No Member, officer, or employee of the Senate compensated at a rate in excess of $25,000 per annum

and employed for more than ninety days in a calendar year shall (a) affiliate with a firm, partnership, association,

or corporation for the purpose of providing professional services for compensation; (b) permit that individual’s

name to be used by such a firm, partnership, association, corporation; or (c) practice a profession for

compensation to any extent during regular office hours of the Senate office in which employed. For the purposes

of this paragraph, ‘‘professional services’’ shall include, but not be limited to, those which involve a fiduciary

relationship.’’

The type of services that the drafters of the Code of Conduct intended to prohibit were those of a professional

nature, involving a fiduciary duty to outside commercial or business organizations, which on their face were likely

to present conflicts between Senate duties and outside responsibilities. The Committee therefore concluded that this

provision was not intended to be applicable to services provided as General Chairman of a political party.

RULING:

The Committee held that the Code of Official Conduct does not prohibit a Senator from serving as General

Chairman or receiving reasonable compensation commensurate with the services rendered to the party. Additionally,

the Committee concluded that Senate Rule 34 (Title I of the Ethics in Government Act of 1978, as amended)

requires the Senator to make an annual disclosure of the receipt of outside income aggregating $100 or more from

any one source during a calendar year, and reimbursements to cover travel and related expenses and aggregating

$250 or more from any one source during a calendar year.

[NOTE: The Committee, in a subsequent ruling, determined that a Senator serving as a General Chairman of a

national political party committee may not be compensated for services rendered. Compensation for such service

would also be prohibited by Rule 37(6)(b).]

INTERPRETATIVE RULING NO. 365

270 SENATE ETHICS MANUAL

Date issued: March 21, 1983

Applicable Rule and Areas: 37, Franking, Code of Official Conduct

(40 USC 193d)

QUESTION CONSIDERED:

Are there any Senate Rules or Federal statues which would limit the ability of a Senator to chair and actively

participate in a fund-raising effort, within the Senate using Senate facilities and employees, on behalf of a

national, non-profit, tax-exempt charitable organization?

FACTS:

A Senator was asked by a national, non-profit, charitable organization to lead a fund-raising drive for the

organization within the Senate. As proposed, the Senator would solicit Members, officers, and employees of the

Senate, host luncheons in Senate facilities to solicit contributions and use his Senate letterhead and the ‘‘Inside

Mail’’ system to notify the Senate of the fund-raising effort and invite participation and contributions. The Senator

proposed that he would also make use of the volunteer services of his staff, or other Senate employees, during

normal Senate working hours.

DISCUSSION:

Charitable solicitations of Federal employees in the work place are generally regulated by Executive Orders of the

President. In an effort to combine all of the various charitable solicitations which Federal employees had been

exposed to in the work place, President Kennedy issued an Executive Order in 1962 which established the

Combined Federal Campaign as the sole charitable solicitation of Federal employees. The purpose and intent

behind the recognition of a single charitable solicitation each year has been adopted by each successive President.

The Office of Personnel Management, which has been directed by the President to administer the CFC, has

published regulations which direct that the charitable organizations which in the CFC limit their solicitation of

Federal employees at the work place to a single, yearly solicitation thought the auspices of the CFC. In this

instance, the charitable organization, which was the subject of the Senator’s inquiry, had been a participant in the

CFC for the preceding year.

The Congress has recognized the merit of a single, annual combined charitable solicitation of Members and

employees of the Congress in the work place, by inviting the CFC to solicit the Congress and to utilize

Congressional staff and pay mechanisms for that purpose (H. Res. 12, adopted by the Senate on September 14,

1977.) While the Congress is not bound by the regulations promulgated by OPM with respect to the CFC, the

Select Committee concluded that the underlying principles set forth in such regulations should be followed with

respect to the charitable solicitation of Members and employees of the Senate. In addition, the Committee was

apprised that Federal law, 40 USC 193(d) seeks to restrict charitable solicitations on the grounds of the Capitol.

For these reasons, and because the Committee agreed with the underlying principle that there should only be a

single, annual charitable solicitation within Congress, the Committee made clear that its recommendation did not

extend to the Senator’s participation in a charitable solicitation outside the Senate. The Committee believes that a

Senator could sponsor fund-raising events at other than Senate facilities and conceivably could, under policies

adopted by the Committee on Rules and Administration, utilize Capitol rooms or Senate office building rooms

under the Committee’s jurisdiction, to sponsor luncheons and announce that a charitable organization was soliciting

funds, etc., while making sure that no actual solicitation took place at the Senate facility. Similarly, a Senator

could make use of the volunteer services of Senate employees, acting on their own leave or evening or weekend

time, to assist in fund-raising events which might be held off of Capitol Hill. Such staff participation would not

violate any rule of the Code of Official Conduct, provided that, pursuant to Rule 37.3, the employee’s supervisor

was notified and approved of the employee’s participation.

The Committee also stated that under the Committee’s Advisory Opinion of August 14, 1978, on the use of

Senate letterhead, a Senator could use Senate letterhead to notify the Senator’s colleagues of the fact that a

particular charitable solicitation was in progress or to invite them to fund-raising events which the Senator might

host off of Capitol Hill. These informational letters or invitations to events could be sent through the ‘‘Inside

Mail’’ system of the Senate Post Office, should the Senator deem the mailings to be within the scope of the

official, representational duties of the Senator.

RULING:

For reasons involving the policy behind the Federal government’s Combined Federal Campaign and because of the

restrictions imposed by 40 USC 193(d), the Committee recommends that a Senator not become involved in a

charitable solicitation within the Senate. Such a recommendation would not apply to a Senator’s participation in

such a solicitation which was undertaken outside of Capitol Hill.

INTERPRETATIVE RULING NO. 366

APPENDIX A 271

Date Issued: March 16, 1983

Applicable Rule: 40, and Franking and Area

QUESTION CONSIDERED:

Is the 60-day moratorium on the use of the frank violated when a Senator sends a mass mailing under the frank

within 60 days of his State party’s nomination convention, if the convention may ‘‘designate’’ a candidate for the

party’s nomination although the nomination may still be contested in a subsequent primary?

FACTS:

Ethics Committee regulations provide that an election to which the 60-day moratorium on the use of the frank for

mass mailings is applicable includes a party convention or caucus which has authority to nominate a candidate for

the Senate.

A Senator’s home State’s election law provides that the party’s State convention could ‘‘designate’’ an individual

for the party’s Senatorial nomination. The individual so ‘‘designated’’ could nonetheless be challenged in the

primary following the State convention. In the case presented for the Committee’s consideration, another candidate

gained access to the primary ballot and challenged the incumbent who had been ‘‘designated’’ for nomination by

the State convention.

During the 60-day period before the convention, but not during the 60 days before the primary, the Senator used

the frank to send through the mail several newsletters which were mass mailings as defined at Title 39, United

States Code, section 3210(a)(5)(D). The Senator’s primary challenger complained to the Ethics Committee that the

use of the frank for mass mailings during the 60 days before the party’s convention was improper.

RULING:

The Committee held that the use of the frank for mass mailings within 60 days of the party’s convention was not

a violation of the moratorium requirements because under the State’s law the convention did not have the

‘‘authority to nominate’’ the party’s candidate for the Senate, but merely the authority to name a candidate as the

‘‘party’s designated candidate for nomination.’’

INTERPRETATIVE RULING NO. 367

Date Issued: April 11, 1983

Applicable Rule and Area: 37, Dual Compensation Act

QUESTION CONSIDERED:

May a Senate employee enter into a research contract with the Library of Congress to write a report for which he

will receive a $10,000 fee?

FACTS:

A Committee Chairman asked whether an employee on the Senator’s Committee staff could write a report for the

Library of Congress and receive a fee for the project. The Committee was advised that the proposed research

project would not present a substantive conflict of interest with the employee’s performance of official duties

because the project would be done on non-Senate time and with non-Senate resources; and that the Chairman had

approved the employee’s proposed activity.

RULING:

The Committee held that neither the Senate Code of Conduct nor the Dual Compensation Act (5 U.S.C. S333)

prohibited the proposed activity. It noted, however, that certain ‘‘appearance’’ questions could be presented. It

noted that it is the policy of the Federal Government generally, as expressed in an opinion of the Comptroller

General (B–148091, 41 C.G. 569), to approve the practice of permitting Federal employees to contract with the

Federal Government ‘‘only in those exceptional cases where the needs of the Government cannot reasonably be

otherwise supplied.’’ The basis for this public policy is the desire to avoid ‘‘favoritism and preferential

treatment.’’ Likewise, the regulations of the Library of Congress (LOC Reg. 1514–3) permit contracting with a

Federal employee as a consultant or expert only if such employee is ‘‘uniquely qualified’’ and is the ‘‘sole

source’’ of such expertise. The Committee noted it had been advised that the Library of Congress had concluded

that the Senate employee did possess ‘‘sole source’’ expertise for purposes of the proposed study.

INTERPRETATIVE RULING NO. 370

272 SENATE ETHICS MANUAL

Date issued: May 13, 1983

Applicable Rule: 37

QUESTION CONSIDERED:

May a Member establish and operate a charitable, tax-exempt public foundation?

FACTS:

A Member proposes to establish and operate a tax-exempt public foundation in accordance with the Internal

Revenue Code of 1954. The purpose of the foundation is to aid in the education, job training, and job placement

of handicapped citizens; to sponsor public policy forums; and to benefit other charitable organizations.

Funds for the foundation would be obtained by one or more of the following means: One or more fund-raising

receptions or events to be held annually; direct mail solicitations; the donation by the Member of honoraria

received for personal speaking engagements; and fund-raising reception to be held immediately before or after

personal speaking engagements by the Member. No Senate personnel, stationery, and the like would be used in

such fund-raising events.

DISCUSSION:

With the caveats expressed below, there is nothing in Senate Rules which would prohibit the establishment and

operation of the foundation as outlined. Paragraph 6 of Rule 37 (Conflict of Interest) expressly permits a Member

to serve as an officer or director of a tax-exempt organization or foundation, provided, however, that such service

is uncompensated. Receipt of reimbursements for necessary travel expenses would also be permitted, although such

reimbursements must be disclosed as required by Title I of the Ethics in Government Act of 1978.

The establishment of the foundation is consistent with Senate Rules provided there is no substantive conflict of

interest between the activities of the foundation and the official duties of a Member of the Senate. There could

be, however, appearance problems were the public policy forums sponsored by the Foundation not confined to

issues affecting or of concern to handicapped individuals, or should the public policy forums be viewed in any

way as related to the promotion or advancement of other legislative concerns of interest to the Member.

A Member will want to exercise care so that no appearance of a conflict of interest arises with regard to any

Foundation fund-raising activities which would be held in conjunction with (either preceding or following) personal

speaking engagements. Given the position of a Member of the Senate, it is possible that certain individuals would

suggest that a Member might require, as some quid pro quo for an appearance (whether related to official duties

or not,) a donation to the Foundation. The Committee recommends that the Member take such precautions as are

necessary to prevent that inference from being drawn.

While it is the stated intention that no Senate personnel, stationery, or the like would be used in any fund-raising

efforts for the foundation, the Committee believes that in as much as the activities of the Foundation would

constitute non-Senate business, no Senate personnel, stationery, or the like could be used in connection with any

activities of the Foundation, fund-raising or otherwise. Senate staff, of course, would not be prohibited from work

on behalf of the Foundation undertaken on non-Senate time.

RULING:

Within certain limitations, a Member may establish and operate such a foundation.

INTERPRETATIVE RULING NO. 377

Date Issued: October 31, 1983

Applicable Area: Franking

QUESTION CONSIDERED:

Pursuant to the franked mail privilege, may the surviving spouse of a deceased Senator utilize a facsimile of the

spouse’s signature on envelopes which will be used to disseminate franked mailings from the surviving spouse?

What types of mail matter may the surviving spouse of a deceased Senator send under the spouse’s franked mail

privilege?

DISCUSSION:

The franked mail statute, 39 U.S.C. section 3210 et seq., at section 3218, authorizes a surviving spouse or other

designated relative of a deceased Senator to utilize the franked mail privilege to send certain mail matter for a

period of 180 days after the death of the Senator.

APPENDIX A 273

RULING:

In response to the first question, the Committee ruled that it would be a correct interpretation of section 3218 for

the surviving spouse to use franked envelopes or mailing labels bearing the spouse’s own signature.

Second, the Committee ruled that it also was a correct interpretation of this section that the surviving spouse may

send, under his or her own frank, correspondence responding to condolences received concerning the Senator’s

death; matter including files and books being sent for ultimate deposit in a repository library; matters relating to

the closing of the Senator’s Senate offices; and other such matter pertaining to the official business of the Senate

as may be necessary and proper.

INTERPRETATIVE RULING NO. 380

Date Issued: March 1, 1984

Applicable Rule: 37

QUESTION CONSIDERED:

Is it consistent with the Code of Official Conduct for a Member, officer, or employee of the Senate to enter into

negotiations with prospective employers and sign a contract committing that individual to future employment, while

the Member, officer, or employee remains on the Senate payroll?

FACTS:

When a member, officer, or employee of the Senate reaches the conclusion and announces a decision to leave the

Senate, the possibility of future employment upon termination of his or her Senate employment becomes a matter

for consideration. Where future employment is an option, questions arise as to the propriety of negotiating with

prospective employers and entering into a contract for future employment, prior to the conclusion of Senate

service.

DISCUSSION:

Defining the appropriate level of activity which a Senator or Senate employee may engage in regarding a search

for future employment is a difficult undertaking. On the one hand, Members and employees, like all individuals in

society, have a right to search the marketplace in order to secure employment after terminating their current

position. On the other hand, because of the unique nature of their responsibilities to the Senate, including the

influence which they exercise over the legislative process, and because their every action is open to public

scrutiny, Members and employees seeking future employment are under a substantial obligation to avoid not only

an actual conflict of interest, but also the appearance of a conflict between their duties to the Senate and the

interests of the prospective employers with whom they are negotiating.

With the understanding that they would be diligent in fulfilling this responsibility, the Committee has recognized,

in Interpretative Ruling No. 79, October 11, 1977, that members and employees may carry out negotiations

regarding terms and conditions of employment with prospective employers. While this Committee has never

previously addressed the issue of the signing of a contract for future employment, we are aware that the Senate,

in adopting the disclosure provision of the Ethics in Government Act, has anticipated such activity and has

directed that those Senators and Senate employees who file an annual public financial disclosure statement must

disclose the existence of any ‘‘agreement for future employment’’.

RULING:

Neither the negotiating of terms of employment with a prospective employer nor the signing of a contract for

future employment is precluded by the Code of Official Conduct and may be undertaken before a Member,

officer, or employee terminates his or her Senate service.

INTERPRETATIVE RULING NO. 381

Date Issued: May 4, 1984

Applicable Area: Franking

QUESTION CONSIDERED:

The franking statute (39 U.S.C. 3210 et seq.) authorizes the franking of letters of congratulations to individuals

who have achieved some ‘‘public distinction.’’

Is the appointment of a constituent to be the Director of a State’s Museum of Natural History a ‘‘public

274 SENATE ETHICS MANUAL

distinction’’ for purposes of the Act?

RULING:

The appointment is a ‘‘public distinction’’ for which the franking statute authorizes the use of the frank to convey

congratulations to the designee.

INTERPRETATIVE RULING NO. 382

Date Issued: May 4, 1984

Applicable Area: Franking

QUESTION CONSIDERED:

The franking statute (39 U.S.C. 3210 et seq.) authorizes the franking of letters of congratulations to individuals

who have achieved some ‘‘public distinction.’’

Have students who have been awarded a Harry S. Truman Scholarship achieved a ‘‘public distinction’’ for

purposes of the Act?

FACTS:

The Harry S. Truman Scholarship Foundation, which has presented the scholarships, was established by Congress

as the official federal memorial to honor the thirty-third President of the United States. It is a continuing

educational scholarship program available to students throughout the nation and designed to provide opportunities

for outstanding students to prepare for careers in public service. The purpose of the Foundation is to recognize

President Truman’s high regard for the public trust, his lively exercise of political talents, his broad knowledge

and understanding of the American political system, and his desire to enhance educational opportunities for young

people.

RULING:

The receipt of a Harry S. Truman scholarship is a ‘‘public distinction’’ for which the franking statute authorizes

the use of the frank to convey congratulations to the recipient.

INTERPRETATIVE RULING NO. 385

Date Issued: July 31, 1984

Applicable Rule: 37

QUESTION CONSIDERED:

Under what circumstances may a Senator utilize the services of an individual who is currently employed by an

American corporation and who would continue such employment during the period of time that he was acting as

a volunteer, uncompensated consultant to the Senator?

FACTS:

The Select Committee was asked for its opinion regarding a proposal under which a Senator would utilize the

services of a former Senate employee as a part-time consultant in the Senator’s office. Under the proposal, the

individual would spend approximately one day per week in the Senator’s office and would provide the Senator

with advice and counsel regarding the administrative operation of the office, future hiring requirements, and his

views as to those legislative issues and initiatives which the Senator might wish to evaluate for development by

staff. The proposed arrangement between the Senator and the individual would be: that the individual would

continue his full-time, compensated duties as head of the Legislative Office of an American Corporation; that the

Senator would not compensate him for his efforts on the Senator’s behalf; that the Senator would reimburse the

individual for any out-of-pocket expenses incurred on the Senator’s behalf from Senate allowances; and that,

although the individual would continue as an employee of the Corporation during the time in which the Senator

would be utilizing the individual’s expertise, he would engage in no campaign-related activities and he would

conduct himself in such a manner so as to avoid both an actual conflict of interest and the appearance of a

conflict between his responsibilities to the Senator and his duties with the corporate employer.

APPENDIX A 275

DISCUSSION:

On several occasions, the Committee has ruled upon the propriety of various proposals which involved a Senator’s

interest in utilizing the services of an individual who would, at the same time, retain some degree of affiliation

with another non-Senate employer. In Interpretative Ruling No. 283 (dated September 25, 1979), the Committee

approved the hiring, as part-time Senate employees, of two attorneys, one of whom was a partner in a law firm

and the other was a member of a State legislature. In Interpretative Ruling No. 314, (dated March 25, 1980), the

Committee approved the proposal of a Senator to hire, as a part-time staff assistant, an individual who would

continue on as a full-time writer for a group which was a registered lobbyist. Lastly, in a letter dated August 6,

1982, the Committee approved a Senator’s request to hire, as a full-time Senate employee, an individual who was

then an employee of a major industrial corporation and who proposed to take a ‘‘leave of absence’’ from the

corporation while working for the Senate, do return to the corporation when he completed his Senate service, and,

while a Senate employee, to retain his health/retirement/life insurance benefits with the corporation, a portion of

which would continue to be provided by the corporation.

While several of these rulings turned on the question of the application of paragraph 5 of Rule 37 (‘‘Conflict of

Interest’’) and the issue of what constitutes an ‘‘affiliation’’ as that term is used in Rule 37.5, the Committee

noted that because this particular individual would not be compensated by the Senate, the threshold test for

application of Rule 37.5 would not be met in this case. On the other hand, all of these rulings had, as a common

concern, the general issue of what constitutes either an actual conflict of interest or the appearance of a conflict

of interest between the prospective employee’s duties to the Senate and his or her responsibilities to the nonSenate employer with whom the employee would have a continuing employment relationship. Such a concern also

applies in this particular case, despite the fact that this individual would not be a compensated Senate employee.

Because of the nature of the individual’s employment with the employing corporation, the Committee was of the

opinion that the Senator would be under a substantial obligation to ensure himself that the individual would make

clear to those with whom he has contact on the Senator’s behalf, both within the Senate and among the public,

that he is acting in his capacity as the Senator’s assistant and not as an employee of his employing corporation.

In that regard, the Committee noted that the Senator’s letter of inquiry made clear that the individual would notify

those individuals with whom he has contact on the Senator’s behalf.

While the Committee was of the opinion that the potential for confusion as to the individual’s role does exist, the

Committee also believed that such confusion can be successfully minimized by the Senator’s active monitoring of

the activities undertaken on his behalf by the individual. Although the Committee could not assure the Senator

that his acceptance of the services offered by the individual would not result in some measure of public interest,

the Committee was confident that the Senator would be able to structure the individual’s efforts so as to address,

before the fact, the potential for confusion or the appearance of a conflict regarding his responsibilities to the

Senate. In that regard, the Committee advised that it would be necessary for this individual to recuse himself from

any activity on the Senator’s behalf which might impact on the interests of the employing corporation specifically

and its industry generally.

Lastly, the Committee noted that Rule 41, paragraph 6(a) would require the Senator to disclose the source of the

compensation which the individual would be receiving while performing services for the Senator, unless, as set

forth in paragraph 6(c) of Rule 41, the individual would be performing those services for less than eight hours

per week.

RULING:

No rule of the Senate would preclude the proposal outlined above. While the opportunity for some confusion does

exist with respect to the individual’s role as an uncompensated advisor to the Senator and, simultaneously, a

compensated employee of a major corporation, the Senator will be under a substantial obligation to make every

effort to minimize the potential for such confusion. With the Senator’s assurance that such efforts will be

undertaken and assuming the Senator’s active role in assuring that there is no actual or apparent conflict of

interest between the individual’s duties to the Senator and his responsibilities to his employer, the Select

Committee advised the Senator that the proposal could be undertaken.

[Note: Under subsequent rulings of the Committee (IR–444), the individual in this ruling would not be permitted

to provide volunteer services to a Senator unless the Senator first determined that the services were being

provided primarily for the educational benefit of the volunteer, rather than to aid the Senator in the performance

of his or her official duties.]

INTERPRETATIVE RULING NO. 386

Date Issued: August 8, 1984

Applicable Rule and Area: 35; Ethics in Government Act of 1978

QUESTION CONSIDERED:

Are there any circumstances when a loan of an item might constitute a ‘‘gift’’, to which the restrictions of Senate

Rule 35, on Gifts, and the financial disclosure requirements of the Ethics in Government Act, might apply?

276 SENATE ETHICS MANUAL

FACTS:

The Ethics Committee has routinely ruled that no provision of the Code of Conduct prohibits Members from

accepting the use of loaned furniture, furnishings, and office equipment for use in their offices. The rulings have

also advised that use of the items is subject to approval by the Committee on Rules and Administration. Senators

now ask whether they should disclose their use of those items.

DISCUSSION:

The definitions of the term ‘‘gift’’, both in Senate Rule 35, at paragraph 2, and in the Act at section 107(3),

include the term ‘‘forbearance,’’ which means the refraining of enforcement of something that is due, such as a

debt, right, or obligation. Under this standard, the use of borrowed furniture or equipment could arguably qualify

as a gift. At the same time, however, there are compelling reasons why these items should not be treated as gifts.

First, the items are not meant for the personal use or permanent possession of Members or staff. Ownership is

retained by the lender. Second, the items are frequently the products of home state businesses and organizations

which Members of Congress have a traditional role in promoting. Finally, in the case of business equipment, its

use provides the Senate with an evaluation of its desirability for purchase by the Senate. For these reasons, the

Committee decided that the restrictions of the Senate Gifts Rule and the financial disclosure provisions of the

Ethics in Government Act of 1978 are inapplicable.

Notwithstanding this determination, the Committee agreed that there is a public interest in providing a formal

means for sanctioning and disclosing the use of private property for official use. To accomplish this objective, the

Committee determined that all Members who either now possess or plan to use loaned furniture, furnishings, and

equipment should submit a written request to the Ethics Committee for a determination that the arrangement is

within the standards of the Code of Official Conduct. In turn, the Ethics Committee will make available for

public inspection at the office of the Committee all responses which sanction the use of loaned furniture,

furnishings, and equipment.

RULING:

Items such as office furniture, furnishings, and business equipment lent by owners to Members for use in Senate

offices do not constitute gifts for purposes of the Gifts Rule or the Financial Disclosure Act. They are, however,

subject to the disclosure procedures set forth in this ruling.

[Note: The Senate Gifts Rule definition of ‘‘gift’’ is now in section 1.(b) of Rule 35 and generally includes

anything of monetary value. For disclosure purposes gifts are defined in section 109(5) of the amended Act. More

importantly, IR–444, issued in May 1992 now prohibits the loan of equipment (except for testing programs

approved by the Committee on Rules and Administration). The procedure described in this IR (i.e. 386) continues

in-place for loans of furniture and furnishings. Under IR–444, such loans are permissible only when the loan

comes from a home state producer or distributor of the product.]

INTERPRETATIVE RULING NO. 387

Date Issued: September 17, 1984

Applicable Rule: 41

QUESTION CONSIDERED:

Does Rule 41 restrict designated staff to political fund-raising only on behalf of the employing Senator?

RULING:

The scope of the Rule’s permission is set forth in the second sentence of the Rule, where it provides that the

prohibition ‘‘does not apply to two assistants to a Senator . . . who have been designated by that Senator to

perform any of the functions described in the first sentence of this paragraph . . .’’ (Emphasis added). This

underscored ‘‘any of the functions’’ language refers to the language in the first sentence, which in sweeping terms

covers handling money ‘‘in connection with any campaign of the nomination for election, or the election, of any

individual to be a Member of the Senate or to any Federal office.’’ (Emphasis added).

Upon review, the Committee agreed unanimously that the text allows properly designated staff, with the employing

Senator’s permission, to receive, solicit, be a custodian of, or distribute funds on behalf of any campaign

committee that is established, organized, and controlled by any Senator or group of Senators. This permission

extends, for example, to fund-raising on behalf of (a) any Senator’s principal campaign committee, whether for

reelection to the Senate or election to any other office; (b) any multi-candidate committee established and

controlled by any Senator; and (c) any multi-candidate committee established and controlled by any group of

Senators. The permission would not extend, however, to a committee not established and controlled by a Senator,

such as committees established by trade associations, interest groups, corporations, labor unions, or groups

advocating particular public policy or ideological causes.

APPENDIX A 277

INTERPRETATIVE RULING NO. 389

Date issued: July 2, 1984

Applicable Rule: 38

QUESTION CONSIDERED:

How must a Member disclose his use of campaign funds to defray the otherwise unreimbursed expenses he incurs

in connection with his official duties?

dISCUSSION:

Rule 38 allows funds derived from ‘‘political committees’’ to be used to defray expenses incurred by a Member

in connection with his official duties. The Rule’s legislative history indicates that the limitations contained in the

Federal Election Campaign Act on both the sources and amounts which could be contributed to political

committees and the Act’s public disclosure requirements were major factors in leading the Senate to authorize the

use of such funds to defray official expenses.

The Committee believes that the Senate Code of Official Conduct in general, and Senate Rule 38 in particular,

reflect a Senate policy which requires timely public disclosure of Members’ financial transactions. With that policy

in mind, the Committee believes Members who use campaign funds to defray otherwise unreimbursed expenses

incurred in connection with official duties should see to it that an itemization of expenditures is publicly

disclosed. When a campaign committee defrays a Senator’s official expenses, the committee should report each

itemized expenditure in its reports filed under the Federal Election Campaign Act. If a Member chooses to transfer

funds to an office account for subsequent disbursement, full disclosure of the use to which those funds have been

put may be reported in the ‘‘reimbursement’’ section of the Senator’s financial disclosure report under the Ethics

in Government Act of 1978.

RULING:

Members who use campaign funds to defray otherwise unreimbursed expenses incurred in connection with official

duties should see to it that an itemization of expenditures is publicly disclosed. When a campaign committee

defrays a Member’s official expenses, the campaign committee should report each itemized expenditure in its

reports filed under the Federal Election Campaign Act. If a Member chooses to transfer funds to an office account

for subsequent disbursement, full disclosure of the use to which those funds have been put may be reported in the

‘‘reimbursement’’ section of the Senator s financial disclosure report under the Ethics in Government Act of 1978.

INTERPRETATIVE RULING NO. 393

Date Issued: July 31, 1984

Applicable Area: Franking

QUESTION CONSIDERED:

May a Member use his franking privilege to communicate with State and local officials on matters of State and

local concern, and with constituents who have contacted the Member on State and local matters?

FACTS:

A Member asked whether the provision ‘‘matters of purely State and local concern are not frankable’’ found in

the Regulations Governing the Use of the Mailing Frank prohibits him from corresponding with constituents and

State and local officials on State and local issues.DISCUSSION:

The provision in the Regulations which prohibits franked mailings on State and local issues is too restrictive when

read in isolation from other provisions of the statute. On the specific question presented, we believe the franking

privilege may properly be used to communicate with State and local officials on matters of State and local

concern, and with constituents who have contacted a Member on State and local matters. This conclusion is based

on the permission found in section 3210(a)(2) of Title 39, U.S. Code, which authorizes the franking privilege for

matters which pertain to ‘‘any congressional representative function generally.’’ Notwithstanding this determination,

the statement in the Regulations, ‘‘matters of purely State and local concern are not frankable’’ is valid as applied

to mass mailings which are sent at a Member’s initiative and which should relate principally to federal matters

and the impact of federal policies on States, communities, and individual citizens.

RULING:

A Member may use his franking privilege for correspondence on State and local matters under the circumstances

278 SENATE ETHICS MANUAL

described.

INTERPRETATIVE RULING NO. 394

Date Issued: January 18, 1985

Applicable Rules: 34, 35

QUESTION CONSIDERED:

Are there any circumstances under which a Member, officer, or employee of the Senate could accept a ticket to

an inaugural event which would be provided by an individual representing a company with a political action

committee?

FACTS:

An employee on the personal staff of a Member of the Senate has been offered two tickets to attend an inaugural

event by an individual who is an official of a company which maintains a political action committee registered

with the Federal Election Commission.

DISCUSSION:

While Rule 35 (Gifts) provides that Members, officers, and employees of the Senate may not accept a gift, as

that term is defined in paragraph 2 of the Rule, from what is deemed to be a ‘‘prohibited source’’ which would

include an individual who represents a corporation which maintains a political action committee registered with the

Federal Election Commission, an exception to this prohibition is provided for in paragraph 2(a)(6) of the Rule.

Under this exception, ‘‘meals, beverages and entertainment’’ may be accepted from an individual who might

otherwise be deemed a ‘‘prohibited source’’ for other purposes of the Rule, provided that the ‘‘meals, beverages,

and entertainment’’ are not accepted in connection with a gift of overnight lodging. In reviewing this exception to

the definition of a ‘‘gift’’, the Committee concluded that the intent of the framer of this provision was to allow

Members, officers, and employees of the Senate the ability to accept meals, beverages and entertainment in the

Washington Metropolitan Area and that such acceptance would not be contrary to the provisions of paragraph 1 of

the Gift Rule, so long as the acceptance was not in connection with a gift of overnight lodging. Relying on this

exception and the legislative history, the Committee ruled that a ticket or tickets to an inaugural event could be

accepted from a ‘‘prohibited source.’’

If the recipient of the ticket or tickets is required to file a public financial disclosure statement, pursuant to Rule

34 of the Standing Rules of the Senate, and if the value* of the food, beverages, and entertainment received was

in excess of $250, the receipt of the ticket or tickets would be disclosed as a ‘‘gift of transportation, lodging,

food, or entertainment.’’

RULING:

The gift of a ticket or tickets to an inaugural event may be accepted under Rule 35 of the Standing Rules of the

Senate (Gifts), pursuant to the exception set forth in paragraph 2(a)(6) of the Rule, and depending upon the value

of the ticket or tickets, their receipt should be disclosed on the annual public financial disclosure statement as

required by Rule 34 of the Standing Rules of the Senate.

[Note: The Gifts Rule exception discussed in this ruling has been deleted from the Senate Gifts Rule. For

guidance on accepting tickets to inaugural events see the Committee’s January 14, 1993 Dear Colleague letter. In

that letter, the Committee granted a waiver permitting Senate Members, officers, and employees to accept tickets

to inaugural events, in recognition of the uncertainty surrounding the value of these tickets and because of the

unique public character of such events. Consult that letter for details.]

INTERPRETATIVE RULING NO. 395

Date Issued: April 23, 1985

Applicable Area: Franking

QUESTION CONSIDERED:

The franking statute (39 U.S.C. 3210 et seq.) authorizes the franking of letters of congratulations to individuals

who have achieved some ‘‘public distinction.’’ Are the following ‘‘public distinctions’’ for purposes of the Act?

l) a Sr. High School student who is graduating as valedictorian;

2) a Sr. High School student who is graduating as salutatorian; and;

APPENDIX A 279

3) Sr. High School students who are graduating within the top ten academic ranking of their class.

RULING:

While being named valedictorian or salutatorian of your high school, or graduating within the top ten

academically, is certainly a significant personal achievement, such an accomplishment does not constitute a ‘‘public

distinction’’ for purposes of the franking statute.

INTERPRETATIVE RULING NO. 396

Date Issued: May 13, 1985

Applicable Rule: 37

QUESTION CONSIDERED:

How do the post-employment lobbying restrictions on Rule 37, paragraph 9 (‘‘Conflict of Interest’’) apply to a

former Senate employee who held positions with several Senators during his career, including two different

Chairmen during the last six months of Senate employment?

Standing Rule 37, paragraph 9 provides that ‘‘[i]f an employee on the staff of a committee upon leaving his

position becomes . . . a registered lobbyist or is employed or retained by a . . . registered lobbyist for the

purpose of influencing legislation, such employee may not lobby Members of the committee for which he worked

or the staff of that committee for a period of one year after leaving his position.’’ Rule 37, paragraph 10(c)

provides the definition for the term ‘‘lobbying.’’

FACTS:

The long-time staff director of a Senate Committee retired on January 3, 1985 to begin a new career as a

consultant to a political organization. During his employment with the committee, he was supervised by several

Chairmen. A few weeks after his retirement, the new committee Chairman asked the staff director to return to the

Senate payroll as a consultant to the committee for about six weeks so as to provide a transition period for the

new staff director. The former staff director, who had been contemplating registering as a lobbyist under the 1946

Federal Regulation of Lobbying Act, was unsure about whether the restrictions of Rule 37, paragraph 9, was

applicable to his committee associations as of January 3, the date of his initial retirement, or as of the conclusion

of his subsequent six weeks consultancy to the committee.

RULING:

Where an employee leaves the Senate payroll and registers as a lobbyist under the 1946 Federal Regulation of

Lobbying Act, the post-employment lobbying restrictions of Rule 37, paragraph 9, would prohibit such an

individual from ‘‘lobbying’’ the Senators and staff who held positions with that individual’s former committee on

the final day of his employment with the committee. Under the facts presented, such date was deemed to be the

termination of the employee’s six week consultancy with the committee rather than the earlier date on which he

had ‘‘retired.’’

An individual who is uncertain as to whether he is required to register pursuant to the Lobbying Act should

confer with the Clerk of the House of Representatives.

[Note: The Lobbying Disclosure Act of 1995 repealed and replaced the Federal Regulation of Lobbying Act of

1946. Those with questions about the requirements for registration as a lobbyist should consult with the Secretary

of the Senate, Office of Public Records. Moreover, section 207 of Title 18 of the U. S. Criminal Code now also

prohibits lobbying and other post-employment activities by certain Senate staffers and should be consulted.]

INTERPRETATIVE RULING NO. 397

Date Issued: May 24, 1985

Applicable Rules: 34, 37

QUESTION CONSIDERED:

What Senate Rules or ethical considerations are relevant with regard to a Senator’s spouse accepting a

compensated position with a tax-exempt, educational organization whose purpose is educating the public on a

policy issue before the Congress?

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FACTS:

A Washington, D.C., based tax-exempt, educational organization has offered the spouse of a Senator a

compensated position as its Director of Public Education. The organization, which receives no funding from the

Federal government, has as its purpose the education of the public on a narrowly focused policy issue which is

the subject of on- going hearings and legislative initiatives in Congress. As the Director of Public Education, it

will be the responsibility of the spouse to promote the programs and interests of the organization and to increase

the public’s awareness of the policy issue which is the focus of the organization’s efforts.

DISCUSSION:

Only two provisions of the Code of Official Conduct specifically deal with the spouse of a Member: Standing

Rule 34 (Public Financial Disclosure) which requires a Senator to disclose the source of any earned income in

excess of $1,000 received by a spouse, and Standing Rule 35 (Gifts) which is applicable not only to Members,

officers, and employees, but also to spouses and dependents as well. The Committee has also recognized that the

compensated employment of spouses is a matter of interest to the public. Thus, in Interpretative Ruling No. 336,

dated September 5, 1980, the Committee stated its view that a Senator’s spouse’s lobbying on behalf of a

corporation on whose board the spouse served, might, under certain circumstances, reflect adversely upon the

Senate as an institution.

Reviewing the facts presented in this case, the Committee noted that the organization which would employ the

spouse had a tax exemption from the Internal Revenue Service and therefore, under regulations promulgated by the

Service, had agreed to the substantial limitations imposed by the Internal Revenue Code on the lobbying of

Members of Congress. The Committee concluded, therefore, that the specific concerns outlined in Interpretative

Ruling No. 336 would not be directly applicable to this proposed employment. The Committee further noted that

the spouse’s employment with the organization would be disclosed on the Senator’s public financial disclosure

statement. Given heightened public interest in the professional activities of spouses of Members, the Committee

expressed its hope that spouses, as well as Members, would conduct their professional and business activities so

as not to reflect adversely upon the Senate as an institution.

RULING:

No Rule of the Senate prohibits the spouse of a Senator from accepting compensated employment with a taxexempt educational organization where the spouse’s responsibilities will be focused on educational activities for the

public rather than lobbying the Congress. Such employment must be disclosed by the Senator on the annual public

financial disclosure statement as mandated by Rule 34 of the Standing Rules of the Senate.

INTERPRETATIVE RULING NO. 400

Date issued: August 2, 1985

Applicable Rule and Area: 38, FECA

QUESTION CONSIDERED:

May a Senator direct that his principal campaign committee open a separate bank account and disburse funds from

that account for the purpose of offsetting unreimbursed but official expenses incurred by the Senator in the

operation of his Senate office?

FACTS:

The principal campaign committee of a Senator would raise contributions and segregate certain of those funds in a

bank account which would be opened by the committee and administered separately from other committee

accounts, the exclusive purpose of which would be to offset unreimbursed but official expenses incurred in the

operation of the Senator’s office. The Senator’s reelection campaign committee is concerned about the possible

application of certain provisions of the Internal Revenue Code to funds contributed to and then expended by the

committee for the purpose of offsetting unreimbursed but official expenses of operating the Senator’s office.

Contributors to the account would be apprised of its purpose and the possible tax implications of such

contributions. The Committee .has agreed that the contribution limitations and disclosure provisions of the Federal

Election Campaign Act would be fully applicable to this account.

APPLICABLE RULE:

Rule 38 of the Standing Rules of the Senate provides that:

‘‘1. No Member may maintain or have maintained for his use an unofficial office account. The terms ‘unofficial

office account’ means an account or repository into which funds are received for the purpose, at least in part, of

defraying otherwise unreimbursed expenses allowable in connection with the operation of a Member’s office. An

APPENDIX A 281

unofficial office account does not include, and expenses incurred by a Member in connection with his official

duties shall be defrayed only from-

‘‘(a) personal funds of the Member;

‘‘(b) official funds specifically appropriated for that purpose;

‘‘(c) funds derived from a political committee as defined in section 301;

‘‘(d) of the Federal Election Campaign Act of 1971, as amended (2 U.S.C. 431); and

‘‘(e) funds received as reasonable reimbursements for expenses incurred by a Member to the organization making

the reimbursement.

‘‘2. No contribution (as defined in section 301(e) of the Federal Election Campaign Act of 1971, as amended (2

U.S.C. 431)) shall be converted to the personal use of any Member or any former Member. For the purposes of

this Rule ‘‘personal use’’ does not include reimbursement of expenses incurred by a Member in connection with

his official duties.’’

The Committee would like to open a separate bank account to be administered solely by the Committee whose

purpose would be to offset such office expenses.

RULING:

A separate bank account to be established by a Senator’s reelection committee would be consistent with the

provisions of Standing Rule 38 (Unofficial Office Accounts) provided that contributions to the account would be

limited to the contribution levels established in the Federal Election Campaign Act, and that contributions received

and disbursed by the account would be disclosed as is provided for in the Act. We are of the opinion that

contributions received by this separate account could be utilized by the Senator, pursuant to section l(c) of

Standing Rule 38, to defray official, but unreimbursed, expenses of holding public office.

INTERPRETATIVE RULING NO. 402

Date Issued: October l8, l985

Applicable Rules: 37, 41

QUESTION CONSIDERED:

May a Senator’s personal secretary receive compensation from her employing Senator’s principal and multicandidate campaign committees for the political services she is performing for these committees?

FACTS:

A Senator’s personal secretary devotes some time in the evenings and on weekends consulting with her employing

Senator’s campaign committee and multi-candidate committee. The employing Senator emphasizes that the services

she performs take place during her off-duty hours and during the established and reasonable periods of vacation

time provided to his staff. Her campaign committee responsibilities include matters relating to the Senator’s

political schedule, identification of prior and potential contributors, and preparation of the reports required by the

Federal Election Campaign Act. She is designated as one of the Senator’s staff who are allowed by Senate Rule

41 to receive, solicit, and disburse campaign funds.

DISCUSSION:

Senate Rule 41 sets forth the general rule that Senate staff are not allowed to solicit, receive or disburse

campaign funds. The Rule provides, however, that each Senator may designate as many as two individuals on his

personal staff who are allowed to receive, solicit and disburse campaign funds for a committee or committees

established by a Senator. In light of the Senator’s designation of his secretary to perform these functions, she is

allowed to do so under Senate Rules.

The Committee has ruled on a number of occasions that a Senate employee may engage in political activity not

involving the solicitation, receipt, custodianship or distribution of campaign funds outside of regular office hours,

on weekends and during regular and reasonable periods of vacation time.

Finally, the Senate Conflict of Interest Rule (Rule 37) allows Senate staff to receive compensation for non- Senate

employment so long as the employment is not inconsistent or in conflict with the conscientious performance of

official duties. Paragraph 3 of Rule 37 requires that an employee’s supervising Senator make the initial

determination that no conflict exists. In light of the Senator’s apparent determination that his secretary’s services

for his campaign committees do not conflict with her Senate duties, her receipt of compensation is not prohibited

by Senate Rules. However, the Senator must continue to monitor the employee’s outside activities so that they

will not give rise to a conflict of interest.

282 SENATE ETHICS MANUAL

RULING:

The staffer may receive compensation from the employing Senator’s principal or multi-candidate campaign

committee for the services she is providing.

INTERPRETATIVE RULING NO. 405

Date Issued: December 18, 1985

Applicable Rule: 38

QUESTION CONSIDERED:

May a Member borrow money from his principal campaign committee?

FACTS:

A Member asked whether he may borrow money from his principal campaign committee, with the loan to be

secured by a promissory note which establishes an interest rate comparable to prevailing commercial interest rates.

DISCUSSION:

The Senate in 1968 established a Rule which provided that Senators may only use campaign funds for political or

official purposes, and that Senators ‘‘shall not use directly or indirectly any part of any contribution for any other

purpose.’’ The text of Rule 38 as it exists today ‘‘essentially restates’’ this 1968 Rule, according to the 1977

committee report which accompanied the current Senate Code of Official Conduct.

In addition, the influential position a Member holds in deciding upon the disposition of funds held by his

campaign committee could have the effect of making the Member both the lender and the borrower. Fulfilling

these two roles may present the appearance of, or an actual, conflict of interest.

Finally, the Ethics Committee cannot assume the role of judging the adequacy of the security, interest rate, and

repayment terms of routine borrowing by Members. That role is better fulfilled by Members making their financial

transactions with independent lenders, and having their financial arrangements scrutinized through their public

financial disclosure reports.

RULING:

The historical background of Senate Rule 38, and other considerations, indicate that the Rule does not allow a

Member to borrow from his principal campaign committee.

[Note: In 1995, the Federal Election Commission issued regulations defining ‘‘personal’’ use under the Campaign

Act (see, 11 CFR).]

INTERPRETATIVE RULING NO. 406

Date Issued: December 18, 1985

Applicable Area: Foreign Gifts & Decorations Act

QUESTION CONSIDERED:

May Members keep gifts which have a value of more than $100 if those gifts are given by foreign governments?

RULING:

The Foreign Gifts and Decorations Act provides that any Federal official, including any Member, officer, or

employee of the Senate, who receives from a foreign government a gift of more than ‘‘minimal value’’ is

required to deposit the gift with the Secretary of the Senate for disposal. The Act also provides that the Select

Committee on Ethics may allow such gifts to be retained and used by the Member, officer, or employee during

his Senate tenure.

Pursuant to its authority under the Foreign Gifts and Decorations Act, the Select Committee has determined that

any gift having a value of over $100 given to Members, officers, and employees of the Senate by a foreign

government shall be deemed to be of more than ‘‘minimal value’’ for purposes of the Act and shall therefore be

deemed to have been accepted on behalf of the United States Government. If a Senator who receives from a

foreign government a gift of more than ‘‘minimal value’’ would like the Committee to authorize the display or

APPENDIX A 283

use of the gift in his Senate office, he should contact the Committee.

INTERPRETATIVE RULING NO. 407

Date Issued: January 28, 1986

Applicable Area: Use of Senate Letterhead

QUESTION CONSIDERED:

May a Senator use letterhead including the words ‘‘United States Senate’’ for letters to be sent from his office to

individuals who have achieved a ‘‘personal distinction’’?

DISCUSSION:

In 1978, the Select Committee issued an advisory opinion on the use of ‘‘United States Senate’’ letterhead which

held that Members could not use such letterhead for letters sent out over their signatures by a non-Senate

organization but could use such letterhead for other correspondence from their offices.

In 1981, the Congress repealed that portion of the franking statute (39 U.S.C. section 3210 et seq.) authorizing the

use of the frank for letters of congratulations to individuals who had achieved some ‘‘personal distinction’’, but

retained authority for sending under the frank letters congratulating those who had achieved a ‘‘public distinction.’’

The Committee concluded that the recision of the authority to use the frank for congratulatory letters to

individuals who had achieved a ‘‘personal distinction’’ had not limited the right of Members to use ‘‘United

States Senate’’ letterhead for such mailings.

RULING:

Yes.

INTERPRETATIVE RULING NO.408

Date Issued: March 12, 1986

Applicable Area: Advisory Opinion on Use of Letterhead

QUESTION CONSIDERED:

Is the Advisory Opinion of the Select Committee, issued on August 14, 1978, regarding the use of letterhead and/

or envelopes which utilize the words ‘‘United States Senate’’ and ‘‘Official Business’’ or any combination thereof,

applicable to a Senator’s personal use of such letterhead which contains a solicitation of funds or support for a

campaign for election or reelection to any Federal, State or local office?

ADVISORY OPINION:

‘‘It is the opinion of the Select Committee that it is improper conduct which reflects upon the Senate for a

Senator to authorize or allow a non-Senate individual, group or organization to use the words ‘‘United States

Senate’’ and ‘‘Official Business’’ or any combination thereof, on any letterhead or envelope. The use of a

Senator’s name followed by the words, ‘‘United States Senate’’, is not hereby deemed improper.’’

FACTS:

In an invitation which was written on official Senate letterhead which includes the words ‘‘United States Senate,

Washington, D.C. 20510’’, a Senator invited individuals to a dinner which was directly connected to the raising of

funds for his campaign for reelection. The letter of invitation was prepared by the Senator himself and was sent

from his office.

DISCUSSION:

The Select Committee’s Advisory Opinion of August 14, 1978 on the use of the words ‘‘United States Senate’’

on letterhead and envelopes was prompted by the receipt of a substantial amount of correspondence from the

public concerning the use by non-Senate groups and organizations of facsimiles of United States Senate letterhead

in their fundraising appeals. Typically, prior to August 14, 1978, a Senator would agree to write a fundraising

letter on behalf of a non-Senate group or organization and allow that organization to include the Senator’s letter

in a fundraising appeal to be sent by that group or organization. In most instances, the Senator’s letter was

284 SENATE ETHICS MANUAL

written on a facsimile of official United States Senate letterhead and in many instances was mailed in envelopes

which bore the return address of the United States Senate. The concern expressed by the public was that they

were misled into believing that the mailing was from the Senator whose letterhead was used when, in fact, it was

really from a private group. As a result, the Committee developed an Advisory Opinion, pursuant to its authority

under S. Res. 110 and S. Res. 338, to issue Advisory Opinions on actions which might tend to reflect discredit

upon the Senate. The Advisory Opinion concluded that it was improper for a Member of the Senate to allow a

non-Senate organization or group to use letterhead or envelopes which contained the words ‘‘United States

Senate’’ and/or ‘‘Official Business’’. During the development of the Advisory Opinion concern was expressed by

some Members of the Committee that while the Advisory Opinion should restrict the use of Senate letterhead by

non-Senate groups or organizations, such as campaign committees, the Advisory Opinion should not preclude a

Senator’s personal use of his letterhead for whatever correspondence the Senator thought appropriate. As a result,

the Advisory Opinion included, as a last sentence, a proviso that ‘‘the use by a Senator of his or her own name

followed by the words ‘United States Senate’ is not hereby deemed improper.’’

Since the adoption of this Advisory Opinion, the Committee has been asked by Senators on several occasions

about the application of the Advisory Opinion to various types of mailings in which the Senator was interested. In

these Interpretative Rulings, the Committee has taken the position that while it is improper and a violation of the

Advisory Opinion for a Senator to allow a campaign committee or any other non-Senate organization to prepare a

mailing which uses letterhead that contains the words ‘‘United States Senate’’ on the masthead of the letter (see

Interpretative Ruling No. 169), the Advisory Opinion would not preclude a Member from writing a personal letter

on Senate letterhead from his own office (see Interpretative Ruling Nos. 270 and 365).

Because of a concern that the last sentence of the Advisory Opinion was being interpreted too broadly by

Members and staff, the Committee reviewed the previous interpretations of the application of the Advisory Opinion

and concluded that the Advisory Opinion does preclude a Senator from using letterhead and/or envelopes

containing the words ‘‘United States Senate’’ and/or ‘‘Official Business’’ or any combination thereof, for any

correspondence, even that prepared personally by the Senator, which solicits a financial contribution or other form

of assistance for any campaign for election or reelection to any Federal, State or local office. Where a Senator

desires to correspond with members of the public about a campaign-related matter, such correspondence should be

prepared on letterhead which has been paid for by the Senator’s personal funds or funds derived from his

campaign committee and which does not employ the words ‘‘United States Senate’’ and/or ‘‘Official Business’’.

RULING:

The Select Committee’s Advisory Opinion of August 14, 1978 on the use of official letterhead does apply to and

therefore restricts a Senator’s personal use of letterhead and/or envelopes which utilize the words ‘‘United States

Senate’’ and/or ‘‘Official Business’’ or any combination thereof, where the correspondence involves a request for a

financial contribution or other form of assistance for any campaign for election or reelection to any Federal, State

or local office. Additionally, this ruling would preclude the use of such official letterhead by a Senator to write

‘‘thank you’’ letters to contributors or campaign workers.

Lastly, through previous Interpretative Rulings, the Select Committee has approved the use of letterhead, by a

Senator, which uses the Senator’s name followed by ‘‘United States Senator’’. This latter form of letterhead could

be used to address correspondence which involved campaign-related topics including ‘‘thank you’’ notes for

participation in a campaign.

INTERPRETATIVE RULING NO. 410

Date Issued: April 3, 1986

Applicable Rules: 34 and 35

QUESTION CONSIDERED:

Under what circumstances may a Member, officer or employee of the Senate accept travel expenses for a speech

or appearance from an organization or entity which is affiliated in some way with the sponsoring organization?

FACTS:

A major domestic trade association was holding its annual meeting in San Francisco. The association invited a

Senator to address the annual meeting and offered to provide the Senator with round-trip air transportation

between his home state and San Francisco. In making the travel arrangements for the Senator, the trade

association asked one of its members, a company which was headquartered in the Senator’s state and which

owned its own corporate aircraft, to provide a seat to the Senator on the affiliate’s plane since that plane was

already taking company executives to the association’s annual meeting.

DISCUSSION:

In addressing the application of the ‘‘necessary expense’’ exception (Rule 35, paragraph 2) to these particular

APPENDIX A 285

facts, the Committee reviewed previous interpretations of the ‘‘necessary expense’’ exception, especially the scope

of Interpretative Ruling No. 41, dated July 1, 1977. Interpretative Ruling No. 41 directed that Senators, who had

been offered travel expenses for an appearance from an entity that is defined in Rule 35 as a ‘‘prohibited

source’’, could only accept travel reimbursements from the actual sponsor of the appearance. Under the terms of

that Ruling, if the travel reimbursement was to be provided by a ‘‘member of the group sponsoring the address’’,

rather than the sponsor itself, either the sponsor would have to reimburse the affiliated entity which offered to

provide the Senator’s transportation or the Senator would have to reimburse the affiliated entity directly.

The Committee’s review of Interpretative Ruling No. 41 and the legislative history surrounding Rule 35, as it

applies to the reimbursement of travel in connection with a Senator’s appearance on behalf of a sponsor, led the

Committee to the conclusion that Interpretative Ruling No. 41 was too narrowly drawn. In the Committee’s view,

the Rule 35 exception which allows Senators to accept travel reimbursements from the sponsor of an appearance,

even when that sponsor might be a ‘‘prohibited source’’ for other applications of Rule 35, extends as well to

groups which are formally affiliated with the sponsor of the Senator’s appearance and which offer travel

arrangements to the Senator on behalf of the sponsor. In that regard, the Committee agreed to several tests for

determining whether a group was sufficiently affiliated with the sponsor of a Senator’s appearance so as to allow

that Senator to accept travel arrangements from that group, within the confines of Rule 35. Where the sponsor of

a Senator’s appearance asks an affiliated group to provide travel arrangements to the Senator in connection with

that appearance, the tests for making such a determination are as follows: either (1) the group is a member in

good standing of the sponsoring organization, or (2) the directors, principal officers, or trustees of the group are

the directors, principal officers, or trustees of the sponsoring organization, or (3) there is a direct corporate and/or

financial relationship between the sponsoring organization and the group.

RULING:

Under Rule 35, a Member, officer, or employee of the Senate may accept necessary travel expenses in connection

with an appearance made by that individual, from a group or entity, which although it is itself not the sponsor of

the appearance, has been requested by the sponsor to provide the travel arrangements and is sufficiently affiliated

with the sponsor so as to allow the Senator or employee to accept the travel expenses within the confines of the

‘‘necessary expense’’ exception to Rule 35. A group or entity is sufficiently affiliated with a sponsor if either (1)

the group is a member in good standing of the sponsoring organization, or (2) the directors, principal officers, or

trustees of the group are the directors, principal officers, or trustees of the sponsoring organization, or (3) there is

a direct corporate and/or financial relationship between the sponsoring organization and the group.

INTERPRETATIVE RULING NO. 412

Date issued: August 11, 1986

Applicable Rules: 34, 35, and 38

QUESTION CONSIDERED:

For purposes of Senate Rules, what value is ascribed to the use of a private airplane?.

APPLICABLE SENATE RULES:

Gift Rule (Rule 35), Prohibition of Unofficial Office Accounts (Rule 38), Disclosure (Rule 34, Ethics in

Government Act).

DISCUSSION:

In some circumstances, a Member who uses a private airplane is required to reimburse the provider of the aircraft

to avoid either a prohibited gift under the Senate Gift Rule or a prohibited in-kind contribution to an unofficial

office account. Senate Rule 38 (Prohibition of Unofficial Office Accounts), generally prohibits private sources from

providing funds or services to defray a Member’s officially related expenses. Thus, if a .friend offers to loan a

Member an aircraft to attend town meetings across the Member’s home state, the Member must reimburse for the

use of the aircraft to comply with Rule 38. Senate Rule 35 (Gifts) prohibits Members from accepting from an

individual or organization with a direct interest in legislation, gifts aggregating over $100 in a calendar year. Thus,

if a lobbyist offers a Member the use of his airplane to fly the Member on a vacation trip, and if the value of

the use of the airplane is over $100, the member must provide reimbursement to comply with Rule 35.

In most circumstances, where reimbursement is not required, the Member will still need to determine the value of

the use of the aircraft because, if the value is $250 or more, the use of the aircraft must be disclosed on the

Member’s annual financial disclosure forms.

In determining the value of an item for both reimbursement and disclosure purposes, the Committee has

consistently stated that the applicable standard is the value of the item to the recipient. In the use of private

aircraft, the Committee concluded that the value to a Member would be the cost he would have to incur to

purchase the same level of service in the open market. The Committee felt that the level of service generally

286 SENATE ETHICS MANUAL

provided in using private aircraft is most nearly equivalent to first-class service provided by commercial carriers

where such commercial service is available. Where no regularly scheduled commercial service is available, to

obtain the same service provided by the use of a private aircraft, a Member would be required to charter an

airplane.

RULING:

The Committee has agreed on the following method for calculating the value of the use of an aircraft for both

reimbursement and disclosure:

1. If the cities between which the Member is flying have regularly scheduled air service, regardless of whether

such service is direct, then the value of the use of the aircraft is the cost of a first-class ticket from the point of

departure to the destination.

2. If the cities have regularly scheduled air service, but only a standard (coach) rate, then the value of the use of

the aircraft is the coach rate.

3. If either the city from which the Member flies or his destination does not have regularly scheduled air service,

then the value of the use of the aircraft is the cost of chartering the same or a similar aircraft for that flight.

The Committee notes that its ruling is generally consistent with Federal Election Commission regulations pertaining

to the use of private aircraft by candidates for Federal office.

The Committee further notes that the Committee on Rules and Administration has adopted travel regulations

pertaining to the level of reimbursement to be provided from official funds to Members who seek such

reimbursement for air transportation costs they have paid. Our ruling addresses only the reimbursement which

Members must make to the individual or organization whose aircraft he uses, not the level of reimbursement

Members may receive from official funds.

[NOTE: The current Senate Gifts Rule (35), lowered the value of a gift which may be accepted to $49.99, with

an annual aggregate limit of $99.99 per source.]

INTERPRETATIVE RULING NO. 413

Date Issued: September 22, 1986

Applicable Rule: 34

QUESTION CONSIDERED:

Are there any circumstances under which a candidate for nomination or election to the Senate, who has taken the

steps necessary under state law to withdraw his or her candidacy, may be excused from the obligation established

by the Ethics in Government Act, amended, to file a Public Financial Disclosure Statement?

DISCUSSION:

The Ethics in Government Act, amended, 2 U.S.C. 701 et seq., generally requires the filing of a Public Financial

Disclosure Statement by all candidates for nomination or election to the Senate.

The Act contains the following provisions concerning a candidate’s obligation to file Public Financial Disclosure

Reports. Under 2 U.S.C. section 707(9), ‘‘candidate’’ is defined as:

an individual, other than a Member, who seeks nomination for election, or election, to the Congress whether or

not such individual is elected, and for purposes of this paragraph, an individual shall be deemed to seek

nomination for election, or election, (A) if he has taken the action necessary under the law of a State to qualify

himself for nomination for election, or election or (B) if he or his principal campaign committee has taken action

to register or file campaign reports required by section 304(a) of the Federal Election Campaign Act of 1971 (2

U.S.C. 434(a)).

A candidate’s disclosure obligations are set forth in 2 U.S.C. section 701(d):

Within thirty days of becoming a candidate in a calendar year for any election to the office of Member, or on or

before May 15 of that calendar year, whichever is later, but in no event later then seven days prior to the

election, and on or before May 15 of each successive year the individual continues to be a candidate, an

individual shall file a report containing the information as described in section 702(b) of this title. Notwithstanding

the preceding sentence, in any calendar year in which an individual continues to be a candidate for any office but

all elections for such office relating to such candidacy were held in prior calendar years, such individual need not

file a report unless he becomes a candidate for another vacancy in that office or another office during that year.

The next section of the statute which applies to a candidate’s filing obligation is 2 U.S.C. section 701(f), which

provides that:

APPENDIX A 287

[r]easonable extensions of time for filing any report may be granted by the designated committee of the Senate

with respect to those filing with the Secretary . . . but in no event may the extension granted to a Member or

candidate result in a required report being filed later than seven days prior to an election involving the Member

or candidate. If the day on which a report is required to be filed falls on a weekend or holiday, the report may

be filed on the next business day.

In addressing the question posed above, the Select Committee sought the views of the Civil Division of the

Department of Justice, which is charged, by the Act, with responsibility of enforcing the Act. In the view of the

Department of Justice:

. . . an individual who meets the definition of ‘‘candidate’’ contained in section 707(9), but who does not comply

with the filing requirements of section 701(d), and does not obtain an extension as permitted by section 701(f),

has committed a prima facie violation of the Act. If, however, a candidate withdraws before his financial

disclosure is due, whether under the original or an extended deadline, that candidate would be excused from

compliance.

The Department of Justice has thus drawn a distinction between individuals who have become ‘‘candidates’’ under

section 707(9) of the Act, but who have not filed the requisite disclosure statement under section 701(d), on the

one hand, and those ‘‘candidates’’ who have requested and received an extension of time for filing the disclosure

report from the Select Committee, pursuant to the authority found at section 701(f) of the Act, on the other hand.

In the view of the Department of Justice:

The Act does not contain any exemption for individuals who have become ‘‘candidates’’ within the terms of

section 707(9), but taken steps necessary under state law to terminate their candidacy prior to the election.

This conclusion is based upon the fact that:

The legislative history of the Ethics in Government Act provides no basis for exempting candidates who, after

their filing deadline passes, withdraw prior to the election in which they intended to participate.

The Department bases its conclusion upon the understanding that it was the principal objective of the Congress, in

agreeing to the public financial disclosure requirement for candidates, as found in the Act:

. . . to place candidates ‘‘in the exact same position with respect to financial disclosure as an incumbent holder

of that office’’ (1978 U.S. Code Cong. & Ad. News 4216, 4238). If an incumbent is exposed to civil penalties

for failing to timely file, while a non-incumbent is able to avoid filing by the expedient of withdrawing from the

race immediately before the election, the legislative purpose of putting the two individuals on equal footing is

thwarted. The non-incumbent candidate will have both avoided providing the required information, and been able

to remain a candidate throughout the campaign period while not revealing his financial status to the electorate.

RULING:

There are two, and only two, circumstances under which a candidate for nomination or election to the Senate,

who has taken the steps necessary under state law, to withdraw his or her candidacy, will be excused from the

obligation to file a Public Financial Disclosure Statement: (1) where the candidate withdraws his candidacy before

his financial disclosure statement is due, under the deadline set forth at 2 U.S.C. section 701(d); or (2) where the

candidate withdraws his candidacy before the deadline established by an extension of time for filing granted by

the Select Committee, pursuant to 2 U.S.C. section 701(f).

INTERPRETATIVE RULING NO. 414

Date Issued: November 18, 1986

Applicable Rules: 34, 35

QUESTION CONSIDERED:

What is the application of Rule 34 (‘‘Public Financial Disclosure’’) and Rule 35 (‘‘Gifts’’) to the acceptance by a

Senator of a trophy which was presented because of the Senator’s winning an athletic contest?

FACTS:

A Member of the Senate was invited to participate in several different tennis tournaments. On one occasion, the

Senator participated in, and won, a tournament sponsored by a Washington, D.C. tennis facility. In the second

instance, a Senator participated in, and won, a celebrity tennis tournament sponsored by the Washington, D.C.

office of a major American corporation. In the latter instance, the corporate sponsor of the celebrity tennis

tournament would be described as a ‘‘prohibited source’’ for purposes of Rule 35 because the corporation

maintained both a political action committee registered with the Federal Election Commission, and retained

lobbyists who were registered under the 1946 Federal Regulation of Lobbying Act. In both instances the fair

market value of the trophy presented to the Senator was in excess of $100.

288 SENATE ETHICS MANUAL

DISCUSSION:

In 1980, the Select Committee considered a somewhat similar question posed by a Senator who asked about his

wife’s acceptance of an airplane ticket which had been awarded to her as a result of a ‘‘door-prize’’ drawing at a

charitable fund-raising event. In that instance, the Committee ruled that the prize was not covered by any rule of

the Senate Code of Official conduct, and that as a result, there was no prohibition or restriction on the Senator’s

spouse regarding the acceptance of the ‘‘door-prize’’. Applying this 1980 precedent to the facts presented above,

the Select Committee concluded that the Code of Official Conduct should not prohibit a Member, officer, or

employee of the Senate from accepting a trophy presented by the sponsor of an athletic event to the winner of

the athletic contest.

While the Committee determined that Rule 35 (‘‘Gifts’’) would not preclude the acceptance of such a trophy or

award, Rule 34 (‘‘Public Financial Disclosure’’) would require an individual who filed an annual public financial

disclosure statement under Rule 34 to disclose the acceptance of such a trophy where the fair market value of the

trophy was determined to be in excess of $100. The Select Committee, drawing upon the treatment of such

trophies and awards by the Internal Revenue Service, concluded that such a trophy should be disclosed in the

‘‘income’’ section of the individual’s public financial disclosure statement.

RULIING:

The acceptance or retention of a trophy or award presented to a Member, officer, or employee of the Senate by

the sponsor of an athletic contest in recognition of the Member, officer, or employee winning the competition is

outside the scope of Rule 35 (‘‘Gifts’’). However, Rule 34 (‘‘Public Financial Disclosure’’), would require the

disclosure of the acceptance of such a trophy or award in the ‘‘income’’ section of a reporting individual’s annual

public financial disclosure statement where the fair market value of the trophy or award was in excess of $100.

[Note: As of January 1, 1996, the Senate Gifts Rule provides that ‘‘prizes’’ (cash, or any other noncommemorative item of value) must be won in contests or drawings ‘‘open to the public’’ (see section 1(c)(10)).

Thus, the 1980 ruling referred to in this IR no longer applies unless the event in which the ‘‘prize‘‘ is won is

open to the public. Acceptance of a ‘‘trophy’’ or ‘‘plaque’’ won in a tournament, however, continues to be

acceptable under section 1(c)(20), which permits the acceptance of commemorative items. If the trophy or plaque

is valued at more than $200 (rather than the $100 amount in effect at the time of the IR), it’s acceptance must

be disclosed in the ‘‘income’’ section of the recipient’s annual financial disclosure report as required by the IR.]

INTERPRETATIVE RULING NO. 415

Date Issued: March 24, l987

Applicable Area: Franking

QUESTION CONSIDERED:

May a Member use the frank to mail, as a mass mailing, voter registration material printed by the local

jurisdictions where voting is to occur.

RULING:

Title 39, Section 32l0(a)(3)(H) of the United States Code specifically authorizes the use of the frank for ‘‘mail

matter which consists of voter registration or election information or assistance prepared and mailed in a nonpartisan manner.’’ Additionally, Section 32l0(f) authorizes the mass mailing of public service material, whether or

not prepared or printed with Congressionally appropriated funds, if the material to be mailed ‘‘is purely

instructional or informational in nature and . . . in content is frankable under this section.’’ However, Senate Rule

40 (Franking Privilege and Radio and Television Studios), Paragraph 2 provides:

‘‘A Senator shall use only official funds of the Senate, including his official Senate allowances, to purchase paper,

to print, or to prepare any mass mailing material which is to be sent out under the frank.’’

Because of the discontinuity between the Rule and the statute, the Committee has read narrowly the authorization

provided by section 32l0(f) for the use of the frank to mass mail public service material. It concluded, however,

that, since the franking of voter registration information is specifically authorized by section 32l0(a)(3)(H), such

information may be sent as a mass mailing notwithstanding Senate Rule 40.2.

INTERPRETATIVE RULING NO. 416

APPENDIX A 289

Date Issued: April 28, 1987

Applicable Area: Franking

QUESTION CONSIDERED:

May a Senator use franked return address cards to correct his or her media mailing list?

DISCUSSION:

Section 3210 of Title 39 of the United States Code authorizes the use of the frank for ‘‘official business‘‘

including ‘‘the conveying of information to the public.‘‘

Additionally, Chapter 1, paragraph 4(c) of the Senate Regulations Governing the Use of the Mailing Frank

provides that:

(c) The sending back of a return-addressed and franked piece of mail to a Senator, or an officer of the Senate,

by an addressee does not constitute a loan of the frank if the mail matter is frankable and if the return of the

frank remains under the Senator’s or officer’s control and is used solely to expedite the conduct of official Senate

business.

RULING:

Correcting a media mailing list in order to avoid delays in the release of information to the public would be

within the definition of ‘official business’ in section 3210. Furthermore, since the cards are pre-addressed so they

can only be used to reply to your office, the proposed use of such cards would not be a loan of the frank

prohibited by section 3215 of Title 39. Therefore return address cards may be used to correct a media mailing

list. However, the mass mailing of franked return address cards to correct a general mailing list would be

prohibited by Section 8 of the Committee’s Regulations Governing Mass Mail.

INTERPRETATIVE RULING NO. 417

Date Issued: July 30, 1987

Applicable Area: Franking

QUESTION CONSIDERED:

The franking statute (39 U.S.C. 3210 et. seq.) authorizes the franking of letters of congratulations to individuals

who have achieved some ‘‘public distinction.‘‘

Have students who have been awarded a Robert C. Byrd Honors Scholarship achieved a ‘‘public distinction‘‘ for

purposes of the Act?

FACTS:

The Robert C. Byrd Honors Scholarship Program was established by Public Law 99–498, as a federally-funded

state-run program to recognize exceptionally able secondary school students, by providing them with a scholarship

toward higher education expenses.

RULING:

The receipt of a Robert C. Byrd Honors Scholarship is a ‘‘public distinction‘‘ for which the franking statute

authorizes the use of the frank to convey congratulations to the recipient.

INTERPRETATIVE RULING NO. 420

Date Issued: October 8, 1987

Applicable Area: Franking

QUESTION CONSIDERED:

May a Senator include in town meeting notices or other frankable mailings a solicitation for in-kind donations to

local charities if the charities involved all receive Federal support for their programs.

290 SENATE ETHICS MANUAL

DISCUSSION:

‘‘The Regulations Governing the Use of the Mailing Frank‘‘ provides in paragraph 18 of Chapter 2 that ‘‘[N]o

solicitation of funds for purpose may be made under the franked mail privilege.‘‘ The Committee is agreed that

this restriction is also applicable to in-kind solicitations. There is no exception to this provision for charities that

have a Federal connection.

Although the Committee recognizes that certain charities are particularly important to each Senator’s state, the

Franking Regulations’ prohibition on solicitations contain no exceptions for such charities. Consequently,

solicitations on behalf of charities may not be included in a franked mailing.

INTERPRETATIVE RULING NO. 421

Date issued: October 16, 1987

Applicable Rules: 38 and 41

QUESTION CONSIDERED:

This ruling addresses four questions related to a Senator’s campaign committee furnishing a computer to a

Senator’s office for use in conducting official Senate duties.

FACTS:

A Senator’s principal campaign committee proposes to purchase a computer and provide it for use in performing

official duties. Also, either that committee would purchase a database from his party’s Senatorial Campaign

Committee and provide it for official use, or the Senatorial Committee would provide the database without charge.

The computer would be used to compile and update all of the Senator’s positions on legislation, press releases,

etc., and the information would be available to any interested party upon request.

DISCUSSION AND RULINGS:

(1) May a Senator’s principal campaign committee purchase a computer for use in performing the Senator’s

official duties?

The Committee has previously ruled that funds from a Senator’s principal campaign committee may be used to

defray official expenses (See, Interpretative Ruling No. 226) and this would apply to the computer purchase.

(2) May a database be provided by the Senator’s principal campaign committee (or either of the party Senatorial

Campaign Committees) for use in performing the Senator’s official duties, and may information in the database be

updated by his Senate staff for official use?

For purposes of applying the Senate Rules, the computer database does not appear to be distinguishable from the

computer itself, and Rule 38 would permit either of the listed committees to provide the database to the Senator

for his official use.

Once the computer and the database are available for official use, the database may be updated in the same

manner as other data files maintained for official use.

(3) May information available through use of the computer and the database be given to the campaign, and if so,

in what form and in what manner?

A Senator’s principal campaign committee stands on the same footing as any other outside organization, and

work-product produced by the computer and database should be treated no differently than any other work-product

produced by the Senator’s staff in performing official duties.

More particularly, in Interpretative Ruling 154 the Committee observed that:

As to the possibility of minimal involvement by a staff assistant with campaign-related business, the Select

Committee believes that in a Senator’s re-election campaign there might be some inadvertent and minimal overlap

between the duties of a Senator’s staff with respect to the Senator’s official duties and his re-election campaign.

However, a Senator has the responsibility to ensure that such an overlap is of a de minimus nature and that staff

duties do not conflict with campaign responsibilities.

We also note that a Senator must make the initial decision as to whether a staff member (or a Senate facility) is

becoming so involved in campaign-related activities that the involvement cannot be considered de minimus, and

that the Senator must exercise his best judgment on whether to remove such staff member from the Senate payroll

or restrict the non-official use of the facility. See, Interpretative Ruling No. 59. Finally, the Committee brings to

the reader’s attention the fact that the appropriations and false or fraudulent claims statutes do not contain an

express de minimus exception; and the Committee can express no opinion as to whether, or how, such a de

minimus standard might be applied by the Justice Department in administering those statutes. See, 31 USC 1301,

APPENDIX A 291

and 18 U.S.C. 286–7, 1001, and 1341.

(4) May the computer or the updated database be returned to the campaign committee if all the updating was

performed by Senate staff on their own time?

The Committee has previously ruled that office furniture and fixtures (which would include a computer) provided

for use in a Senator’s office by his principal campaign committee should be returned to the campaign committee

after its use in the Member’s office ended. See, Interpretative Ruling No. 289.

The situation regarding the updated database is to be distinguished, and the Committee concludes that, once

updated on equipment dedicated to official use in Federal building space maintained with Federal funds, the

enhanced and more valuable database may not be returned to the organization which provided the original diskets,

even though the updating was performed by off-duty staff. This would be improper as a misuse of Federal funds

for political purposes. (See Interpretative Ruling No. 280.)

INTERPRETATIVE RULING NO. 422

Date Issued: December 10, 1987

Applicable Rules: 34 and 35

QUESTION CONSIDERED

May a sponsor of an event use a plane which had been donated by an organization with a direct interest in

legislation to fly a senator to a seminar at which the Senator will speak. The Senator was not involved in

obtaining the plane.

DISCUSSION

The Senate Gifts Rule provides that no Member, officer, or employee of the Senate may accept gifts aggregating

over $100 in value from persons or organizations with a direct interest in legislation. The rule also provides that

‘‘gifts‘‘ do not include reimbursements for the necessary expenses of travel.

The Committee has previously ruled that a Senator or Senate employee may accept, as ‘‘necessary expenses’’,

only expenses provided by the sponsor of the event in which the Senator or employee is participating. Expenses

provided to a Senator by an individual or organization other than the sponsor of the event do not qualify for the

‘‘necessary expenses’’ exception. The Committee has also previously concluded that a Member may accept

reimbursement from the sponsor of an event notwithstanding the fact that the sponsor was receiving donations

from companies with a direct interest in legislation.

RULING

The Committee believes that where the sponsor of an event independently arranges for a third party to fly a

Senator to the event, the use of the plane should be treated as a necessary expense provided by the sponsor to

the Senator, rather than as a gift to the Senator from the third party.

Thus the Senator is not required to reimburse either the sponsor or the plane owner since the plane was provided

as a ‘‘necessary expense’’ from the sponsor as permitted by Rule 35 (Gifts). However, the Senator will need to

report that he received the travel expenses from the sponsor on his annual financial disclosure statement.

[NOTE: Rule 35, as amended effective January 1, 1996, prohibits a Member, officer, or employee of the Senate

from receiving any gift of a value of $50 or more, or gifts from one source (of $10 or more) that aggregate

$100 or more during a calendar year. Also the Gifts Rule states that a Member, officer, or employee may accept

necessary travel expenses from the sponsor of the event, as long as the sponsor is not a registered lobbyist or

foreign agent. For information on acceptance of travel expenses from an entity (not a lobbyist or a foreign

agent)affiliated with the sponsoring organization, see I.R. 410.]

INTERPRETATIVE RULING NO. 427

Date Issued: September 25, 1987

Applicable Area: Campaign Practices

QUESTION CONSIDERED:

May Senators offer membership in policy discussion groups or Senate services in return for campaign

contributions?

292 SENATE ETHICS MANUAL

DISCUSSION:

Senators must, as a matter of course, discuss policy and legislative issues with constituents, political supporters

and individuals and organizations with specific concerns and interests in legislation. Frequently such meetings will

include campaign contributors. However, offering campaign contributors access to those discussions in direct return

for campaign contributions creates the appearance that contributors receive special access to the Members, and

thereby exercise undue influence on the legislative process.

RULING:

While solicitations offering access to policy discussion groups may violate no law or Senate rule, they nonetheless

affect public confidence in the Senate. Therefore, Senators should not make solicitations which may create the

appearance that, because of a campaign contribution, a contributor will receive or is entitled to either special

treatment or special access to the Senator.

[NOTE: The Committee, in a Dear Colleague letter of September 25, 1987, emphasized that candidate fundraising

efforts that offered campaign contributors flags flown over the Capitol, or Gallery passes, or other special access

to Senate services or facilities, or items purchased with appropriated funds, tended to reflect discredit upon the

Senate and should be discontinued.]

INTERPRETATIVE RULING NO. 428

Date Issued: February 5, 1988

Applicable Rule: 38

QUESTION CONSIDERED:

How do the funding source limitations of Senate Rule 38 apply to sponsorship of constituent service seminars or

events which are carried out as part of a Senator’s official duties?

DISCUSSION:

Constituent service programs, such as seminars and conferences, are often sponsored by Senators or cosponsored

with other organizations, and the Committee has recognized the beneficial purposes served by such programs.

The following guidelines, pursuant to Senate Rule 38, apply to a Senator’s sponsorship of constituent service

seminars:

1. Expenses incurred in connection with such a seminar and the expenses of individuals providing services in

connection with the seminar may be paid with registration fees from seminar participants;

2. Expenses incurred by the Senator or his staff in connection with the seminar may not be paid or reimbursed

with funds contributed by private cosponsors;

3. If registration or participation fees are involved, joint sponsorship of the seminar is required, a cosponsor other

than the Senator’s office must handle the collection and distribution of funds connected with the seminar, and all

funds remaining after expenses have been paid should either be returned pro-rata to participants, or donated to

charity;

4. Each seminar is distinct, should not be associated with any other seminar or event, and no continuing fund or

account may exist in connection with such seminars;

5. No non-profit organization or foundation may be created by a Member to be funded with private contributions,

for the purpose of sponsoring constituent service seminars undertaken as part of a Member’s official duties.

INTERPRETATIVE RULING NO. 431

Date Issued: February 29, 1988

Applicable Rule: 37

QUESTION CONSIDERED:

Does Senate Rule 37.5 prohibit a Senate employee who earns over $25,000 from being registered with a real

estate broker in order to maintain her license to sell real estate if the employee provides no services to the broker

and receives no compensation?

APPENDIX A 293

FACTS:

The D.C. Real Estate Commission requires that applicants for a salesman’s license must establish an affiliation

with a registered broker. An application for a license must be signed by both the applicant and the broker. When

granted, the license must be displayed in the broker’s office. A Senate employee wishes to have her license held

by a broker in order to maintain her license. She will not provide any services for the broker.

RULING:

Senate Rule 37.5 prohibits Senate employees paid at a rate of over $25,000 a year from affiliating with a firm to

provide professional services. The Committee has previously ruled that this rule prohibits Senate employees from

affiliating with brokers for the purpose of selling real estate.

In Interpretative Rule 321, however, the Committee decided that an individual was not ‘‘affiliating’’ with a firm

when the person was not receiving monetary benefits from the firm, was not providing services for the firm, and

was not listed on the firm’s letterhead.

Since the employee in this case provided no services to the broker with whom she is registered and received no

benefits from that firm, she has not ‘‘affiliated with that firm to provide professional services.’’ Therefore she was

not in violation of Senate Rule 37.5. That provision would be violated, however, if the employee were to sell real

estate or perform any other professional services for the broker.

INTERPRETATIVE RULING NO. 432

Date Issued: April 20, 1988

Applicable Rule: 37

QUESTION CONSIDERED:

Are the post-employment lobbying restrictions of Rule 37.9 applicable to an individual who performed services for

a Senate Committee for more than 90 days if he or she was paid by a source other than the Secretary of the

Senate? Would it matter that the person did not sign an agreement to comply with the Senate Code of Conduct?

APPLICABLE RULES:

Rule 37.9 prohibits any individual who has served on the staff of a Member from lobbying that Member or the

staff of that Member for one year after leaving that staff. It also prohibits any individual who has served on the

staff of a Senate Committee from lobbying the Members or staff of that Committee for one year after leaving

that staff.

Rule 37.10 provides that for the purpose of Rule 37 ‘‘employee of the Senate’’ incudes an employee or individual

described in paragraph 2, 3 and 4(c) of Rule 41.

Rule 41.4(c) provides:

No Member, officer, or employee of the Senate shall utilize the full-time services of an individual for more than

ninety days in a calendar year in the conduct of official duties of any committee or office of the Senate

(including a Member’s office) unless such individual . . . agrees in writing to comply with the Senate Code of

Official Conduct in the same manner and to the same extent as an employee of the Senate.

RULING:

Since the definition of ‘‘employee of the Senate’’ includes anyone who provides full-time services to a Senate

Committee for more than 90 days in a calendar year, even if the person is not paid by the Secretary of the

Senate, a non-government employee who performed such services for more than 90 days in a calendar year,

would be subject to the post-employment lobbying restrictions of Senate Rule 37.9.

The fact that a person did not sign an agreement to comply with the Senate Code of Conduct as required by

Senate Rule 41.4(c) does not mean that the person was not a person described in Rule 41.4(c). Therefore, such a

person would still be subject to the post-employment lobbying restrictions in Rule 37.9. While on official trips,

such use would not in and of itself convert the membership into an impermissible in-kind contribution to an

unofficial office account. Where a gift is given to a Member or employee and may be used at that person’s

discretion, the fact that the individual later uses it in connection with his or her official duties does not convert a

personal gift to a contribution to a Senator’s office account. If on the other hand a gift were given for the

purpose of meeting official needs, or the nature of the gift or circumstances in which the gift was given made

such a purpose obvious, Rule 38 would apply. Neither the nature nor the circumstances of this gift implied that it

was for official purposes.

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INTERPRETATIVE RULING NO. 435

Date Issued: June 13, 1988

Applicable Rule: 34

QUESTION CONSIDERED:

How are bonuses treated for determining if an employee is required to file a Financial Disclosure Report?

APPLICABLE LAW :

Section 101 (b) of Title I of the Ethics in Government Act provides:

(b)(1) Any individual who is an officer or employee of the legislative branch described in subsection (e) [i.e. paid

at a rate equal to or in excess of GS–16] during any calendar year and performs the duties of his position or

office for a period in excess of sixty days in that calendar year shall file . . . [a financial disclosure report.]

FACTS:

An employee who was paid at a rate of $55,000 a year received a $5,000 bonus. The bonus was distributed to

him over a 75 day period so that during that 75 day period his paycheck reflected that he was being paid at a

rate of $75,000 a year, which is above the GS–16 rate ($63,135 for 1987). Another employee was paid at a rate

of $60,000 a year and received a $5,000 bonus. The bonus was distributed over a 90 day period so that for that

90 day period her paycheck reflected that she was being paid at a rate of $79,000 a year.

RULING:

The rate of pay for employees who receive bonuses for financial disclosure purposes, is determined by adding the

bonuses to their base rate of pay. Therefore, the first employee’s rate of pay was $60,000. Since the employee’s

rate of pay was below the GS–16 level he is not required to file a financial disclosure report. The employee’s

paycheck during the time that the bonus was distributed inaccurately reflected that he was being paid at above the

GS–16 level.

The second employee’s pay rate was $65,000 ($60,000 plus a $5,000 bonus). Since that employee’s rate of pay

exceeded the GS–16 level she must file. Although her paychecks for the period during which the bonus was

distributed inaccurately indicated that her rate of pay was $79,000 rather than $65,000, they did not inaccurately

reflect that she was being paid at above a GS–16 rate.

This analysis only applies to evaluating bonuses. Employees who receive ordinary pay raises to above the GS–16

level for over 60 days must file financial disclosure reports, regardless of their total pay for the year.

INTERPRETATIVE RULING NO. 437

Date Issued: December 15, 1987

Applicable Rule: 34 and 35

QUESTION CONSIDERED:

Should waivers to Rule 35 of the Standing Rules of the Senate and to Title I of the Ethics in Government Act

be provided for gifts received on the occasion of the birth of a child?

DISCUSSION:

The legislative history of the waiver provision of the Ethics in Government Act indicates that the waiver authority

was intended to be used ‘‘sparingly and infrequently’’ where there was clearly a personal relationship between the

donor and the recipient that would make disclosing the gift embarrassing. For example, in the legislative history

of Senate Rule 35 (Gifts), the sole example given of ‘‘an unusual case’’ for which a waiver would be appropriate

was one in which a Senate staffer received an ‘‘intimate gift’’ of an engagement ring from her fiance who had a

direct interest in legislation. Based on this legislative history, the Committee has generally limited the granting of

waivers of the Gifts Rule and the Ethics in Government Act to gifts given in connection with engagements and

weddings.

The Committee noted that granting waivers of both the Gifts and Disclosure Rules, thereby allowing individuals

with a direct interest in legislation to give Senators very expensive gifts without requiring those gifts to be

disclosed was inherently subject to abuse and one which should be avoided to the fullest extent possible. The

Committee decided not to expand the limited circumstances under which waivers of both Rules are granted beyond

APPENDIX A 295

those specifically contemplated in the legislative history.

RULING:

Although gifts to dependents do not usually need to be disclosed, the Committee concluded that gifts received

upon the birth of a child are in fact gifts to the parents and therefore subject to the disclosure requirements.

However, the Committee considers it appropriate to waive these requirements for gifts received from individuals

who do not have a direct interest in legislation or who are not foreign nationals representing a foreign government

or foreign organization.

Because the restrictions of the Gifts Rule remain applicable, gifts of over $100 in value, or gifts which would,

when aggregated with other gifts given by that source, exceed $100 in value during the calendar year, may not be

accepted from individuals with a direct interest in legislation, or foreign nationals representing a foreign

government or foreign organization.

[Note: The current Gifts Rule does not distinguish between individuals with a direct interest in legislation and

other individuals. However, under the old Gifts Rule lobbyists were deemed to be individuals with a direct interest

in legislation. Thus, it appears that, at least for any gift from a lobbyist where the parent (Member, officer, or

employee) has reason to believe that the gift is given because of the official position of the parent, the limitations

of the current Gifts Rule would apply. Therefore, in the absence of a Committee waiver, any such gift from a

lobbyist worth $50 or more would be prohibited unless the gift qualified as a gift from a personal friend, in

which case the value of the gift could be up to $250 without a waiver. Also, the Committee’s past policy, noted

in the IR, of granting a waiver for disclosure for wedding Gifts is no longer in effect. The Committee continues

to routinely grant a waiver of the Gifts Rule to permit the acceptance of wedding gifts, but now requires that

such wedding gifts be disclosed where the value exceeds $250, although the exact amount of such gifts need not

be stated in the disclosure.]

INTERPRETATIVE RULING NO. 438

Date Issued: July 16, 1990

Applicable Rule: 35

QUESTION PRESENTED:

Does the Ethics Reform Act of 1989 restrict Members, officers, or employees of the Senate from soliciting

campaign contributions and charitable contributions from individuals or organizations with a direct interest in

legislation?

The Ethics Reform Act of 1989 added Section 7353 to Title 5 of the United States Code. That Section provides

that ‘‘[e]xcept as permitted by subsection (b), no Member of Congress or officer or employee of the executive,

legislative, or judicial branches shall solicit or accept anything of value from a person—(1) seeking official action

from, doing business with, or . . . conducting activities regulated by the individual’s employing agency; or (2)

whose interests may be substantially affected by the performance or nonperformance of the individual’s official

duties.’’

Subsection (b) provides that ‘‘[e]ach supervising ethics office [the Senate Ethics Committee for the Senate] is

authorized to issue rules or regulations implementing the provisions of this section and providing for such

reasonable exceptions as may be appropriate.’’

RULING:

Senate Rule 35 allows for the acceptance of certain gifts from certain individuals; however, no Senate Rule,

including the Senate Gifts Rule, specifically provides for or authorizes the solicitation of anything of value from

someone who could be affected by the performance of one’s official duties. However, the legislative history of the

provision indicates that ‘‘[t]he prohibition on solicitation and acceptance of gifts in section 7353 applies only to

those gifts solicited by or given to a covered person. It does not apply to donations solicited by a Member of

Congress to be given to an entity such as a political campaign committee, whether or not it is the Member’s own

campaign committee.’’ Based on the legislative history, the Committee has concluded that 5 U.S.C. 7353 was

never intended to provide a broad new prohibition on solicitations. Notably, Section 7353 is entitled ‘‘Gifts To

Federal Employees’’ (emphasis added). Thus, the Committee concludes that the range of activity intended to be

proscribed by Section 7353 is only the solicitation and acceptance of gifts which were directly or indirectly for

the federal employee soliciting the gift. Since charitable contributions and campaign contributions do not come

within this general area, they are not covered by Section 7353’s prohibition on solicitation or acceptance of gifts.

Therefore, Senators and employees* may solicit gifts for charitable organizations and their campaigns without

violating Section 7353 or the Senate Gifts Rule.

*Restrictions on solicitations of campaign contributions by Senate employees are described in Senate Rule 41 and

rulings interpreting that Rule. Generally, only 3 employees on a Member’s personal staff may solicit, receive, act

as the custodian of or distribute campaign funds in connection with a Federal election.

296 SENATE ETHICS MANUAL

INTERPRETATIVE RULING NO. 439

Date Issued: June 18, 1990

Applicable Rule(s): 34 and 35

QUESTION PRESENTED:

Will the Committee grant waivers to the Senate Rules on Disclosure and Gifts for gifts from the person with

whom an employee has a significant, personal, dating relationship?

APPLICABLE RULES:

Senate Rule 35 provides:

‘‘(1) No Member, officer, or employee of the Senate, or the spouse or dependent thereof, shall knowingly accept,

directly or indirectly, any gift or gifts having an aggregate value exceeding $100 during a calendar year directly

or indirectly from any person, organization, or corporation having a direct interest in legislation before the

Congress or from any foreign national . . .’’

‘‘(2) No Member, officer, or employee of the Senate, or the spouse or dependent thereof, shall knowingly accept,

directly or indirectly, any gift or gifts having an aggregate value exceeding $300 during a calendar year from any

person, organization, or corporation . . . [other than a relative].’’

Section 102 (a)(2) of Senate Rule 34 (The Ethics in Government Act of 1978 (as amended)) provides that an

individual who is required to file a financial disclosure report must disclose ‘‘[t]he identity of the source, a brief

description, and the value of all gifts other than transportation, lodging, food, or entertainment aggregating $100 or

more in value received from any source other than a relative of the reporting individual during the preceding

calendar year’’ and ‘‘[t]he identity of the source and a brief description . . . of any gifts of transportation,

lodging, food, or entertainment aggregating $250 or more in value received from any source other than a relative

of the reporting individual during the preceding calendar year.’’

Both the Senate Gifts Rule and the Ethics in Government Act provide that, in an unusual case, the Senate Ethics

Committee has the authority to waive their restrictions and requirements.

DISCUSSION:

The legislative histories of the waiver provisions of both the Gifts Rule and the Ethics in Government Act

indicate that the waiver authority was intended to be used to allow the acceptance and non-disclosure of gifts of

an intimate nature given because of a close, personal relationship where the giving or acceptance of the gift could

not create an appearance of impropriety or a conflict of interest and the disclosure of the gift would be

embarrassing.

RULING:

The Committee believes that no conflict of interest, or the appearance thereof, is created when gifts are given

because of a significant, personal, dating relationship if the person giving the gift is not seeking official action

from the person receiving the gift or that person’s supervising Senator. Therefore, pursuant to the Committee’s

waiver authority under Senate Rule 35, the Committee has concluded that gifts in excess of the $100 or $300

limit, given under these circumstances, may be accepted. The Committee has also concluded that if the individual

giving the gift has a direct interest in legislation or is a foreign national, as described in Senate Rule 35, a

waiver is only appropriate if the acceptance of the gift has been disclosed in writing to the supervising Senator

and approved by that Senator.

The Committee also notes that Members, officers, and employees of the Senate may request waivers of the

disclosure rules of Senate Rule 34 and the Ethics in Government Act of 1978 (as amended).

The Committee will address any future requests for waivers of the disclosure rules on a case-by-case basis.

[NOTE: Rule 35, as amended, effective Janaury 1, 1996, prohibits a Member, officer, or employee of the Senate

from receiving any gift of a value of $50 or more, or gifts from one source (of $10 or more) that aggregate

$100 or more during a calendar year.]

INTERPRETATIVE RULING NO. 441

APPENDIX A 297

Date Issued: April 4, 1989

Applicable Area: Nepotism

QUESTION CONSIDERED:

May a Senator appoint an employee as staff director of a committee on which the employee’s spouse serves as a

professional staff member if the staff director recuses himself from any personnel actions affecting his spouse?

DISCUSSION:

The proposed action raises a question under 5 U.S.C. 3110, the anti-nepotism statute. The Select Committee on

Ethics is not charged with the responsibility of enforcing Section 3110 of Title 5 of the United States Code.

However, the Committee notes that the Act provides that a public official may not appoint, employ, promote,

advance, or advocate for appointment, employment, promotion, or advancement, in the agency in which he serves,

any individual who is a relative of the public official. The Act says nothing about a public official supervising a

relative.

RULING:

5 U.S.C. 3110 does not prohibit a Senate employee from being the supervisor of a relative as long as the

employee is not in any way involved in the decision to appoint, employ, or promote the relative and as long as

the employee recuses himself from any appointment, employment, promotion, or advancement decisions concerning

that relative.

INTERPRETATIVE RULING NO. 443

Date Issued: June 22, 1995

Applicable Rule: 38

QUESTION CONSIDERED:

How does Senate Rule 38 apply to the relationship between a Senate office and a non-Senate organization or

individual participating in the legislative process?

RULING:

Senate Rule 38 prohibits unofficial office accounts, that is, private supplementation of expenses incurred in

connection with the operation of a Member’s office and the activities of a committee as well. Thus, private

contributions of money or private, in-kind contributions of goods or services for official purposes are prohibited by

Senate Rule 38.

On the other hand, no Senate rule prohibits a Senator from seeking advice on legislative issues from individuals

or organizations outside the Senate. Nor does any Senate rule prohibit any individual or organization outside of

the Senate from voluntarily providing to a Senator or his or her staff research, memoranda, legislative language, or

draft report language for the Senator’s or staff’s consideration. The nature of the legislative process contemplates

and even encourages the free flow and exchange of ideas and information between interested individuals or

organizations and Senators and their staffs. Such exchanges are common and acceptable Senate practices.

As stated in Committee Interpretative Ruling 442 interpreting Rule 38, however, neither official nor officially

related expenses, goods, or services used in the operation of a Senator’s office may be provided or paid for by

private parties. This rule provides a broad prohibition on the use of private resources to do the work of a Senate

office. It does not, however, prohibit a Senate office from receiving from the public information, ideas, comments,

or proposals about legislative or other matters of public policy or interest being considered by the Senate. In

contrast, the rule would prohibit a Senate office from indirectly using the resources of private parties to do Senate

work by exercising direction and control over the activities of an outside individual or organization in an effort to

supplement office resources.

INTERPRETATIVE RULING NO. 444

Date issued: February 14, 2002

Applicable Rule: 38

QUESTION PRESENTED:

How may Senate offices comply with Rule 38 which incorporates the provisions of Section 311(d) of the

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Legislative Appropriations Act of 1991 as amended by the Legislative Branch Appropriations Act of 2002?

APPLICABLE RULE:

Section 311(d) of the FY1991 Legislative Branch Appropriations Act (the 1991 Act), adopted as Section 1(b) of

Rule 38, as amended by the FY2002 Legislative Branch Appropriations Act (the 2002 Act) provides that official

expenses for franked mail, employee salaries, office space, or equipment and any associated information technology

services (excluding handheld communications devices) may not be paid from excess campaign funds or

reimbursements provided by non-Senate sources.

2 U.S.C. 439a provides that excess campaign funds may be used ‘‘...to defray any ordinary and necessary

expenses incurred in connection with his or her duties as a holder of Federal office...’’

Section 1(a) of Rule 38 provides that expenses in connection with official duties may be paid from one of four

sources:

1) a Member’s personal funds,

2) appropriated funds,

3) excess campaign funds, or

4) reimbursements from private parties for which some service is performed (examples: fact-finding travel, or

expenses in connection with giving a speech).

DISCUSSION:

Prior to 1992, Rule 38 allowed Members to pay for expenses which were related to their official duties from

campaign funds provided by their principal campaign committees. It also allowed Members to accept

reimbursements from private parties when they participated in an event sponsored by that party. This system

allowed Members to engage in many worthwhile activities without such participation resulting in an expense to the

taxpayers. At the same time, the system provided for accountability by requiring that expenditures from campaign

funds and reimbursements accepted be publicly disclosed. This system functioned well from 1977 until 1992. From

1992 until now, Section 311(d) of the 1991 Act prohibited the use of campaign funds to pay official expenses,

and Interpretative Ruling 442 implemented this prohibition by dividing expenses related to official duties into two

distinct categories: official and officially related. Section 311(d) of the 1991 Act was amended by the 2002 Act so

that the categorization of expenses related to the performance of official duties is no longer needed. This will

permit the Senate to return to the expense payment system in effect prior to 1992, so far as it is consistent with

the amended statute.

RULING:

Based upon the amended Section 311(d), Interpretative Ruling 442 (issued 4/15/92) is hereby withdrawn.

Compliance with Senate Rule 38 will be governed by this ruling for expenses incurred in relation to official

duties on or after the date of this ruling.

General Principles

As amended by the 2002 Act, Section 311(d) of the 1991 Act, incorporated into section 1(b) of Senate Rule 38,

prohibits the use of excess principal campaign committee and other non-Senate funds to pay official expenses for

franked mail, employee salaries, office space, or equipment and any associated information technology services

(excluding handheld communications devices).

The restrictions of Senate Rule 38(1)(a) and (b) are applicable to individual Senators, Party Conferences, and

caucuses. Thus, individual Senators, Party Conferences, and caucuses may not accept financial or in-kind

contributions from third parties, except as allowed in Rule 38.

Expenses of Standing, Select, and Special Senate Committees are paid only from appropriated Senate funds.

The acceptance of in-kind goods and services is prohibited to the same extent that acceptance of funds to be used

to purchase goods or services is prohibited.

Wherever in this ruling funds of a principal campaign committee are permitted to be used to purchase an item,

then principal campaign committee funds must also be used to maintain, repair, operate, or use the item; and no

appropriated Senate funds may be used in the purchase, maintenance, repair, operation, or use of the item, nor

may appropriated Senate funds be used to repay or reimburse the campaign committee for the purchase,

maintenance, repair, operation or use of the item. Funds of a multi-candidate, party, or any campaign committee

other than a Senator’s principal campaign committee may not be used to pay an expense related to official duties.

Franking Expenses

Of particular concern when Section 311(d) was adopted in 1990 was the fact that Senators had been allowed to

APPENDIX A 299

supplement their franking allowance with campaign funds, something House Members were not allowed to do, so

the 1991 Act prohibited the supplementation of franking allowances from any source. Appropriations statutes and

Section 311(d) as amended by the 2002 Act, continue to prohibit a Senator from supplementing his or her official

Senate allowances for franked mail with funds from any source other than appropriated Senate funds. Pursuant to

Senate Resolution and Regulations of the Committee on Rules and Administration, all mass mailings under the

frank by Senate offices must be printed, prepared, and mailed by the Senate Service Department, and pursuant to

appropriations statutes mass mailing funds are limited (e.g. the FY2002 limit is up to $50,000 per year per

Senator’s office). See also, Related Matters, Official Mail, Other Than Mass Mailings, below.

Expenses for Senate Employees

Senate employees may be compensated only with appropriated Senate funds or the personal funds of a Senator.

The compensation of employees with personal funds may raise significant complications. For example, if an

employee is compensated in whole or in part from the personal funds of a Senator, the Senator is responsible for

complying with all laws, regulations, etc. with respect to such compensation, such as income tax and FICA

withholding, unemployment compensation insurance payments, and workman’s compensation. Additionally, such

employees are subject to Senate Rule 41.4 and the payments they receive must be reported pursuant to Senate

Rule 41.6. Further, any payment from the Senator’s personal funds which compensates an employee for performing

Senate duties is deemed to come from the Senate and must be counted in determining the applicability to the

employee of those provisions of the Senate Code of Official Conduct which apply to employees compensated at

or above certain rates of pay (e.g. Financial Disclosure (Rule 34) and two provisions of the Conflicts of Interest

Rule, 37.5 and 37.6). Benefits provided by the Senate, such as life insurance, health insurance, and retirement,

will be based on only the compensation paid by Senate funds. Campaign funds or other third party funds may not

be used to compensate Senate employees for the performance of official Senate duties. However, a Senate

employee may be paid by a campaign for campaign activity. Such campaign activity must be conducted on the

employee’s own time and without the use of Senate facilities or equipment.

Expenses for Office Space

Only appropriated Senate funds may be used to provide space for Senate offices.

Equipment Expenses

General Rule

With the limited exception of handheld communications devices and any associated information technology services

discussed below, equipment used in the performance of official duties may be purchased, leased, or otherwise

acquired or provided only with appropriated Senate funds. Therefore, no other source of funds may be used to

provide equipment used in the performance of official duties, and Members may not accept equipment or loans of

equipment from any third party, including any campaign.

Limited Exception

Prior to the 2002 Act’s amendment of Section 311(d), the 1991 Act prohibited a Senator from using equipment

purchased with campaign funds for any official activity. A Senator also has been (and continues to be) prohibited

by the appropriations statutes from using equipment purchased with appropriated Senate funds for any purpose

related to a campaign. Thus, a Senator seeking the convenience of a cellphone has suffered the paradoxical

inconvenience of sometimes having to carry duplicate if not triplicate cellphones (Senate, campaign, and personal

phones) to comply with the rules.

To address this problem, section 311(b) as amended by the 2002 Act, would permit handheld communications

devices and associated information technology services to be provided with funds other than appropriated Senate

funds. Likewise, Section 1(a)(1) and(3) of Senate Rule 38 permits expenses related to the performance of official

duties to be defrayed from funds of a Senator’s principal campaign committee. Thus, in concert the law and rule

now permit a Senator to use his or her principal campaign committee funds to purchase handheld communications

devices and associated information technology services, and use such devices for official and campaign purposes.

The purpose of the exception in the amended statute was to provide Senate Members and employees with the

convenience of using a single cellular telephone or personal digital assistant for multiple purposes (official and

campaign), at no cost to the taxpayer, without unduly intruding into the Senate’s role in providing equipment for

Senate duties. To come within the exception, the purchase, maintenance, repair, operation, and use of a multipurpose handheld device and its associated information technology service must be paid with funds of a Senator’s

principal campaign committee, and no appropriated Senate funds may be used for these purposes either directly or

to repay or reimburse the campaign committee.

A handheld communications device includes devices such as cellular telephones and handheld personal digital

assistants, but does not include laptop computers. An associated information technology service means the

communications network access service used by the device, whether such access is provided by land-line, satellite,

microwave, or other means.

Any handheld communications device and its associated information technology service provided with funds of a

Senator’s principal campaign committee and used by a Senate Member, officer, or employee in connection with

official duties will be deemed to have been dedicated exclusively to multi-purpose (i.e. official and campaign) use

pursuant to the authority of Section 311(d) and Senate Rule 38 and is subject to the following restrictions related

to its use:

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1) Under no circumstances may such a device be used in connection with any campaign activity while the device

is located in the Capitol or Senate space;

2) Under no circumstances may such a device be used to transfer data or information to any computer facility

outside the Senate in violation of Senate Rule 40 paragraph 5;

3) Under no circumstances may any Senate data or information which has been transferred to such a device be

used for any purpose other than official Senate duties; and, 4) A Senate Member or employee must maintain

personal control over such a device so that the device is not used by any non-Senate individual for campaign

purposes even if operated outside the Capitol and Senate space.

Senate Members and employees are reminded to exercise special care to avoid disclosure of confidential

information related to the performance of Senate duties, as such devices will operate outside the protective firewall

of the Senate Computer Center so that confidentiality and security are not insured.

A Senator’s personal funds may also be used to purchase, maintain, repair, and operate a handheld

communications device and its associated information technology service subject to the limitations and conditions

in this section.

As noted in the section on General Principles, expenses of Standing, Select, and Special Senate Committees are

paid only from appropriated Senate funds. Thus, the limited exception herein for handheld communications devices

and associated information technology services provided with funds of a Senator’s principal campaign committee or

a Senator’s personal funds would not be available to Committee staff. See, Related Matters, below, for a

discussion of Senate Employee ‘‘de minimis’’ Expenses.

Other Official Expenses

For expenses other than those enumerated in Section 311(d) as amended by the 2002 Act as discussed above, and

unless otherwise prohibited by law or by other applicable rules or regulations, if an expense is deemed by a

Senator to be related to official duties then the expense may be paid with either Senate funds, the Senator’s

personal funds, or excess funds of the Senator’s principal campaign committee. See, Senate Rule 38, paragraph

1(a)(1), (2), & (3).

Integrity of Accounts

There can be no supplementation of a Senator’s official personnel and office expense account. This account,

administered by the Financial Clerk of the Senate, may contain only those funds appropriated to the account by

the Senate.

At the discretion of a Senator, a separate operating account may be established by the Senator at a financial

institution for the receipt of funds from those sources enumerated in paragraph 1(a) of Senate Rule 38 as

authorized by this ruling, for use in or as reimbursement for paying an expense related to official duties. For

expenses authorized by this ruling, such enumerated sources may also directly pay the vendor for an expense

related to official duties. A lump-sum transfer of campaign funds to an operating account, and an itemization of

any expenses paid therewith, must be included on a Senator’s annual financial disclosure report. Use of campaign

funds for direct vendor payment, or for itemized reimbursement of the operating account for an expense payment,

would be disclosed at the Federal Election Commission and would not need to be disclosed a second time on a

Senator’s annual financial disclosure report. Under current practice, the Senate will not accept payment from a

campaign committee for goods or services provided through the Senate.

Where an expense related to official duties is permitted by this ruling to be paid with funds of a Senator’s

principal campaign committee, under no circumstances may appropriated Senate funds be used to repay or

reimburse the principal campaign committee for the expense.

Related Matters

Cosponsored Constituent Service Events

A Senator may participate in official constituent service events cosponsored with public or private entities from

outside the Senate, but must do so in compliance with other Senate Rules (e.g. Rule 40, paragraph 5), applicable

Committee rulings (e.g. Interpretative Ruling 428) and Regulations of the Committee on Rules and Administration.

As the name implies, a constituent service event must have as its purpose providing information or some other

service to constituents, and may not be simply a gathering of representatives of those sponsoring the event.

Moreover, a cosponsor should have a common core of interest with the Senator in the subject matter of the event

by virtue of the cosponsor’s routine business activities, should be able to participate in and attend the event, and

may not be a mere financial contributor.

Fact-finding Expenses

The 1991 Act was not intended to change the longstanding practice in both the House and the Senate of paying

certain expenses related to official duties from sources other than appropriated funds or the personal funds of a

Member. For example, both the House and the Senate historically allow third parties to reimburse for expenses

(such as travel expenses) in connection with services provided by a Member, officer or employee of the Congress

to that third party. Neither the House nor the Senate interpreted Section 311(d) of the 1991 Act to prohibit such

reimbursements and, to the contrary, such practice was expressly recognized and provided for in revisions to each

chamber’s Gifts Rule adopted after the 1991 Act. Such third party payment of expenses associated with fact

APPENDIX A 301

finding and similar activities by Senate Members, officers, or employees continues to be permitted by the 2002

Act amendment in accordance with Section 2 of the Senate Gifts Rule (35).

Government Entities

Under Senate Rule 38, Senators may accept limited donations from domestic state and local government entities to

defray official expenses if such donations are in compliance with the domestic government’s laws and regulations.

This provision of Senate Rule 38 permits state or local government entities to cooperate with a Senator in

carrying out a specific event or activity, but does not permit a government entity to make a continuing or

sustaining contribution to a Senator’s office. Government entities may not under any circumstances provide funds

or defray expenses for use of the mailing frank, employee salaries, office space, or equipment. A Federal

government employee may participate as a fellow in a Senator’s personal office or as a detailee to a Senate

committee, provided the requirements of other applicable rules and laws are met (e.g. for Committee detailees,

specific approval of the Senate Committee on Rules and Administration is required, see Senate Rule 41, paragraph

3; 18 U.S.C. 208; etc.).

Interns, Fellows, and Volunteers

Senators may continue to participate in intern, volunteer, and fellowship programs that are primarily of educational

benefit to the interns, volunteers or fellows.

The supervising Senator is responsible for determining if such a program is primarily for the educational benefit

of the intern, volunteer, or fellow. Interns, fellows, and volunteers may be provided with travel expenses, lodging,

or compensation from programs sponsored by private parties, provided that no conflict of interest arises in

violation of Senate rules (See Interpretative Ruling 385) and provided that the Senator does not solicit for such

programs and does not receive reports on who contributes to any program established by or for him. University

grants or stipends provided to academic interns or fellows, such as professors on sabbatical, are not considered to

be contributions to defray official expenses.

Where a participant is paid by or accepts expenses which are primarily funded by, a single company, individual

or industry, the participant may not work on issues related to the interest of the individual company or industry

providing such funding. The hiring of interns primarily for the benefit of, or primarily to provide assistance to, a

Senate office is an official program and all compensation of the interns must be paid only from appropriated

Senate funds or personal funds of the Senator.

Where voluntary (gratuitous) service is provided, an appropriate disclaimer must be on file with the Financial

Clerk of the Senate. Voluntary (gratuitous) service is service which is not compensated by anyone, and must be

primarily for the educational benefit of the volunteer.

Legal Expenses, as Amicus Curiae or as a Party

The Committee’s Legal Expense Trust Fund Regulations allow a Member, without having to establish a Trust

Fund, to accept pro bono legal services for the purpose of submitting amicus curiae briefs. A Member may not,

however, join as a party in a law suit in his or her official capacity unless he or she pays a pro rata share of

the legal expenses and costs. A Member, officer, or employee may accept either funds or pro bono legal services

as a contribution to a Legal Expense Trust Fund established pursuant to the Committee’s Legal Expense Trust

Fund Regulations for the payment of legal expenses relating to or arising by virtue of service in or to the Senate.

Senate Resolution 321, agreed to on October 3, 1996, also permits a Senator, without establishing a Legal

Expense Trust Fund, but with appropriate disclosure, to accept pro bono legal services with respect to a civil

action challenging the validity of a Federal statute that expressly authorized a Senator to file the action. See,

Senate Ethics Manual, Sept. 2000, App. H.

Additionally, Members, officers, or employees may pay legal expenses incurred in connection with their official

duties with funds of a Senator’s principal campaign committee, but only if such payment is approved by the

Ethics Committee.

Meeting Space and Refreshments

The use of privately owned space to meet with constituents is permitted, provided that the normal practice of the

owner is to make such space available to other persons for similar purposes on a similar and non-partisan basis.

Other than for refreshments of nominal value provided by constituent groups in attendance, third parties may not

pay for such refreshments at such meetings.

Motor Vehicles

A vehicle purchased, leased, or otherwise provided with a Senator’s principal campaign committee funds may be

used for campaign and official use. The maintenance, repair, operation, and use of the vehicle must be paid with

funds of the Senator’s principal campaign committee, and no appropriated Senate funds may be used to purchase,

maintain, repair, operate, or use the vehicle, or to repay or reimburse the campaign committee for such purchase,

maintenance, repair, operation, or use.

A vehicle provided by a principal campaign committee may be used for personal use only if the Senator uses

personal funds to pay the campaign for such use (see Rule 38.2), and such personal payment should be made on

a reasonable basis but must be made at least once each year by determining the proportion of the vehicle’s usage

attributable to personal use.

302 SENATE ETHICS MANUAL

Official Mail, Other Than Mass Mailings

Under no circumstances may a Senator’s personal funds or principal campaign committee funds, or third party

funds be used to supplement the franked mail allowance of a Senator. Pursuant to Senate Resolution and

Regulations of the Committee on Rules and Administration, all mass mailings under the frank by Senate offices

must be printed, prepared, and mailed by the Senate Service Department. Postage and other mail costs associated

with official non-franked mail may be paid with Senate funds, a Senator’s personal funds, or funds of the

Senator’s principal campaign committee.

For information relating to proper use of the mailing frank see

Chapter 7 of the Senate Ethics Manual, the Ethics Committee’s Regulations Governing The Use Of The Mailing

Frank, and Regulations Governing Official Mail adopted by the Committee on Rules and Administration. See also,

Franking Expenses, above.

Publications

Books, magazines, newspapers, and other publications, and subscriptions thereto, may be accepted from the author

or the publisher at the discretion of the Senator. However, a Senator may not accept a collection of materials,

such as a specialized reporting service or other collections for which updates or inserts are issued periodically.

Radio and Television Studio

Expenses related to programs produced in or transmitted from the Senate Radio and Television Studios in the

Capitol or the radio and television facilities operated by the Party Conferences may be paid: 1) as an official

expense with Senate funds, a Senator’s personal funds, or (through an operating account established by a Senator)

funds of a Senator’s principal campaign committee, if produced or transmitted in relation to official duties; 2) by

a licenced radio or television broadcaster, if produced or transmitted at the broadcaster’s request; 3) by a tax

exempt organization in the case of a public service announcement or other non-solicitation program, if produced or

transmitted at the request of such organization; or 4) by a corporate sponsor of a public interest program or other

non-commercial, non-promotional, and non-solicitation program, if produced or transmitted at the request of such

sponsor.

Senate Employee ‘‘de minimis’’ Expenses

A Senate employee may not pay an official expense, make advance purchases related to his or her performance of

official duties, or pay for travel expenses authorized by the Senate travel regulations, unless the employee is

repaid in full with funds from a source enumerated in paragraph 1(a) of Senate Rule 38 as authorized by this

ruling, except as noted in this paragraph. A Senate officer, or employee may make voluntary de minimis

expenditures related to the performance of official duties, such as: travel expenses in excess of maximum Senate

per diem; travel expenses beyond the time limits in paragraph 2 of Senate Rule 35 for approved travel sponsored

by a third party; handheld communications equipment and associated information technology services (subject to

the restrictions on use, maintenance, repair, and operation discussed above under Equipment Expenses); audio or

video equipment for personal use in the office; or local travel expenses. Any item provided on a de minimis basis

pursuant to this paragraph must be purchased, maintained, repaired, operated, and used with the Senate officer’s or

employee’s personal funds, and no appropriated Senate funds may be used for these purposes, either directly or to

repay or reimburse the officer or employee. Under no circumstances may a Senate Member, officer, or employee

as a term or condition of employment, directly or indirectly, ask, seek, demand, or require that a Senate employee

or prospective Senate employee volunteer or agree to volunteer to pay an expense related to the performance of

official duties.

Because a Senate employee is prohibited by criminal law from making a contribution (which includes an advance

payment) to his or her supervising Senator’s campaign, any employee contemplating an expenditure (typically

expenses associated with volunteer work) related to campaign activities should first consult applicable laws and

regulations of the Federal Election Commission (including, but not limited to 2 U.S.C. 431; 11 C. F. R. 116.5

(b)).

APPENDIX A 303

INDEX TO THE INTERPRETATIVE RULINGS

(CITATIONS ARE BY INTERPRETATIVE RULING NUMBER)

Accounts:

Defraying unreimbursed official expenses:

Through campaign funds, 88,206, 331,390,401,423,444.

Through other Congressional, Federal, or State funds, 195,196,198,255.

Official funds, use of:

Address lists, 44.

Conferences and seminars, jointly sponsored, 430.

Donations, 352.

Ten percent discretionary funds, 134,160,280.

In-kind contributions:

Mass mailings, 241.

Mailing lists, 44,66,280.

Publications and subscriptions, unsolicited donations, 251.

Travel expenses, 413.

Split salaries with another Senate office, 207.

Campaigns:

Compensated positions, 86,350,360,403.

Contributions:

From individuals and organizations:

With a direct interest in legislation, 440.

Improper solicitations, 429.

Of Member’s Senate property, 175,352.

Prohibited in-kind (see: Accounts).

Staff, 3,88,303.

Campaign activities:

Designated staff, 22,59,86,88,154,182,194,197,263,291,302,350,388,403.

On annual leave or after hours, 3,5,22,49,86,88,154,194,197,263,269,291,303,327,350,403,422.

Overlapping official duties, 154,423.

Senate campaigns (restrictions), 388.

State and local campaigns, 153,182,204,291.

To retire campaign debts, 182.

While temporarily terminated from Senate payroll, 194,263,269,350.

Funds used as personal loan, 406.

Funds used to defray unreimbursed official expenses (see: Accounts).

Staff in elected positions, 109,155.

Use of excess funds (see also: Accounts, Defraying unreimbursed official expenses).

Use of Member’s mailing lists, 319.

Candidates: (see: Disclosure; Facilities, use of; and Mass Mailings).

Charitable Foundations, fundraising for, 371.

Conference Pamphlets (see: Franking).

Conflict of Interest:

Affiliation with a firm, partnership, or corporation:

Former employer, 48,213,322,359,386.

Future employment, 381.

Law practice, 48,145,238,275,322.

Non-Senate hours or annual leave, 70,233,305.

Winding up practice, 345.

Professional services, definitions of, 93,257,339,353.

Real estate, 166,433.

Aiding the passage of legislation:

To further the pecuniary interest of immediate family (or enterprises

controlled by them) 63, 171.

304 SENATE ETHICS MANUAL

To further the pecuniary interest of a limited class of persons or enterprises (when a member of that limited

class), 36,63,343.

Consulting (see also: Outside Business or Professional Activity):

As outside Senate employment, 128,288,298,320,368.

Employed for use by Senate, 48,213.

Uncompensated, 386.

Divesture by Committee staff or Member, 142,147.

Elected positions, 109,155.

Exertion of improper influence, 340,343.

Intervention, 237.

Post employment lobbying, 218,238,275,397,434.

Professional activity, 227.

Serving on board of an outside organization:

Eligible for partial federal funding, 23.

Political organizations, 30,126,227,313,343,350,360.

Spouses, 337.

Uncompensated position and/or tax-exempt organization, 103,126,243,298,313,343,371.

With an interest in area of the employing committee, 54,97,103,227,309,313.

With no interest in area of the employing committee, 103,126,298,371.

Sole proprietors, 36.

Congressional Record (see: Franking).

Contributions (see: Accounts; Campaigns).

Creative Works (see: Outside Business or Professional Activity).

Disclosure:

Assets and Income:

Reportable items, 125,320,345,360,416.

Spousal, 337,398.

Bonuses, 437.

Filing requirements:

Candidates, 267,415.

Consultants, 61.

per diem, 224.

Members and staff, 275,322.

Gifts:

Reportable items, 31,251.

Valuation of, 201,328.

Positions, 243.

Reimbursements:

Exceptions to, 157.

Reportable items, 79,360,390.

Valuation of (use of private airplane), 414.

Trusts and estates, 312.

Waivers, 224,293,414,438,440.

Domestic Travel (see Travel).

Dual Compensation Act, 30,207,368.

Employees, Application of Code to:

Congressional Fellows, 434.

Consultants, 61.

On a per diem basis, 224,238.

Uncompensated, 386.

Interns, 111.

Paid by source other than government:

Private corporation or organization, 213,386.

Part-time:

While retaining full-time outside Senate employment, 339.

APPENDIX A 305

Volunteers, 386.

Facilities, Use of:

Campaign related, 24,423,429.

Computer storage:

Voter address records, 44,134.

Outside group’s mailing lists, 198,255,280.

Loan of Member’s mailing lists, 319.

Use of mailing lists for charitable fund raising, 347.

Federal property, 175.

Office space:

For charitable fund raising, 367.

Storage of campaign documents, 24.

Recording studios, 60 day moratorium:

Applicable to:

Primary (when nomination already received), 152.

Primary (when no ‘‘announced’’ opposition), 154.

Federal Election Law (see: Accounts, Defraying unreimbursed official expenses through campaign funds; Campaigns).

Foreign Gifts and Decorations Act (see: Travel).

Foreign Travel (see: Travel).

Franking (see also: Mass Mailing).

Biographical matters, 42.

Committee use, 141.

Conference pamphlets, 196,430.

Congratulation, letters of (Public Distinction):

Academic achievements, 396.

Enlisting or re-enlisting in Armed Forces, 296.

Recently naturalized citizens, 326.

Robert C. Byrd Scholarship, 419.

State or Federal appointed positions, 382.

Students receiving scholarships, 383.

Congressional Record reprints:

Application of:

Personal references limitation, 40

Direct response:

Application of 60 day moratorium, 149.

Autographed items and photographs, 112.

Biographical matters, 42.

State and local matters, 394.

To political or campaign related questions, 307.

To surveys, 149.

Express mail and other special services, 249.

Government officials, definition of, 117.

Inside mail, 366.

Loan of, 135,422.

For labeling purposes, 241.

Return-addressed mail, 418.

Photographs, 112.

Political material, 42,278,307.

Public service:

Voter registration material, 417.

Questionnaires, 149.

Solicitations, 422.

State and local matters, 394.

Use by surviving spouse, 378.

Furniture on Loan to Office (see also: Gifts), 387.K

306 SENATE ETHICS MANUAL

Gifts (see also: Travel).

Awards, 416.

Exceptions:

Artwork, 17.

Furniture and equipment, loan of, 17,387,423.

Home state products, 387.

Meals, beverages, and entertainment, 396.

Necessary expenses, 340.

Official or government hospitality, 143,167,216.

Personal hospitality, 76,162.

Significant, personal, or dating relationships, 441.

Spouse, provided to, 192,340.

From prohibited sources:

Necessary expenses, 214.

Personal hospitality, 76,162.

Season passes for sporting events, 31.

Travel, 58,143.

Reimbursements, 76.

Senator-Elect, 346.

Scope of rule, 94.

Valuation and aggregation:

Corporate air travel, 414, 424.

Lodging, 162.

Multiple donors, 201.

Products and services, 251.

Season passes, 31, 328.

Honoraria

Compensation for recurring services not deemed honoraria, 227.

Travel expenses, (see also: Travel).

Length of stay, 214.

Staff or spouse accompanying Member, 75.

Letterhead

Loan of, 169.

Used by:

Member Use of, 271,409.

Member on behalf of non-Senate organization, 270.

Member on behalf of charitable fundraiser, 366.

Member to congratulate a personal distinction, 408.

Lobbying

Post employment restrictions, 218,238,275,397.

Spousal employment, 337,398.

Mailing Lists

Correction of, 135,280,418.

Loan to outside group, 319.

Prohibited use of, 347.

Purchase of, 44,134,160,280.

Use of outside, 66,135,195,198,241,255.

Mass Mailing (see also: Franking).

Definitions of:

Candidate, 152,154.

Content, 74, 199,354.

Government official, 117.

Moratoriums:

Applicable to:

APPENDIX A 307

Candidacy in Presidential primaries, 314.

Committees, 141.

Nominations Conventions, 100,367.

Primaries when absent of challengers, 152.

Primaries with only ‘‘write-in’’ challengers, 154.

Calculation of effective date, 149.

Scope of ‘‘direct response’’ exception, 149.

Newsletters:

Personal reference, definition of, 236.

Members-Elect, 344,358.

Military, Senators and Staff (see: Conflict of Interest; Outside Business or Professional Activity).

Nepotism, 107,215,344,443.

Office Expenses (see: Accounts).

Outside Business or Professional Activity (see also: Conflict of Interest; Lobbying).

Annual leave, use of, 131,288,305, 358.

Board positions, 103,286,309,313,343.

Charitable, 366,371.

Consulting, 128,288,298,320,359,386,445.

Creative works, 56,128,339.

Federal Government, 30,207,368.

Future employment, 79,131,381.

Law practice, 48,70,97,145,233,238,275,305,322,345.

Military activities, 27.

Political positions:

Elected, 109,155,273.

Political committees, 291,350,360.

Political parties, 86,204,327.

State and local boards and commissions, 54,55,126,227,313.

Working for campaigns:

Federal, 303,388,404.

State and local, 153.

Prohibited, 97.

Professional services, scope of, 93,339.

Real Estate sales, 166.

Research, academic, 181.

Sole proprietors and business ventures, 36,257,353.

Spousal, 340,398.

Termination and new positions, 131,177.

$25,000/yr Senate compensation, 33.

Photographs (see: Franking).

Planes, Corporate and Private (see: Travel).

Political Fund Designees (see also: Campaigns).

As a consultant to state party organization, 86.

As a president of principal campaign committee, 350.

Compensation for services provided to campaign committees, 403.

Contributions, 302.

Fundraising events, 3,5,22,388.

Fundraising to retire campaign debts, 182.

Waivers from filing disclosure reports, 292.

Senatorial Influence (see: Conflict of Interest).

Speaking, Research, Writing (see: Outside Business or Professional Activity).

Spouses and Dependents, Application of Code to:

308 SENATE ETHICS MANUAL

Definition of relative (anti-nepotism statute), 344.

Disclosure, 312.

Employment, 398.

Gifts of travel, 192,340.

Holdings and divestiture, 147.

Positions on boards, 337.

Travel and/or lodging expenses:

Accompanying Member when making a speech or appearance, 124.

Travel

Necessary expenses exceptions:

Application to:

Staff accompanying Member, 75.

From a potential employer (job interview), 79.

Speaking engagements:

Length of travel, 214.

Lodging, 124.

Paid by:

Campaign funds, (see: Accounts; Campaigns).

Federal, State, or local government, 157.

Foreign government:

Foreign Gifts and Decorations Act, 140,216,407.

Mutual Educational and Cultural Exchange Act, 261.

Prohibited, 143,167,178.

Private or corporate aircraft:

Valuation of, for reimbursement or disclosure, 413.

Source other than a sponsor of an event, 89,411.

Spouse’s employer, 192,340.

Two different sources, 89.

Vice President, Application of Code to: 140.

Waivers, general

Code of Conduct, 224,292.

Financial disclosure, 415,439.

Post-employment lobbying, 238.

(309)

APPENDIX B

(310)

THE SENATE CODE

OF

OFFICIAL CONDUCT

SELECT COMMITTEE ON ETHICS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JULY 2002

SELECT COMMITTEE ON ETHICS

Harry Reid, Nevada, Chairman

Pat Roberts, Kansas, Vice Chairman

Daniel Akaka, Hawaii

Blanche Lincoln, Arkansas

George V. Voinovich, Ohio

Craig Thomas, Wyoming

Victor Baird, Staff Director and Chief Counsel

Annette Gillis, Chief Clerk

THE SENATE CODE OF OFFICIAL CONDUCT

(Rules 34 through 43 of the Standing Rules of the Senate)

(311)

CONTENTS

RULE 34

Public Financial Disclosure .................................................................................. 312

RULE 35

Gifts ........................................................................................................................ 314

RULE 36

Outside Earned Income ........................................................................................ 320

RULE 37

Conflict Of Interest ............................................................................................... 321

RULE 38

Prohibition of Unofficial Office Accounts ............................................................ 324

RULE 39

Foreign Travel ....................................................................................................... 325

RULE 40

Franking Privilege and Radio and Television Studios ....................................... 326

RULE 41

Political Fund Activity; Definitions ..................................................................... 328

RULE 42

Employment Practices .......................................................................................... 330

RULE 43

Constituent Service ............................................................................................... 331

APPENDIX A

Ethics in Government Act .................................................................................................. 332

TITLE I—FINANCIAL DISCLOSURE REQUIREMENTS OF FEDERAL

PERSONNEL ................................................................................................................... 332

312

RULE XXXIV

PUBLIC FINANCIAL DISCLOSURE

(Amended as follows pursuant to S. Res. 158, July 28, 1995 and S. Res. 198, December 7, 1995)

1. For purposes of this rule, the provisions of title I of the Ethics in Government Act of 1978

(Public law 95–521) shall be deemed to be a rule of the Senate as it pertains to Members, officers,

and employees of the Senate.

2. (a) The Select Committee on Ethics shall transmit a copy of each report filed with it under

title I of the Ethics in Government Act of 1978 (other than a report filed by a Member of Congress) to the head of the employing office of the individual filing the report.

(b) For purposes of this rule, the head of the employing office shall be-

(1) in the case of an employee of a Member, the Member by whom that person is employed;

(2) in the case of an employee of a Committee, the chairman and ranking minority member of such Committee;

(3) in the case of an employee on the leadership staff, the Member of the leadership on

whose staff such person serves and;

(4) in the case of any other employee of the legislative branch, the head of the office

in which such individual serves.

3. In addition to the requirements of paragraph 1, Members, officers, and employees of the

Senate shall include in each report filed under paragraph 1 the following additional information:

(a) For purposes of section 102(a)(1)(B) of the Ethics in Government Act of 1978 additional

categories of income as follows:

(1) greater than $1,000,000 but not more than $5,000,000, or

(2) greater than $5,000,000.

(b) For purposes of section 102(d)(1) of the Ethics in Government Act of 1978 additional

categories of value as follows:

(1) greater than $1,000,000 but not more than $5,000,000;

(2) greater than $5,000,000 but not more than $25,000,000;

(3) greater than $25,000,000 but not more than $50,000,000; and

(4) greater than $50,000,000.

(c) For purposes of this paragraph and section 102 of the Ethics in Government Act of 1978,

additional categories with amounts or values greater than $1,000,000 set forth in section

102(a)(1)(B) and 102(d)(1) shall apply to the income, assets, or liabilities of spouses and dependent children only if the income, assets, or liabilities are held jointly with a reporting individual.

All other income, assets, or liabilities of the spouse or dependent children required to be reported

under section 102 and this paragraph in an amount or value greater than $1,000,000 shall be categorized only as an amount or value greater than $1,000,000.

APPENDIX B 313

1This subsection applies with respect to reports filed under title I of the Ethics in Government Act of 1978 for

calendar year 1996 and thereafter.

4. 1 In addition to the requirements of paragraph 1, Members, officers, and employees of the

Senate shall include in each report filed under paragraph 1 an additional statement under section

102(a) of the Ethics in Government Act of 1978 listing the category of the total cash value of

any interest of the reporting individual in a qualified blind trust as provided in section 102(d)(1)

of the Ethics in Government Act of 1978, unless the trust instrument was executed prior to July

24, 1995 and precludes the beneficiary from receiving information on the total cash value of any

interest in the qualified blind trust.

Rule 34 is Title 1 of the Ethics in Government Act which can be found at Appendix A

of this publication.

314 SENATE ETHICS MANUAL

RULE XXXV

GIFTS

(Amended as follows pursuant to S. Res. 158, July 28, 1995 and S. Res. 198, December 7, 1995)

Rule XXXV of the Standing Rules of the Senate is amended to read as follows:

1. (a)(1) No Member, officer, or employee of the Senate shall knowingly accept a gift except

as provided in this rule.

(2) A Member, officer, or employee may accept a gift (other than cash or cash equivalent)

which the Member, officer, or employee reasonably and in good faith believes to have a value

of less than $50, and a cumulative value from one source during a calendar year of less than

$100. No gift with a value below $10 shall count toward the $100 annual limit. No formal recordkeeping is required by this paragraph, but a Member, officer, or employee shall make a good faith

effort to comply with this paragraph.

(b)(1) For the purpose of this rule, the term ‘‘gift’’ means any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. The term includes gifts

of services, training, transportation, lodging, and means, whether provided in kind, by purchase

of a ticket, payment in advance, or reimbursement after the expense has been incurred.

(2)(A) A gift to a family member of a Member, officer, or employee, or a gift to any other

individual based on that individual’s relationship with the Member, officer, or employee, shall be

considered a gift to the Member, officer, or employee if it is given with the knowledge and acquiescence of the Member, officer, or employee and the Member, officer, or employee has reason

to believe the gift was given because of the official position of the Member, officer, or employee.

(B) If food or refreshment is provided at the same time and place to both a Member, officer,

or employee and the spouse or dependent thereof, only the food or refreshment provided to the

Member, officer, or employee shall be treated as a gift for purposes of this rule.

(c) The restrictions in subparagraph (a) shall not apply to the following:

1) Anything for which the Member, officer, or employee pays the market value, or does

not use and promptly returns to the donor.

(2) A contribution, as defined in the Federal Election Campaign Act of 1971 (2 U.S.C.

431 et seq.) that is lawfully made under that Act, or attendance at a fundraising event sponsored by a political organization described in section 527(e) of the Internal Revenue Code

of 1986.

(3) A gift from a relative as described in section 109(16) of title I of the Ethics Reform

Act of 1989 (5 U.S.C. App. 6).

(4)(A) Anything, including personal hospitality, provided by an individual on the basis

of a personal friendship unless the Member, officer, or employee has reason to believe that,

under the circumstances, the gift was provided because of the official position of the Member,

officer, or employee and not because of the personal friendship.

(B) In determining whether a gift is provided on the basis of personal friendship, the

Member, officer, or employee shall consider the circumstances under which the gift was offered, such as:

(i) The history of the relationship between the individual giving the gift and the recipient

of the gift, including any previous exchange of gifts between such individuals.

(ii) Whether to the actual knowledge of the Member, officer, or employee the individual

who gave the gift personally paid for the gift or sought a tax deduction or business reimbursement for the gift.

APPENDIX B 315

(iii) Whether to the actual knowledge of the Member, officer, or employee the individual

who gave the gift also at the same time gave the same or similar gifts to other Members,

officers, or employees.

(5) A contribution or other payment to a legal expense fund established for the benefit

of a Member, officer, or employee, that is otherwise lawfully made, subject to the disclosure

requirements of the Select Committee on Ethics, except as provided in paragraph 3(c).

(6) Any gift from another Member, officer, or employee of the Senate or the House of

Representatives.

(7) Food, refreshments, lodging, and other benefits-

(A) resulting from the outside business or employment activities (or other outside activities that are not connected to the duties of the Member, officer, or employee as an officeholder) of the Member, officer, or employee or the spouse of the Member, officer, or employee, if such benefits have not been offered or enhanced because of the official position

of the Member, officer, or employee and are customarily provided to others in similar circumstances;

(B) customarily provided by a prospective employer in connection with bona fide employment discussions; or

(C) provided by a political organization described in section 527(e) of the Internal Revenue Code of 1986 in connection with a fundraising or campaign event sponsored by such

an organization.

(8) Pension and other benefits resulting from continued participation in an employee welfare

and benefits plan maintained by a former employer.

(9) Informational materials that are sent to the office of the Member, officer, or employee

in the form of books, articles, periodicals, other written materials, audiotapes, videotapes, or other

forms of communication.

(10) Awards or prizes which are given to competitors in contests or events open to the public,

including random drawings.

(11) Honorary degrees (and associated travel, food, refreshments, and entertainment) and other

bona fide, nonmonetary awards presented in recognition of public service (and associated food,

refreshments, and entertainment provided in the presentation of such degrees and awards).

(12) Donations of products from the State that the Member represents that are intended primarily for promotional purposes, such as display or free distribution, and are of minimal value

to any individual recipient.

(13) Training (including food and refreshments furnished to all attendees as an integral part

of the training) provided to a Member, officer, or employer, if such training is in the interest of

the Senate.

(14) Bequests, inheritances, and other transfers at death.

(15) Any item, the receipt of which is authorized by the Foreign Gifts and Decorations Act,

the Mutual Educational and Cultural Exchange Act, or any other statute.

(16) Anything which is paid for by the Federal Government, by a State or local government,

or secured by the Government under a Government contract.

(17) A gift of personal hospitality (as defined in section 109(14) of the Ethics in Government

Act) of an individual other than a registered lobbyist or agent of a foreign principal.

(18) Free attendance at a widely attended event permitted pursuant to subparagraph (d).

(19) Opportunities and benefits which areVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00329 Fmt 5222 Sfmt 5222 SMANUAL.011 ETHICS1 PsN: ETHICS1
316 SENATE ETHICS MANUAL

(A) available to the public or to a class consisting of all Federal employees, whether or

not restricted on the basis of geographic consideration;

(B) offered to members of a group or class in which membership is unrelated to congressional employment;

(C) offered to members of an organization, such as an employees’ association or congressional credit union, in which membership is related to congressional employment and similar

opportunities are available to large segments of the public through organizations of similar

size;

(D) offered to any group or class that is not defined in a manner that specifically discriminates among Government employees on the basis of branch of Government or type of responsibility, or on a basis that favors those of higher rank or rate of pay;

(E) in the form of loans from banks and other financial institutions on terms generally

available to the public; or

(F) in the form of reduced membership or other fees for participation in organization activities offered to all Government employees by professional organizations if the only restrictions on membership relate to professional qualifications.

(20) A plaque, trophy, or other item that is substantially commemorative in nature and which

is intended solely for presentation.

(21) Anything for which, in an unusual case, a waiver is granted by the Select Committee

on Ethics.

(22) Food or refreshments of a nominal value offered other than as a part of a meal.

(23) An item of little intrinsic value such as a greeting card, baseball cap, or a T-shirt.

(d)(1) A Member, officer, or employee may accept an offer of free attendance at a widely

attended convention, conference, symposium, forum, panel discussion, dinner, viewing, reception,

or similar event, provided by the sponsor of the event, if-

(A) the Member, officer, or employee participates in the event as a speaker or a panel

participant, by presenting information related to Congress or matters before Congress, or by

performing a ceremonial function appropriate to the Member’s, officer’s, or employee’s official position; or

(B) attendance at the event is appropriate to the performance of the official duties or representative function of the Member, officer, or employee.

(2) A Member, officer, or employee who attends an event described in clause (1) may accept

a sponsor’s unsolicited offer of free attendance at the event for an accompanying individual if others in attendance will generally be similarly accompanied or if such attendance is appropriate to

assist in the representation of the Senate.

(3) A Member, officer, or employee, or the spouse or dependent thereof, may accept a sponsor’s unsolicited offer of free attendance at a charity event, except that reimbursement for transportation and lodging may not be accepted in connection with an event that does not meet the standards provided in paragraph 2.

(4) For purposes of this paragraph, the term ‘‘free attendance’’ may include waiver of all or

part of a conference or other fee, the provision of local transportation, or the provision of food,

refreshments, entertainment, and instructional materials furnished to all attendees as an integral part

of the event. The term does not include entertainment collateral to the event, nor does it include

food or refreshments taken other than in a group setting with all or substantially all other

attendees.

APPENDIX B 317

(e) No Member, officer, or employee may accept a gift the value of which exceeds $250 on

the basis of the personal friendship exception in subparagraph (c)(4) unless the Select Committee

on Ethics issues a written determination that such exception applies. No determination under this

subparagraph is required for gifts given on the basis of the family relationship exception.

(f) When it is not practicable to return a tangible item because it is perishable, the item may,

at the discretion of the recipient, be given to an appropriate charity or destroyed.

2. (a)(1) A reimbursement (including payment in kind) to a Member, officer, or employee

from an individual other than a registered lobbyist or agent of a foreign principal for necessary

transportation, lodging and related expenses for travel to a meeting, speaking engagement, factfinding trip or similar event in connection with the duties of the Member, officer, or employee

as an officeholder shall be deemed to be a reimbursement to the Senate and not a gift prohibited

by this rule, if the Member, officer, or employee-

(A) in the case of an employee, receives advance authorization, from the Member or officer under whose direct supervision the employee works, to accept reimbursement, and

(B) discloses the expenses reimbursed or to be reimbursed and the authorization to the

Secretary of the Senate within 30 days after the travel is completed.

(2) For purposes of clause (1), events, the activities of which are substantially recreational

in nature, shall not be considered to be in connection with the duties of a Member, officer, or

employee as an officeholder.

(b) Each advance authorization to accept reimbursement shall be signed by the Member or

officer under whose direct supervision the employee works and shall include-

(1) the name of the employee;

(2) the name of the person who will make the reimbursement;

(3) the time, place, and purpose of the travel; and

(4) a determination that the travel is in connection with the duties of the employee as

an officeholder and would not create the appearance that the employee is using public office

for private gain.

(c) Each disclosure made under subparagraph (a)(1) of expenses reimbursed or to be reimbursed shall be signed by the Member or officer (in the case of travel by that Member or officer)

or by the Member or officer under whose direct supervision the employee works (in the case of

travel by an employee) and shall include-

(1) a good faith estimate of total transportation expenses reimbursed or to be reimbursed;

(2) a good faith estimate of total lodging expenses reimbursed or to be reimbursed;

(3) a good faith estimate of total meal expenses reimbursed or to be reimbursed;

(4) a good faith estimate of the total of other expenses reimbursed or to be reimbursed;

(5) a determination that all such expenses are necessary transportation, lodging, and related expenses as defined in this paragraph; and

(6) in the case of a reimbursement to a Member or officer, a determination that the travel

was in connection with the duties of the Member or officer as an officeholder and would not

create the appearance that the Member or officer is using public office for private gain.

(d) For the purposes of this paragraph, the term ‘‘necessary transportation, lodging, and related

expenses’’-

(1) includes reasonable expenses that are necessary for travel for a period not exceeding 3

days exclusive of travel time within the United States or 7 days exclusive of travel time outside

of the United States unless approved in advance by the Select Committee on Ethics;

318 SENATE ETHICS MANUAL

(2) is limited to reasonable expenditures for transportation, lodging, conference fees and materials, and food and refreshments, including reimbursement for necessary transportation, whether or

not such transportation occurs within the periods described in clause (1);

(3) does not include expenditures for recreational activities, nor does it include entertainment

other than that provided to all attendees as an integral part of the event, except for activities or

entertainment otherwise permissible under this rule; and

(4) may include travel expenses incurred on behalf of either the spouse or a child of the Member, officer, or employee, subject to a determination signed by the Member or officer (or in the

case of an employee, the Member or officer under whose direct supervision the employee works)

that the attendance of the spouse or child is appropriate to assist in the representation of the Senate.

(e) The Secretary of the Senate shall make available to the public all advance authorizations

and disclosures of reimbursement filed pursuant to subparagraph (a) as soon as possible after they

are received.

3. A gift prohibited by paragraph 1(a) includes the following:

(a) Anything provided by a registered lobbyist or an agent of a foreign principal to an entity

that is maintained or controlled by a Member, officer, or employee.

(b) A charitable contribution (as defined in section 170(c) of the Internal Revenue Code of

1986) made by a registered lobbyist or an agent of a foreign principal on the basis of a designation, recommendation, or other specification of a Member, officer, or employee (not including a

mass mailing or other solicitation directed to a broad category of persons or entities), other than

a charitable contribution permitted by paragraph 4.

(c) A contribution or other payment by a registered lobbyist or an agent of a foreign principal

to a legal expense fund established for the benefit of a Member, officer, or employee.

(d) A financial contribution or expenditure made by a registered lobbyist or an agent of a

foreign principal relating to a conference, retreat, or similar event, sponsored by or affiliated with

an official congressional organization, for or on behalf of Members, officers, or employees.

4. (a) A charitable contribution (as defined in section 170(c) of the Internal Revenue Code

of 1986) made by a registered lobbyist or an agent of a foreign principal in lieu of an honorarium

to a Member, officer, or employee shall not be considered a gift under this rule if it is reported

as provided in subparagraph (b).

(b) A Member, officer, or employee who designates or recommends a contribution to a charitable organization in lieu of honoraria described in subparagraph (a) shall report within 30 days

after such designation or recommendation to the Secretary of the Senate-

(1) the name and address of the registered lobbyist who is making the contribution in lieu

of honoraria;

(2) the date and amount of the contribution; and

(3) the name and address of the charitable organization designated or recommended by the

Member.

The Secretary of the Senate shall make public information received pursuant to this subparagraph as soon as possible after it is received.

5. For purposes of this rule-

(a) the term ‘‘registered lobbyist’’ means a lobbyist registered under the Federal Regulation

of Lobbying Act or any successor statute; and

(b) the term ‘‘agent of a foreign principal’’ means an agent of a foreign principal registered

under the Foreign Agents Registration Act.

APPENDIX B 319

6. All the provisions of this rule shall be interpreted and enforced solely by the Select Committee on Ethics. The Select Committee on Ethics is authorized to issue guidance on any matter

contained in this rule.

320 SENATE ETHICS MANUAL

RULE XXXVI

OUTSIDE EARNED INCOME

(Pursuant to S. Res. 192, 10/31/91 and P.L. 102–90: Effective date, 8/14/91; as amended by P.L.

102–378)

For purposes of this rule, the provisions of section 501 of the Ethics in Government Act of

1978 (5 U.S.C. App. 7 501) shall be deemed to be a rule of the Senate as it pertains to Members,

officers, and employees of the Senate.

(b) Section 501 of the Ethics in Government Act of 1978 provides as follows:

‘‘SEC. 501. OUTSIDE EARNED INCOME LIMITATION

‘‘(a) Outside Earned Income Limitations.—(1) Except as provided by paragraph (2), a Member or an officer or employee who is a noncareer officer or employee and who occupies a position

classified above GS–15 of the General Schedule or, in the case of positions not under the General

Schedule, for which the rate of basic pay is equal to or greater than 120 percent of the minimum

rate of basic pay payable for GS–15 of the General Schedule, may not in any calendar year have

outside earned income attributable to such calendar year which exceeds 15 percent of the annual

rate of basic pay for level II of the Executive Schedule under section 5313 of title 5, United States

Code, as of January 1 of such calendar year.

‘‘(2) In the case of any individual who during a calendar year becomes a Member or an officer or employee who is a noncareer officer or employee and who occupies a position classified

above GS–15 of the General Schedule or, in the case of positions not under the General Schedule,

for which the rate of basic pay is equal to or greater than 120 percent of the minimum rate of

basic pay payable for GS–15 of the General Schedule, such individual may not have outside

earned income attributable to the portion of that calendar year which occurs after such individual

becomes a Member or such an officer or employee which exceeds 15 percent of the annual rate

of basic pay for level II of the Executive Schedule under section 5313 of title 5, United States

Code, as of January 1 of such calendar year multiplied by a fraction the numerator of which is

the number of days such individual is a Member or such officer or employee during such calendar

year and the denominator of which is 365.

‘‘(b) Honoraria Prohibition.—An individual may not receive any honorarium while that individual is a Member, officer or employee.

‘‘(c) Treatment of Charitable Contributions.—Any honorarium which, except for subsection

(b), might be paid to a Member, officer, or employee, but which is paid instead on behalf of such

Member, officer or employee to a charitable organization, shall be deemed not to be received by

such Member, officer or employee. No such payment shall exceed $2,000 or be made to a

charitableorganization from which such individual or a parent, sibling, spouse, child, or dependent

relative of such individual derives any financial benefit.

‘‘[Sec. 505(3) of such Act defines honorarium as follows:

‘‘[(3) The term ‘honorarium’ means a payment of money or anything of value for an appearance, speech or article [(including a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official duties or the payment is made because of the

individual’s status with the Government) parenthetical effective January 1, 1992] by a Member,

officer or employee, excluding any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other

person, and the amount otherwise determined shall be reduced by the amount of any such expenses

to the extent that such expenses are not paid or reimbursed.]’’

APPENDIX B 321

RULE XXXVII

CONFLICT OF INTEREST

(As amended by Leg. Appr. Act pursuant to S. Res. 192, 10/31/91: Effective date, 8/14/91)

1. A Member, officer, or employee of the Senate shall not receive any compensation, nor shall

he permit any compensation to accrue to his beneficial interest from any source, the receipt or

accrual of which would occur by virtue of influence improperly exerted from his position as a

Member, officer, or employee.

2. No Member, officer, or employee shall engage in any outside business or professional activity or employment for compensation which is inconsistent or in conflict with the conscientious

performance of official duties.

3. No officer or employee shall engage in any outside business or professional activity or employment for compensation unless he has reported in writing when such activity or employment

commences and on May 15 of each year thereafter so long as such activity or employment continues, the nature of such activity or employment to his supervisor. The supervisor shall then, in

the discharge of his duties, take such action as he considers necessary for the avoidance of conflict

of interest or interference with duties to the Senate.

4. No Member, officer, or employee shall knowingly use his official position to introduce or

aid the progress or passage of legislation, a principal purpose of which is to further only his pecuniary interest, only the pecuniary interest of his immediate family, or only the pecuniary interest

of a limited class of persons or enterprises, when he, or his immediate family, or enterprises controlled by them, are members of the affected class.

5. (a) No Member, officer, or employee of the Senate compensated at a rate in excess of

$25,000 per annum and employed for more than ninety days in a calendar year shall (1) affiliate

with a firm, partnership, association, or corporation for the purpose of providing professional services for compensation; (2) permit that individual’s name to be used by such a firm, partnership,

association or corporation; or (3) practice a profession for compensation to any extent during regular office hours of the Senate office in which employed. For the purposes of this paragraph, ‘‘professional services’’ shall include but not be limited to those which involve a fiduciary relationship.

(b) A Member or an officer or employee whose rate of basic pay is equal to or greater than

120 percent of the a annual rate of basic pay in effect for grade GS–15 of the General Schedule

shall not-

(1) receive compensation for affiliating with or being employed by a firm, partnership, association, corporation, or other entity which provides professional service involving a fiduciary relationship;

(2) permit that Member’s, officer’s, or employee’s name to be used by any such firm, partnership, association, corporation, or other entity;

(3) receive compensation for practicing a profession which involves a fiduciary relationship;

or

(4) receive compensation for teaching, without the prior notification and approval of the Committee on Ethics.

6. (a) No Member, officer, or employee of the Senate compensated at a rate in excess of

$25,000 per annum and employed for more than ninety days in a calendar year shall serve as

an officer or member of the board of any publicly held or publicly regulated corporation, financial

institution, or business entity. The preceding sentence shall not apply to service of a Member, officer, or employee asVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00335 Fmt 5222 Sfmt 5222 SMANUAL.011 ETHICS1 PsN: ETHICS1
322 SENATE ETHICS MANUAL

(1) an officer or member of the board of an organization which is exempt from taxation under

section 501(c) of the Internal Revenue Code of 1954, if such service is performed without compensation;

(2) an officer or member of the board of an institution or organization which is principally

available to Members, officers, or employees of the Senate, or their families, if such service is

performed without compensation; or

(3) a member of the board of a corporation, institution, or other business entity, if (A) the

Member, officer, or employee had served continuously as a member of the board thereof for at

least two years prior to his election or appointment as a Member, officer, or employee of the Senate, (B) the amount of time required to perform such service is minimal, and (C) the Member,

officer, or employee is not a member of, or a member of the staff of any Senate committee which

has legislative jurisdiction over any agency of the Government charged with regulating the activities of the corporation, institution, or other business entity.

(b) A Member or an officer or employee whose rate of basic pay is equal to or greater than

120 percent of the annual rate of basic pay in effect for grade GS–15 of the General Schedule

shall not serve for compensation as an officer or member of the board of any association, corporation, or other entity.

7. An employee on the staff of a committee who is compensated at a rate in excess of $25,000

per annum and employed for more than ninety days in a calendar year shall divest himself of

any substantial holdings which may be directly affected by the actions of the committee for which

he works, unless the Select Committee, after consultation with the employee’s supervisor, grants

permission in writing to retain such holdings or the employee makes other arrangements acceptable

to the Select Committee and the employee’s supervisor to avoid participation in committee actions

where there is a conflict of interest, or the appearance thereof.

8. If a Member, upon leaving office, becomes a registered lobbyist under the Federal Regulation of Lobbying Act of 1946 or any successor statute, or is employed or retained by such a registered lobbyist for the purpose of influencing legislation, he shall not lobby Members, officers,

or employees of the Senate for a period of one year after leaving office.

9. If an employee on the staff of a Member, upon leaving that position, becomes a registered

lobbyist under the Federal Regulation of Lobbying Act of 1946 or any successor statute, or is

employed or retained by such a registered lobbyist for the purpose of influencing legislation, such

employee may not lobby the Member for whom he worked or that Member’s staff for a period

of one year after leaving that position. If an employee on the staff of a committee, upon leaving

his position, becomes such a registered lobbyist or is employed or retained by such a registered

lobbyist for the purpose of influencing legislation, such employee may not lobby the members of

the committee for which he worked, or the staff of that committee, for a period of one year after

leaving his position.

10. (a) Except as provided by subparagraph (b), any employee of the Senate who is required

to file a report pursuant to rule XXXIV shall refrain from participating personally and substantially

as an employee of the Senate in any contact with any agency of the executive or judicial branch

of Government with respect to nonlegislative matters affecting any non-governmental person in

which the employee has a significant financial interest.

(b) Subparagraph (a) shall not apply if an employee first advises his supervising authority of

his significant financial interest and obtains from his employing authority a written waiver stating

that the participation of the employee is necessary. A copy of each such waiver shall be filed

with the Select Committee.

11. For purposes of this ruleVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00336 Fmt 5222 Sfmt 5222 SMANUAL.011 ETHICS1 PsN: ETHICS1
APPENDIX B 323

(a) ‘‘employee of the Senate’’ includes an employee or individual described in paragraphs 2,

3, and 4(c) of rule XLI;

(b) an individual who is an employee on the staff of a subcommittee of a committee shall

be treated as an employee on the staff of such committee; and

(c) the term ‘‘lobbying’’ means any oral or written communication to influence the content

or disposition of any issue before Congress, including any pending or future bill, resolution, treaty,

nomination, hearing report, or investigation; but does not include-

(1) a communication (i) made in the form of testimony given before a committee or office

of the Congress, or (ii) submitted for inclusion in the public record, public docket, or public

file of a hearing; or

(2) a communication by an individual, acting solely on his own behalf, for redress of

personal grievances, or to express his personal opinion.

12. For purposes of this rule-

(a) a Senator or the Vice President is the supervisor of his administrative, clerical, or other

assistants;

(b) a Senator who is the chairman of a committee is the supervisor of the professional, clerical, or other assistants to the committee except that minority staff members shall be under the

supervision of the ranking minority Senator on the committee;

(c) a Senator who is a chairman of a subcommittee which has its own staff and financial

authorization is the supervisor of the professional, clerical, or other assistants to the subcommittee

except that minority staff members shall be under the supervision of the ranking minority Senator

on the subcommittee;

(d) the President pro tempore is the supervisor of the Secretary of the Senate, Sergeant at

Arms and Doorkeeper, the Chaplain, the Legislative Counsel, and the employees of the Office of

the Legislative Counsel;

(e) the Secretary of the Senate is the supervisor of the employees of his office;

(f) the Sergeant at Arms and Doorkeeper is the supervisor of the employees of his office;

(g) the Majority and Minority Leaders and the Majority and Minority Whips are the supervisors of the research, clerical, or other assistants assigned to their respective offices;

(h) the Majority Leader is the supervisor of the Secretary for the Majority and the Secretary

for the Majority is the supervisor of the employees of his office; and

(i) the Minority Leader is the supervisor of the Secretary for the Minority and the Secretary

for the Minority is the supervisor of the employees of his office.

324 SENATE ETHICS MANUAL

RULE XXXVIII

PROHIBITION OF UNOFFICIAL OFFICE ACCOUNTS

(As amended by Leg. Appr. Act, P.L. 101–520 pursuant to S. Res. 192 10/31/91: Effective date,

1/1/92)

1. (a) No Member may maintain or have maintained for his use an unofficial office account.

The term ‘‘unofficial office account’’ means an account or repository into which funds are received for the purpose, at least in part, of defraying otherwise unreimbursed expenses allowable

in connection with the operation of a Member’s office. An unofficial office account does not include, and expenses incurred by a Member in connection with his official duties shall be defrayed

only from-

(1) personal funds of the Member; ‘

(2) official funds specifically appropriated for that purpose;

(3) funds derived from a political committee (as defined in section 301(d) of the Federal Election Campaign Act of 1971 (2 U.S.C. 431)); and

(4) funds received as reasonable reimbursements for expenses incurred by a Member in connection with personal services provided by the Member to the organization making the reimbursement.

(b) Notwithstanding subparagraph (a), official expenses may be defrayed only as provided by

subsections (d) and (i) of section 311 of the Legislative Appropriations Act, 1991 (P.L. 101–520).*

2. No contribution (as defined in section 301(e) of the Federal Election Campaign Act of 1971

(2 U.S.C. 431)) shall be converted to the personal use of any Member or any former Member.

For the purposes of this rule ‘‘personal use’’ does not include reimbursement of expenses incurred

by a Member in connection with his official duties.

————————————

* No Senator or Member of the House of Representatives may maintain or use, directly or indirectly, an official

office account or otherwise defray official expenses from (1) funds received from a political committee or derived

from a contribution or expenditures (as such terms are defined in section 301 of the FEC Act of 1971); (2) funds

received as reimbursement for expenses incurred by the Senator or Member in connection with personal services

provided by the Senator or Member to the person making the reimbursement; or (3) any other funds that are not

specifically appropriate for official expenses. (Sec. 311(d), PL 101–520), [Rules Committee to issue regulations].

Effective date of this provision has been extended to May 1, 1992.

APPENDIX B 325

RULE XXXIX

FOREIGN TRAVEL

1. (a) Unless authorized by the Senate (or by the President of the United States after an adjournment sine die), no funds from the United States Government (including foreign currencies

made available under section 502(b) of the Mutual Security Act of 1954 (22 U.S.C. 175(b)) shall

be received for the purpose of travel outside the United States by any Member of the Senate whose

term will expire at the end of a Congress after-

(1) the date of the general election in which his successor is elected; or

(2) in the case of a Member who is not a candidate in such general election, the earlier of

the date of such general election or the adjournment sine die of the second regular session of that

Congress.

(b) The travel restrictions provided by subparagraph (a) with respect to a Member of the Senate whose term will expire at the end of a Congress shall apply to travel by-

(1) any employee of the Member;

(2) any elected officer of the Senate whose employment will terminate at the end of a Congress; and

(3) any employee of a committee whose employment will terminate at the end of a Congress.*

2. No Member, officer, or employee engaged in foreign travel may claim payment or accept

funds from the United States Government (including foreign currencies made available under section 502(b) of the Mutual Security Act of 1954 (22 U.S.C. 1754(b)) for any expense for which

the individual has received reimbursement from any other source; nor may such Member, officer,

or employee receive reimbursement for the same expense more than once from the United States

Government. No Member, officer, or employee shall use any funds furnished to him to defray

ordinary and necessary expenses of foreign travel for any purpose other than the purpose or purposes for which such funds were furnished.

3. A per diem allowance provided a Member, officer, or employee in connection with foreign

travel shall be used solely for lodging, food, and related expenses and it is the responsibility of

the Member, officer, or employee receiving such an allowance to return to the United States Government that portion of the allowance received which is not actually used for necessary lodging,

food, and related expenses.

326 SENATE ETHICS MANUAL

1 See new definition pursuant to PL 103–283, effective Oct. 1, 1994: The term ‘‘mass mailing’’ means, with respect

to a session of Congress, any mailing of newsletters or other pieces of mail with substantially identical content (whether

such mail is deposited singly or in bulk or at the same time or different times), totaling more than 500 pieces in that

session, except that such term does not include any mailing: (i) of matter in direct response to a communication from

a person to whom the matter is mailed; (ii) to other Members of Congress, or to Federal, State or local government

officials;(iii) of a news release to the communications media; (iv) of a town meeting notice, but no such mailing may

be made fewer than 60 days immediately before the date of any primary election or general election (whether regular,

special, or runoff) for any Federal, State, or local office in which a Member of the Senate is a candidate for election;

or (v) of a Federal publication or other item that is provided by the Senate to all Senators or made available by the

Senate for purchase by all Senators from official funds specifically for distribution. 2 Sec. 320, PL 101–520 (changed ‘‘annually’’ to ‘‘quarterly’’).

3 As amended, S. Res. 224, 103–2, June 21, 1994.

RULE XL

FRANKING PRIVILEGE AND RADIO AND TELEVISION STUDIOS

1. A Senator or an individual who is a candidate for nomination for election, or election, to

the Senate may not use the frank for any mass mailing (as defined in section 3210(a)(6)(E) of

title 39, United States Code) 1 if such mass mailing is mailed at or delivered to any postal facility

less than sixty days immediately before the date of any primary or general election (whether regular, special, or runoff) in which the Senator is a candidate for public office or the individual

is a candidate for Senator, unless the candidacy of the Senator in such election is uncontested..

2. A Senator shall use only official funds of the Senate, including his official Senate allowances, to purchase paper, to print, or to prepare any mass mailing material which is to be sent

out under the frank.

3. (a) When a Senator disseminates information under the frank by a mass mailing (as defined

in section 3210(a)(6)(E) of title 39, United States Code), the Senator shall register quarterly 2 with

the Secretary of the Senate such mass mailings. Such registration shall be made by filing with

the Secretary a copy of the matter mailed and providing, on a form supplied by the Secretary,

a description of the group or groups of persons to whom the mass mailing was mailed.

(b) The Secretary of the Senate shall promptly make available for public inspection and copying a copy of the mail matter registered, and a description of the group or groups of persons to

whom the mass mailing was mailed.

4. Nothing in this rule shall apply to any mailing under the frank which is (a) in direct response to inquiries or requests from persons to whom the matter is mailed; (b) addressed to colleagues in Congress or to government officials (whether Federal, State, or local); or (c) consists

entirely of news releases to the communications media.

5. The Senate computer facilities shall not be used (a) to store, maintain, or otherwise process

any lists or categories of lists of names and addresses identifying the individuals included in such

lists as campaign workers or contributors, as members of a political party, or by any other partisan

political designation, (b) to produce computer printouts except as authorized by the Committee on

Rules and Administration, or (c) to produce mailing labels for mass mailings, or computer tapes

and discs, for use other than in service facilities maintained and operated by the Senate or under

contract to the Senate. The Committee on Rules and Administration shall prescribe such regulations not inconsistent with the purposes of this paragraph as it determines necessary to carry out

such purposes.

6. (a) The radio and television studios provided by the Senate or by the House of Representatives may not be used by a Senator or an individual who is a candidate for nomination for election,

or election, to the Senate less than sixty days immediately before the date of any primary or general election (whether regular, special, or runoff) in which that Senator is a candidate for public

office or that individual is a candidate for Senator, unless the candidacy of the Senator in such

election is uncontested. 3

APPENDIX B 327

(b) This paragraph shall not apply if the facilities are to be used at the request of, and at

the expense of, a licensed broadcast organization or an organization exempt from taxation under

section 501(c)(3) of the Internal Revenue Code of 1954.

328 SENATE ETHICS MANUAL

1 Paragraph 3 was amended by changing ‘‘paragraph 2(d)’’ to ‘‘Paragraph 4’’. (S. Res. 192, 10/31/91).

RULE XLI

POLITICAL FUND ACTIVITY; DEFINITIONS

(Pursuant to S. Res. 192: Effective date, 10/31/91)

1. No officer or employee of the Senate may receive, solicit, be a custodian of, or distribute

any funds in connection with any campaign for the nomination for election, or the election, of

any individual to be a Member of the Senate or to any other Federal office. This prohibition does

not apply to three assistants to a Senator, at least one of whom is in Washington, District of Columbia, who have been designated by that Senator to perform any of the functions described in

the first sentence of this paragraph and who are compensated at an annual rate in excess of

$10,000 if such designation has been made in writing and filed with the Secretary of the Senate

and if each such assistant files a financial statement in the form provided under rule XXXIV for

each year during which he is designated under this rule. The Majority Leader and the Minority

Leader may each designate an employee of their respective leadership office staff as one of the

3 designees referred to in the second sentence. The Secretary of the Senate shall make the designation available for public inspection.

2. For purposes of the Senate Code of Official Conduct-

(a) an employee of the Senate includes any employee whose salary is disbursed by the Secretary of the Senate; and

(b) the compensation of an officer or employee of the Senate who is a reemployed annuitant

shall include amounts received by such officer or employee as an annuity, and such amounts shall

be treated as disbursed by the Secretary of the Senate.

3. Before approving the utilization by any committee of the Senate of the services of an officer or employee of the Government in accordance with paragraph 4 of rule XXVII or with an

authorization provided by Senate resolution, the Committee on Rules and Administration shall require such officer or employee to agree in writing to comply with the Senate Code of Official

Conduct in the same manner and to the same extent as an employee of the Senate. Any such

officer or employee shall, for purposes of such Code, be treated as an employee of the Senate

receiving compensation disbursed by the Secretary of the Senate in an amount equal to the amount

of compensation he is receiving as an officer or employee of the Government. 1

4. No Member, officer, or employee of the Senate shall utilize the full-time services of an

individual for more than ninety days in a calendar year in the conduct of official duties of any

committee or office of the Senate (including a Member’s office) unless such individual-

(a) is an officer or employee of the Senate,

(b) is an officer or employee of the Government (other than the Senate), or

(c) agrees in writing to comply with the Senate Code of Official Conduct in the same manner

and to the same extent as an employee of the Senate.

Any individual to whom subparagraph (c) applies shall, for purposes of such Code, be treated as

an employee of the Senate receiving compensation disbursed by the Secretary of the Senate in

an amount equal to the amount of compensation which such individual is receiving from any

source for performing such services.

5. In exceptional circumstances for good cause shown, the Select Committee on Ethics may

waive the applicability of any provision of the Senate Code of Official Conduct to an employee

hired on a per diem basis.

6. (a) The supervisor of an individual who performs services for any Member, committee,

or office of the Senate for a period in excess of four weeks and who receives compensation thereVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00342 Fmt 5222 Sfmt 5222 SMANUAL.011 ETHICS1 PsN: ETHICS1
APPENDIX B 329

fore from any source other than the United States Government shall report to the Select Committee

on Ethics with respect to the utilization of the services of such individual.

(b) A report under subparagraph (a) shall be made with respect to an individual-

(1) when such individual begins performing services described in such subparagraph;

(2) at the close of each calendar quarter while such individual is performing such services;

and

(3) when such individual ceases to perform such services.

Each such report shall include the identity of the source of the compensation received by such

individual and the amount or rate of compensation paid by such source.

(c) No report shall be required under subparagraph (a) with respect to an individual who normally performs services for a Member, committee, or office for less than eight hours a week.

(d) For purposes of this paragraph, the supervisor of an individual shall be determined under

paragraph 11 of rule XXXVII.

330 SENATE ETHICS MANUAL

RULE XLII

EMPLOYMENT PRACTICES

(As amended by Americans With Disabilities Act pursuant to S. Res. 192, 10/31/91: Effective

date, 7/26/90)

1. No Member, officer, or employee of the Senate shall, with respect to employment by the

Senate or any office thereof-

(a) fail or refuse to hire an individual;

(b) discharge an individual; or

(c) otherwise discriminate against an individual with respect to promotion, compensation, or

terms, conditions, or privileges of employment

-on the basis of such individual’s race, color, religion, sex, national origin, age, or state of physical

handicap.

SEC 509. COVERAGE OF CONGRESS AND THE AGENCIES OF THE LEGISLATIVE BRANCH.

(a) Coverage of the Senate—

(1) Commitment to Rule XLII.—The Senate reaffirms its commitment to Rule XLII of the Standing Rules of the

Senate which provides as follows:

’’No member, officer, or employee of the Senate shall, with respect to employment by the Senate or any office

thereof—

’’(a) fail or refuse to hire an individual;

’’(b) discharge an individual; or

’’(c) otherwise discriminate against an individual with respect to promotion, compensation, or terms, conditions,

or privileges of employment on the basis of such individual’s race, color, relegion, sex, national orgin, age, or

state of physical handicap.’’

(2) Application to Senate Employment.—The rights and protections provided pursuant to this Act, the Civil Rights

Act of 1990 (S. 2104, 101st Congress), the Civil Rights Act of 1964, the Age Discrimination in Employment Act

of 1967, and the Rehabilitation Act of 1973 shall apply with respect to employement by the United States Senate.

(3) Investigation and Adjudication of Claims.—All claims raised by any individual with respect to Senate

employment, pursuant to the Acts referred to in paragraph (2), shall be investigated and adjudicated by the Select

Committee on Ethics, pursuant to S. Res. 338, 88th Congress, as amended, or such other entity as the Senate may

designate.

(4) Rights of Employees.—The Committee on Rules and Administration shall ensure that Senate employees are

informed of their rights under the Acts referred to in paragraph (2).

(5) Applicable Remedies.—When assigning remedies to individuals found to have a valid claim under the Acts

referred to in paragraph (2), the Select Committee on Ethics, or such other entity as the Senate may designate,

should to the extent practicable apply the same remedies applicable to all other employees covered by the Acts

referred to in paragraph (2). Such remedies shall apply exclusively.

(6) Matters Other Than Employment.— (A) In General.—The rights and protections under this Act shall, subject to subparagraph (B), apply with respect

to the conduct of the Senate regarding matters other than employment. (B) Remedies.—The Architect of the Capitol shall establish remedies and procedures to be utilized with respect

to the rights and protections provided pursuant to subparagraph (A). Such remedies and procedures shall apply

exclusively, after approval in accordance with subparagraph (C). (C) Proposed Remedies and Procedures.—For purposes of subparagraph (B), the Architect of the Capitol shall

submit proposed remedies and procedures to the Senate Committee on Rules and Administration. The remedies and

procedures shall be effective upon the approvel of the Committee on Rules and Administration.

(7) Exrecise of Rulemaking Power.—Notwithstanding any other provision of law, enforcement and adjudicitation of

the rights and protections referred to in paragraph (2) and (6)(A) shall be within the exclusive jurisdiction of the

United States Senate. The provisions of paragraph (1), (3), (4), (5), (6)(B) and (6)(C) are enacted by the Senate

an exercise of the rulemaking power of the Senate, with full recognition of the right of the Senate to change its

rules, in the same manner, and to the same extent, as in the case of any other rule of the Senate.

——————————————

[Title II, sec. 203 of S. 1745, P.L. 102–166, Nov. 1991. Civil Rights Act of 1964. Establishes Office of Senate

Fair Employment Practices which places the responsibility to investigate and adjudicate claims arising under 1)

The Americans with Disabilities Act of 1990; 2) the Civil Rights Act of 1964; 3) the Age Discrimination in

Employment Act of 1967; and 4) the Rehabilitation Act of 1973, where such claims are raised by individuals with

respect to Senate employment. Title II, sec. 208 provides that the Select Committee on Ethics may, if requested,

review that Office’s decisions. This legislation supersedes prior legislation which placed this responsibility with the

Select Committee on Ethics (see sec. 509(a) of Americans with Disabilities Act of 1990, eff. 7/26/90)]

APPENDIX B 331

RULE XLIII

CONSTITUENT SERVICE

(Pursuant to S. Res. 273, 7/2/92: Effective date, 7/2/92)

‘‘1. In responding to petitions for assistance, a Member of the Senate, acting directly or

through employees, has the right to assist petitioners before executive and independent government

officials and agencies.

‘‘2. At the request of a petitioner, a Member of the Senate, or a Senate employee, may communicate with an executive or independent government official or agency on any matter to-

‘‘(a) request information or a status report;

‘‘(b) urge prompt consideration;

‘‘(c) arrange for interviews or appointments;

‘‘(d) express judgments;

‘‘(e) call for reconsideration of an administrative response which the Member believes is not

reasonably supported by statutes, regulations or considerations of equity or public policy; or

‘‘(f) perform any other service of a similar nature consistent with the provisions of this rule.

‘‘3. The decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest.

‘‘4. A Member shall make a reasonable effort to assure that representations made in the Member’s name by any Senate employee are accurate and conform to the Member’s instructions and

to this rule.

‘‘5. Nothing in this rule shall be construed to limit the authority of Members, and Senate employees, to perform legislation, including committee, responsibilities.

‘‘Sec. 2. Senate rule XLIII shall be deemed to be part of the Senate Code of Official Conduct

for purposes of Senate Resolution 110, Ninety-fifth Congress, and all other resolutions pertaining

to the jurisdiction of the Select Committee on Ethics.’’

332 SENATE ETHICS MANUAL

APPENDIX A

ETHICS IN GOVERNMENT ACT

TITLE I—FINANCIAL DISCLOSURE REQUIREMENTS OF

FEDERAL PERSONNEL

5 U.S.C. app. Sec. 101. Persons required to file

(a) Within thirty days of assuming the position of an officer or employee described in subsection (f), an individual shall file a report containing the information described in section 102(b)

[5 U.S.C. app. Sec. 102(b)] unless the individual has left another position described in subsection

(f) within thirty days prior to assuming such new position or has already filed a report under this

title [5 U.S.C. app. Sec. 101 et seq.] with respect to nomination for the new position or as a candidate for the position.

(b)(1) Within five days of the transmittal by the President to the Senate of the nomination

of an individual (other than an individual nominated for appointment to a position as a Foreign

Service Officer or a grade or rank in the uniformed services for which the pay grade prescribed

by section 201 of title 37, United States Code, is 0–6 or below) to a position, appointment to

which requires the advice and consent of the Senate, such individual shall file a report containing

the information described in section 102(b) [5 U.S.C. app. Sec. 102(b)]. Such individual shall, not

later than the date of the first hearing to consider the nomination of such individual, make current

the report filed pursuant to this paragraph by filing the information required by section

102(a)(1)(A) [5 U.S.C. app. Sec. 102(a)(1)(A)] with respect to income and honoraria received as

of the date which occurs five days before the date of such hearing. Nothing in this Act shall prevent any Congressional committee from requesting, as a condition of confirmation, any additional

financial information from any Presidential nominee whose nomination has been referred to that

committee.

(2) An individual whom the President or the President-elect has publicly announced he intends

to nominate to a position may file the report required by paragraph (1) at any time after that public

announcement, but not later than is required under the first sentence of such paragraph.

(c) Within thirty days of becoming a candidate as defined in section 301 of the Federal Campaign Act of 1971 [2 U.S.C. Sec. 431], in a calendar year for nomination or election to the office

of President, Vice President, or Member of Congress, or on or before May 15 of that calendar

year, whichever is later, but in no event later than 30 days before the election, and on or before

May 15 of each successive year an individual continues to be a candidate, an individual other

than an incumbent President, Vice President, or Member of Congress shall file a report containing

the information described in section 102(b) [5 U.S.C. app. Sec. 102(b)]. Notwithstanding the preceding sentence, in any calendar year in which an individual continues to be a candidate for any

office but all elections for such office relating to such candidacy were held in prior calendar years,

such individual need not file a report unless he becomes a candidate for another vacancy in that

office or another office during that year.

(d) Any individual who is an officer or employee described in subsection (f) during any calendar year and performs the duties of his position or office for a period in excess of sixty days

in that calendar year shall file on or before May 15 of the succeeding year a report containing

the information described in section 102(a) [5 U.S.C. app. Sec. 102(a)].

(e) Any individual who occupies a position described in subsection (f) shall, on or before the

thirtieth day after termination of employment in such position, file a report containing the information described in section 102(a) [5 U.S.C. app. Sec. 102(a)] covering the preceding calendar year

if the report required by subsection (d) has not been filed and covering the portion of the calendar

APPENDIX B 333

year in which such termination occurs up to the date the individual left such office or position,

unless such individual has accepted employment in another position described in subsection (f).

(f) The officers and employees referred to in subsections (a), (d), and (e) are-

(1) the President;

(2) the Vice President;

(3) each officer or employee in the executive branch, including a special Government employee as defined in section 202 of title 18, United States Code, who occupies a position classified

above GS–15 of the General Schedule or, in the case of positions not under the General Schedule,

for which the rate of basic pay is equal to or greater than 120 percent of the minimum rate of

basic pay payable for GS–15 of the General Schedule; each member of a uniformed service whose

pay grade is at or in excess of 0–7 under section 201 of title 37 United States Code; and each

office or employee in any other position determined by the Director of the Office of Government

Ethics to be of equal classification;

(4) each employee appointed pursuant to section 3105 of title 5, United States Code;

(5) any employee not described in paragraph (3) who is in a position in the executive branch

which is excepted from the competitive service by reason of being of a confidential or policymaking character, except that the Director of the Office of Government Ethics may, by regulation,

exclude from the application of this paragraph any individual, or group of individuals, who are

in such positions, but only in cases in which the Director determines such exclusion would not

affect adversely the integrity of the Government or the public’s confidence in the integrity of the

Government;

(6) the Postmaster General, the Deputy Postmaster General, each Governor of the Board of

Governors of the United States Postal Service and each officer or employee of the United States

Postal Service or Postal Rate Commission who occupies a position for which the rate of basic

pay is equal to or greater than 120 percent of the minimum rate of basic pay payable for GS–

15 of the General Schedule;

(7) the Director of the Office of Government Ethics and each designated agency ethics official;

(8) any civilian employee not described in paragraph (3), employed in the Executive Office

of the President (other than a special government employee) who holds a commission of appointment from the President;

(9) a Member of Congress as defined under section 109(12) [5 U.S.C. app. Sec. 109(12)];

(10) an officer or employee of the Congress as defined under section 109(13) [5 U.S.C. app.

Sec. 109(13)];

(11) a judicial officer as defined under section 109(10) [5 U.S.C. app. Sec. 109(10)]; and

(12) a judicial employee as defined under section 109(8) [5 U.S.C. app. Sec. 109(8)].

(g)(1) Reasonable extensions of time for filing any report may be granted under procedures

prescribed by the supervising ethics office for each branch, but the total of such extensions shall

not exceed ninety days.

(2)(A) In the case of an individual who is serving in the Armed Forces, or serving in support

of the Armed Forces, in an area while that area is designated by the President by Executive order

as a combat zone for purposes of section 112 of the Internal Revenue Code of 1986 [26 U.S.C.

Sec. 112], the date for the filing of any report shall be extended so that the date is 180 days

after the later of-

(i) the last day of the individual’s service in such area during such designated period; or

334 SENATE ETHICS MANUAL

(ii) the last day of the individual’s hospitalization as a result of injury received or disease

contracted while serving in such area.

(B) The Office of Government Ethics, in consultation with the Secretary of Defense, may prescribe procedures under this paragraph.

(h) The provisions of subsections (a), (b), and (e) shall not apply to an individual who, as

determined by the designated agency ethics official or Secretary concerned (or in the case of a

Presidential appointee under subsection (b), the Director of the Office of Government Ethics), the

congressional ethics committees, or the Judicial Conference, is not reasonably expected to perform

the duties of his office or position for more than sixty days in a calendar year, except that if

such individual performs the duties of his office or position for more than sixty days in a calendar

year-

(1) the report required by subsections (a) and (b) shall be filed within fifteen days of the sixtieth day, and

(2) the report required by subsection (e) shall be filed as provided in such subsection.

(i) The supervising ethics office for each branch may grant a publicly available request for

a waiver of any reporting requirement under this section for an individual who is expected to perform or has performed the duties of his office or position less than one hundred and thirty days

in a calendar year, but only if the supervising ethics office determines that-

(1) such individual is not a full-time employee of the Government,

(2) such individual is able to provide services specially needed by the Government,

(3) it is unlikely that the individual’s outside employment or financial interests will create a

conflict of interest, and

(4) public financial disclosure by such individual is not necessary in the circumstances.

5 U.S.C. app. Sec. 102. Contents of reports

(a) Each report filed pursuant to section 101(d) and (e) [5 U.S.C. app. Sec. 101(d), (e)] shall

include a full and complete statement with respect to the following:

(1)(A) The source, type, and amount or value of income (other than income referred to in

subparagraph (B)) from any source (other than from current employment by the United States

Government), and the source, date, and amount of honoraria from any source, received during the

preceding calendar year, aggregating $200 or more in value and, effective January 1, 1991, the

source, date, and amount of payments made to charitable organizations in lieu of honoraria, and

the reporting individual shall simultaneously file with the applicable supervising ethics office, on

a confidential basis, a corresponding list of recipients of such payments, together with the dates

and amounts of such payments.

(B) The source and type of income which consists of dividends, rents, interest, and capital

gains, received during the preceding calendar year which exceeds $200 in amount or value, and

an indication of which of the following categories the amount or value of such item of income

is within:

(i) not more than $1,000,

(ii) greater than $1,000 but not more than $2,500,

(iii) greater than $2,500 but not more than $5,000,

(iv) greater than $5,000 but not more than $15,000,

(v) greater than $15,000 but not more than $50,000,

(vi) greater than $50,000 but not more than $100,000,

(vii) greater than $100,000 but not more than $1,000,000, or

APPENDIX B 335

(viii) greater than $1,000,000.

(2)(A) The identity of the source, a brief description, and the value of all gifts aggregating

more than the minimal value as established by section 7342(a)(5) of title 5, United States Code,

or $250, whichever is greater, received from any source other than a relative of the reporting individual during the preceding calendar year, except that any food, lodging, or entertainment received

as personal hospitality of an individual need not be reported, and any gift with a fair market value

of $100 or less, as adjusted at the same time and by the same percentage as the minimal value

is adjusted, need not be aggregated for purposes of this subparagraph.

(B) The identity of the source and a brief description (including a travel itinerary, dates, and

nature of expenses provided) of reimbursements received from any source aggregating more than

the minimal value as established by section 7342(a)(5) of title 5, United States Code, or $250,

whichever is greater and received during the preceding calendar year.

(C) In an unusual case, a gift need not be aggregated under subparagraph (A) if a publicly

available request for a waiver is granted.

(3) The identity and category of value of any interest in property held during the preceding

calendar year in a trade or business, or for investment or the production of income, which has

a fair market value which exceeds $1,000 as of the close of the preceding calendar year, excluding

any personal liability owed to the reporting individual by a spouse, or by a parent, brother, sister,

or child of the reporting individual or of the reporting individual’s spouse, or any deposits aggregating $5,000 or less in a personal savings account. For purposes of this paragraph, a personal

savings account shall include any certificate of deposit or any other form of deposit in a bank,

savings and loan association, credit union, or similar financial institution.

(4) The identity and category of value of the total liabilities owed to any creditor other than

a spouse, or a parent, brother, sister or child of the reporting individual or of the reporting individual’s spouse which exceed $10,000 at any time during the preceding calendar year, excluding-

(A) any mortgage secured by real property which is a personal residence of the reporting

individual or his spouse; and

(B) any loan secured by a personal motor vehicle, household furniture, or appliances,

which loan does not exceed the purchase price of the item which secures it.

With respect to revolving charge accounts, only those with an outstanding liability which exceeds $10,000 as of the close of the preceding calendar year need be reported under this paragraph.

(5) Except as provided in this paragraph, a brief description, the date, and category of value

of any purchase, sale or exchange during the preceding calendar year which exceeds $1,000-

(A) in real property, other than property used solely as a personal residence of the reporting individual or his spouse; or

(B) in stocks, bonds, commodities futures, and other forms of securities.

Reporting is not required under this paragraph of any transaction solely by and between the

reporting individual, his spouse, or dependent children.

(6)(A) The identity of all positions held on or before the date of filing during the current

calendar year (and, for the first report filed by an individual, during the 2-year period preceding

such calendar year) as an officer, director, trustee, partner, proprietor, representative, employee,

or consultant of any corporation, company firm, partnership, or other business enterprise, any nonprofit organization, any labor organization, or any educational or other institution other than the

United States. This subparagraph shall not require the reporting of positions held in any religious,

social, fraternal, or political entity and positions solely for an honorary nature

(B) If any person, other than the United States Government, paid a nonelected reporting individual compensation in excess of $5,000 in any of the two calendar years prior to the calendar

336 SENATE ETHICS MANUAL

year during which the individual files his first report under this title [5 U.S.C. app. Sec. 101 et

seq.], the individual shall include in the report-

(i) the identity of each source of such compensation; and

(ii) a brief description of the nature of the duties performed or services rendered by the

reporting individual for each such source.

The preceding sentence shall not require any individual to include in such report any information which is considered confidential as a result of a privileged relationship, established by law,

between such individual and any person nor shall it require an individual to report any information

with respect to any person for whom services were provided by any firm or association of which

such individual was a member, partner, or employee unless such individual was directly involved

in the provision of such services.

(7) A description of the date, parties to, and terms of any agreement of arrangement with

respect to (A) future employment; (B) a leave of absence during the period of the reporting individual’s Government service; (C) continuation of payments by a former employer other than the

United States Government; and (D) continuing participation in an employee welfare or benefit plan

maintained by a former employer.

(b)(1) Each report filed pursuant to subsections (a), (b), and (c) of section 101 [5 U.S.C. app.

Sec. 101(a)-(c)] shall include a full and complete statement with respect to the information required by-

(A) paragraph (1) of subsection (a) for the year of filing and the preceding calendar year,

(B) paragraphs (3) and (4) of subsection (a) as of the date specified in the report but which

is less than thirty-one days before the filing date, and

(C) paragraphs (6) and (7) of subsection (a) of the filing date but for periods described in

such paragraphs.

(2)(A) In lieu of filling out one or more schedules of a financial disclosure form, an individual

may supply the required information in an alternative format, pursuant to either rules adopted by

the supervising ethics office for the branch in which such individual serves or pursuant to a specific written determination by such office for a reporting individual.

(B) In lieu of indicating the category of amount or value of any item contained in any report

filed under this title [5 U.S.C. app. Sec. 101 et seq.], a reporting individual may indicate the exact

dollar amount of such item.

(c) In the case of any individual described in section 101(e) [5 U.S.C. app. Sec. 101(e)], any

reference to the preceding calendar year shall be considered also to include that part of the calendar year of filing up to the date of the termination of employment.

(d)(1) The categories for reporting the amount of value of the items covered in paragraphs

(3), (4) and (5) of subsection (a) are as follows:

(A) not more than $15,000;

(B) greater than $15,000 but not more than $50,000;

(C) greater than $50,000 but not more than $100,000;

(D) greater than $100,000 but not more than $250,000;

(E) greater than $250,000 but not more than $500,000;

(F) greater than $500,000 but not more than $1,000,000; and

(G) greater than $1,000,000.

(2) For the purposes of paragraph (3) of subsection (a) if the current value of an interest in

real property (or an interest in a real estate partnership) is not ascertainable without an appraisal,

an individual may list (A) the date of purchase and the purchase price of the interest in the real

APPENDIX B 337

property, or (B) the assessed value of the real property for tax purposes, adjusted to reflect the

market value of the property used for the assessment if the assessed value is computed at less

than 100 percent of such market value, but such individual shall include in his report a full and

complete description of the method used to determine such assessed value, instead of specifying

a category of value pursuant to paragraph (1) of this subsection. If the current value of any other

item required to be reported under paragraph (3) of subsection (a) is not ascertainable without an

appraisal, such individual may list the book value of a corporation whose stock is not publicly

traded, the net worth of a business partnership, the equity value of an individually owned business,

or with respect to other holdings, any recognized indication of value, but such individual shall

include in his report a full and complete description of the method used in determining such value.

In lieu of any value referred to in the preceding sentence, an individual may list the assessed value

of the item for tax purposes, adjusted to reflect the market value of the item used for the assessment if the assessed value is computed at less than 100 percent of such market value, but a full

and complete description of the method used in determining such assessed value shall be included

in the report.

(e)(1) Except as provided in the last sentence of this paragraph, each report required by section 101 [5 U.S.C. app. Sec. 101] shall also contain information listed in paragraphs (1) through

(5) of subsection (a) of this section respecting the spouse or dependent child of the reporting individual as follows:

(A) The source of items of earned income earned by a spouse from any person which exceed

$1,000 and the source and amount of any honoraria received by a spouse, except that, with respect

to earned income (other than honoraria), if the spouse is self-employed in business or a profession,

only the nature of such business or profession need be reported.

(B) All information required to be reported in subsection (a)(1)(B) with respect to income derived by a spouse or dependent child from any asset held by the spouse or dependent child and

reported pursuant to subsection (a)(3).

(C) In the case of any gifts received by a spouse or dependent child which are not received

totally independent of the relationship of the spouse or dependent child to the reporting individual,

the identity of the source and a brief description of gifts of transportation, lodging, food, or entertainment and a brief description and the value of other gifts.

(D) In the case of any reimbursements received by a spouse or dependent child which are

not received totally independent of the relationship of the spouse or dependent child to the reporting individual, the identity of the source and a brief description of each such reimbursement.

(E) In the case of items described in paragraphs (3) through (5) of subsection (a), all information required to be reported under these paragraphs other than items (i) which the reporting individual certifies represent the spouse’s or dependent child’s sole financial interest or responsibility

and which the reporting individual has no knowledge of, (ii) which are not in any way, past or

present, derived from the income, assets, or activities of the reporting individual, and (iii) from

which the reporting individual neither derives, nor expects to derive, any financial or economic

benefit.

Reports required by subsections (a), (b), and (c) of section 101 [5 U.S.C. app. Sec. 101(a)-(c)]

shall, with respect to the spouse and dependent child of the reporting individual, only contain information listed in paragraphs (1), (3), and (4) of subsection (a), as specified in this paragraph.

(2) No report shall be required with respect to a spouse living separate and apart from the

reporting individual with the intention of terminating the marriage or providing for permanent separation; or with respect to any income or obligations of an individual arising from the dissolution

of his marriage or the permanent separation from his spouse.

338 SENATE ETHICS MANUAL

(f)(1) Except as provided in paragraph (2), each reporting individual shall report the information required to be reported pursuant to subsections (a), (b), and (c) of this section with respect

to the holdings of and the income from a trust or other financial arrangement from which income

is received by, or with respect to which a beneficial interest in principal or income is held by,

such individual, his spouse, or any dependent child.

(2) A reporting individual need not report the holdings of or the source of income from any

of the holdings of-

(A) any qualified blind trust (as defined in paragraph (3));

(B) a trust-

(i) which was not created directly by such individual, his spouse, or any dependent child,

and

(ii) the holdings or sources of income of which such individual, his spouse, and any dependent child have no knowledge of; or

(C) an entity described under the provisions of paragraph (8), but such individual shall report

the category of the amount of income received by him, his spouse, or any dependent child from

the trust or other entity under subsection (a)(1)(B) of this section.

(3) For purposes of this subsection, the term ‘‘qualified blind trust’’ includes any trust in

which a reporting individual, his spouse, or any minor or dependent child has a beneficial interest

in the principal or income, and which meets the following requirements:

(A)(i) The trustee of the trust and any other entity designated in the trust instrument to perform fiduciary duties is a financial institution, an attorney, a certified public accountant, a broker,

or an investment advisor who-

(I) is independent of and not associated with any interested party so that the trustee or

other person cannot be controlled or influenced in the administration of the trust by any interested party; and

(II) is not and has not been an employee of or affiliated with any interested party and

is not a partner, of, or involved in any joint venture or other investment with, any interested

party; and

(III) is not a relative of any interested party.

(ii) Any officer or employee of a trustee or other entity who is involved in the management

or control of the trust-

(I) is independent of and not associated with any interested party so that such officer or

employee cannot be controlled or influenced in the administration of the trust by any interested party;

(II) is not a partner of, or involved in any joint venture or other investment with, any

interested party; and

(III) is not a relative of any interested party.

(B) Any asset transferred to the trust by an interested party is free of any restriction with

respect to its transfer or sale unless such restriction is expressly approved by the supervising ethics

office of the reporting individual.

(C) The trust instrument which establishes the trust provides that-

(i) except to the extent provided in subparagraph (B) of this paragraph, the trustee in the

exercise of his authority and discretion to manage and control the assets of the trust shall

not consult or notify any interested party;

(ii) the trust shall not contain any asset the holding of which by an interested party is

prohibited by any law or regulation;

APPENDIX B 339

(iii) the trustee shall promptly notify the reporting individual and his supervising ethics

office when the holdings of any particular asset transferred to the trust by any interested party

are disposed of or when the value of such holding is less than $1,000;

(iv) the trust tax return shall be prepared by the trustee or his designee, and such return

and any information relating thereto (other than the trust income summarized in appropriate

categories necessary to complete an interested party’s tax return), shall not be disclosed to

any interested party;

(v) an interested party shall not receive any report on the holdings and sources of income

of the trust, except a report at the end of each calendar quarter with respect to the total cash

value of the interest of the interested party in the trust or the net income or loss of the trust

or any reports necessary to enable the interested party to complete an individual tax return

required by law or to provide the information required by subsection (a)(1) of this section,

but such report shall not identify any asset or holding;

(vi) except for communications which solely consist of requests for distributions of cash

or other unspecified assets of the trust, there shall be no direct or indirect communication between the trustee and an interested party with respect to the trust unless such communications

is in writing and unless it relates only (I) to the general financial interest and needs of the

interested party (including, but not limited to, an interest in maximizing income or long-term

capital gain), (II) to the notification of the trustee of a law or regulation subsequently applicable to the reporting individual which prohibits the interested party from holding an asset,

which notification directs that the asset not be held by the trust, or (III) to directions to the

trustee to sell all of an asset initially placed in the trust by an interested party which in the

determination of the reporting individual creates a conflict of interest or the appearance thereof

due to the subsequent assumptions of duties by the reporting individual (but nothing herein

shall require any such direction); and

(vii) the interested parties shall make no effort to obtain information with respect to the

holdings of the trust, including obtaining a copy of any trust tax return filed or any information relating thereto except as otherwise provided in this subsection.

(D) The proposed trust instrument and the proposed trustee is approved by the reporting individual’s supervising ethics office.

(E) For purposes of this subsection, ‘‘interested party’’ means a reporting individual, his

spouse, and any minor or dependent child; ‘‘broker’’ has the meaning set forth in section 3(a)(4)

of the Securities and Exchange Act of 1934 (15 U.S.C. Sec. 78c(a)(4)); and ‘‘investment adviser’’

includes any investment adviser who, as determined under regulations prescribed by the supervising ethics office, is generally involved in his role as such an adviser in the management of

control of trusts.

(F) Any trust qualified by a supervising ethics office before the effective date of title II of

the Ethics Reform Act of 1989 shall continue to be governed by the law and regulations in effect

immediately before such effective date.

(4)(A) An asset placed in a trust by an interested party shall be considered a financial interest

of the reporting individual for the purposes of any applicable conflict of interest statutes, regulations, or rules of the Federal Government (including section 208 of title 18, United States Code),

until such time as the reporting individual is notified by the trustee that such asset has been disposed of, or has a value of less than $1,000.

(B)(i) The provisions of subparagraph (A) shall not apply with respect to a trust created for

the benefit of a reporting individual, or the spouse, dependent child, or minor child of such a person, if the supervising ethics office for such reporting individual finds thatVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00353 Fmt 5222 Sfmt 5222 SMANUAL.011 ETHICS1 PsN: ETHICS1
340 SENATE ETHICS MANUAL

(I) the assets placed in the trust consist of a well-diversified portfolio of readily marketable

securities;

(II) none of the assets consist of securities of entities having substantial activities in the area

of the reporting individual’s primary area of responsibility;

(III) the trust instrument prohibits the trustee, notwithstanding the provisions of paragraphs

(3)(C) (iii) and (iv) of this subsection, from making public or informing any interested party of

the sale of any securities;

(IV) the trustee is given power of attorney, notwithstanding the provisions of paragraph

(3)(C)(v) of this subsection, to prepare on behalf of any interested party the personal income tax

returns and similar returns which may contain information relating to the trust; and

(V) except as otherwise provided in this paragraph, the trust instrument provides (or in the

case of a trust established prior to the effective date of this Act which by its terms does not permit

amendment, the trustee, the reporting individual, and any other interested party agree in writing)

that the trust shall be administered in accordance with the requirements of this subsection and the

trustee of such trust meets the requirements of paragraph (3)(A).

(ii) In any instance covered by subparagraph (B) in which the reporting individual is an individual whose nomination is being considered by a congressional committee, the reporting individual shall inform the congressional committee considering his nomination before or during the

period of such individual’s confirmation hearing of his intention to comply with this paragraph.

(5)(A) The reporting individual shall, within thirty days after a qualified blind trust is approved by his supervising ethics office, file with such office a copy of-

(i) the executed trust instrument of such trust (other than those provisions which relate to the

testamentary disposition of the trust assets), and

(ii) a list of the assets which were transferred to such trust, including the category of value

of each asset as determined under subsection (d) of this section.

This subparagraph shall not apply with respect to a trust meeting the requirements for being considered a qualified blind trust under paragraph (7) of this subsection.

(B) The reporting individual shall, within thirty days of transferring an asset (other than cash)

to a previously established qualified blind trust, notify his supervising ethics office of the identity

of each such asset and the category of value of each asset as determined under subsection (d)

of this section.

(C) Within thirty days of the dissolution of a qualified blind trust, a reporting individual shall-

(i) notify his supervising ethics office of such dissolution, and

(ii) file with such office a copy of a list of the assets of the trust at the time of such dissolution and the category of value under subsection (d) of this section of each such asset.

(D) Documents filed under subparagraphs (A), (B), and (C) of this paragraph and the lists

provided by the trustee of assets placed in the trust by an interested party which have been sold

shall be made available to the public in the same manner as a report is made available under

section 105 [5 U.S.C. app. Sec. 105] and the provisions of that section shall apply with respect

to such documents and lists.

(E) A copy of each written communication with respect to the trust under paragraph (3)(C)(vi)

shall be filed by the person initiating the communication with the reporting individual’s supervising ethics office within five days of the date of the communication.

(6)(A) A trustee of a qualified blind trust shall not knowingly and willfully, or negligently,

(i) disclose any information to an interested party with respect to such trust that may not be

disclosed under paragraph (3) of this subsection;

APPENDIX B 341

(ii) acquire any holding the ownership of which is prohibited by the trust instrument;

(iii) solicit advice from any interested party with respect to such trust, which solicitation is

prohibited by paragraph (3) of this subsection or the trust agreement; or

(iv) fail to file any document required by this subsection.

(B) A reporting individual shall not knowingly and willfully, or negligently, (i) solicit or receive any information with respect to a qualified blind trust of which he is an interested party

that may not be disclosed under paragraph (3)(C) of this subsection or (ii) fail to file any document required by this subsection.

(C)(i) The Attorney General may bring a civil action in any appropriate United States district

court against any individual who knowingly and willfully violates the provisions of subparagraph

(A) or (B) of this paragraph. The court in which such action is brought may assess against such

individual a civil penalty in any amount not to exceed $10,000.

(ii) The Attorney General may bring a civil action in any appropriate United States district

court against any individual who negligently violates the provisions of subparagraph (A) or (B)

of this paragraph. The court in which such action is brought may assess against such individual

a civil penalty in any amount not to exceed $5,000.

(7) Any trust may be considered to be a qualified blind trust if-

(A) the trust instrument is amended to comply with the requirements of paragraph (3) or, in

the case of a trust instrument which does not by its terms permit amendment, the trustee, the reporting individual, and any other interested party agree in writing that the trust shall be administered in accordance with the requirements of this subsection and the trustee of such trust meets

the requirements of paragraph (3)(A); except that in the case of any interested party who is a dependent child, a parent or guardian of such child may execute the agreement referred to in this

subparagraph;

(B) a copy of the trust instrument (except testamentary provisions) and a copy of the agreement referred to in subparagraph (A), and a list of the assets held by the trust at the time of approval by the supervising ethics office, including the category of value of each asset as determined

under subsection (d) of this section, are filed with such office and made available to the public

as provided under paragraph (5)(D) of this subsection; and

(C) the supervising ethics office determines that approval of the trust arrangement as a qualified blind trust is in the particular case appropriate to assure compliance with applicable laws and

regulations.

(8) A reporting individual shall not be required to report the financial interests held by a widely held investment fund (whether such fund is a mutual fund, regulated investment company, pension or deferred compensation plan, or other investment fund), if-

(A)(i) the fund is publicly traded; or

(ii) the assets of the fund are widely diversified; and

(B) the reporting individual neither exercises control over nor has the ability to exercise control over the financial interests held by the fund.

(g) Political campaign funds, including campaign receipts and expenditures, need not be included in any report filed pursuant to this title [5 U.S.C. app. Sec. 101 et seq.].

(h) A report filed pursuant to subsection (a), (d), or (e) of section 101 [5 U.S.C. app. Sec.

101(a), (d), or (e)] need not contain the information described in subparagraphs (A), (B), and (C)

of subsection (a)(2) with respect to gifts and reimbursements received in a period when the reporting individual was not an officer or employee of the Federal Government.

342 SENATE ETHICS MANUAL

(i) A reporting individual shall not be required under this title [5 U.S.C. app. Sec. 101 et

seq.] to report-

(1) financial interests in or income derived from-

(A) any retirement system under title 5, United States Code (including the Thrift Savings

Plan under subchapter III of chapter 84 of such title [5 U.S.C. Sec. 8431 et seq.]); or

(B) any other retirement system maintained by the United States for officers or employees

of the United States, including the President, or for members of the uniformed services; or

(2) benefits received under the Social Security Act [42 U.S.C. Sec. 301 et seq.].

5 U.S.C. app. Sec. 103. Filing of reports

(a) Except as otherwise provided in this section, the reports required under this title [5 U.S.C.

app. Sec. 101 et seq.] shall be filed by the reporting individual with the designated agency ethics

official at the agency by which he is employed (or in the case of an individual described in section

101(e) [5 U.S.C. app. Sec. 101(e)], was employed) or in which he will serve. The date any report

is received (and the date of receipt of any supplemental report) shall be noted on such report by

such official.

(b) The President, the Vice President, and independent counsel and persons appointed by independent counsel under chapter 40 of title 28, United States Code [28 U.S.C. Sec. 591 et seq.],

shall file reports required under this title with the Director of the Office of Government Ethics.

(c) Copies of the reports required to be filed under this title [5 U.S.C. app. Sec. 101 et seq.]

by the Postmaster General, the Deputy Postmaster General, the Governors of the Board of Governors of the United States Postal Service, designated agency ethics officials, employees described

in section 105(a)(2)(A) or (B), 106(a)(1)(A) or (B) or 107(a)(1)(A) or (b)(1)(A)(i), of title 3,

United States Code, candidates for the office of President or Vice President and officers and employees in (and nominees to) offices or positions which require confirmation by the Senate or by

both Houses of Congress other than individuals nominated to be judicial officers and those referred

to in subsection (f) shall be transmitted to the Director of the Office of Government Ethics. The

Director shall forward a copy of the report of each nominee to the congressional committee considering the nomination.

(d) Reports required to be filed under this title [5 U.S.C. app Sec. 101 et seq.] by the Director

of the Office of Government Ethics shall be filed in the Office of Government Ethics and, immediately after being filed, shall be made available to the public in accordance with this title [5

U.S.C. app. Sec. 101 et seq.].

(e) Each individual identified in section 101(c) [5 U.S.C. app. Sec. 101(c)] who is a candidate

for nomination or election to the Office of President or Vice President shall file the reports required by this title [5 U.S.C. app. Sec. 101 et seq.] with the Federal Election Commission.

(f) Reports required of members of the uniformed services shall be filed with the Secretary

concerned.

(g) Each supervising ethics office shall develop and make available forms for reporting the

information required by this title [5 U.S.C. app. Sec. 101 et seq.].

(h)(1) The reports required under this title [5 U.S.C. app. Sec. 101 et seq.] shall be filed by

a reporting individual with-

(A)(i)(I) the Clerk of the House of Representatives, in the case of a Representative in Congress, a Delegate to Congress, the Resident Commissioner from Puerto Rico, an officer or employee of the Congress whose compensation is disbursed by the Clerk of the House of Representatives, an officer or employee of the Architect of the Capitol, the United States Botanic Garden,

the Congressional Budget Office, the Government Printing Office, the Library of Congress, or the

APPENDIX B 343

Copyright Royalty Tribunal (including any individual terminating service, under section 101(e) [5

U.S.C. app. Sec. 101(e)], in any office or position referred to in this subclause), or an individual

described in section 101(c) [5 U.S.C. app. Sec. 101(c)] who is a candidate for nomination or election as a Representative in Congress, a Delegate to Congress, or the Resident Commissioner from

Puerto Rico; and

(II) the Secretary of the Senate, in the case of a Senator, an officer or employee of the Congress whose compensation is disbursed by the Secretary of the Senate, an officer or employee of

the General Accounting Office, the Office of Technology Assessment, or the Office of the Attending Physician (including any individual terminating service, under section 101(e) [5 U.S.C. app.

Sec. 101(e)], in any office or position referred to in this subclause), or an individual described

in section 101(c) [5 U.S.C. app. Sec. 101(c)] who is a candidate for nomination or election as

a Senator; and

(ii) in the case of an officer or employee of the Congress as described under section 101(f)(10)

[5 U.S.C. app. Sec. 101(f)(10)] who is employed by an agency or commission established in the

legislative branch after the date of the enactment of the Ethics Reform Act of 1989 [enacted Nov.

30, 1989]-

(I) the Secretary of the Senate or the Clerk of the House of Representatives, as the case

may be, as designated in the statute establishing such agency or commission; or

(II) if such statute does not designate such committee, the Secretary of the Senate for

agencies and commissions established in even numbered calendar years, and the Clerk of the

House of Representatives for agencies and commissions established in odd numbered calendar

years; and

(B) the Judicial Conference with regard to a judicial officer or employee described under paragraphs (11) and (12) of section 101(f) [5 U.S.C. app. Sec. 101(f)(11), (12)] (including individuals

terminating service in such office or position under section 101(e) [5 U.S.C. app. Sec. 101(e)]

or immediately preceding service in such office or position).

(2) The date any report is received (and the date of receipt of any supplemental report) shall

be noted on such report by such committee.

(i) A copy of each report filed under this title [5 U.S.C. app. Sec. 101 et seq.] by a Member

or an individual who is a candidate for the office of Member shall be sent by the Clerk of the

House of Representatives or Secretary of the Senate, as the case may be, to the appropriate State

officer designated under section 316(a) of the Federal Election Campaign Act of 1971 [2 U.S.C.

Sec. 439(a)] of the State represented by the Member or in which the individual is a candidate,

as the case may be, within the 30-day period beginning on the day the report is filed with the

Clerk or Secretary.

(j)(1) A copy of each report filed under this title [5 U.S.C. app. Sec. 101 et seq.] with the

Clerk of the House of Representatives shall be sent by the Clerk to the Committee on Standards

of Official Conduct of the House of Representatives within the 7-day period beginning on the day

the report is filed.

(2) A copy of each report filed under this title [5 U.S.C. app. Sec. 101 et seq.] with the Secretary of the Senate shall be sent by the Secretary to the Select Committee on Ethics of the Senate

within the 7-day period beginning on the day the report is filed.

(k) In carrying out their responsibilities under this title [5 U.S.C. app. Sec. 101 et seq.] with

respect to candidates for office, the Clerk of the House of Representatives and the Secretary of

the Senate shall avail themselves of the assistance of the Federal Election Commission. The Commission shall make available to the Clerk and the Secretary on a regular basis a complete list

of names and addresses of all candidates registered with the Commission, and shall cooperate and

344 SENATE ETHICS MANUAL

coordinate its candidate information and notification program with the Clerk and the Secretary to

the greatest extent possible.

5 U.S.C. app. Sec. 104. Failure to file or filing false reports

(a) The Attorney General may bring a civil action in any appropriate United States district

court against any individual who knowingly and willfully falsifies or who knowingly and willfully

fails to file or report any information that such individual is required to report pursuant to section

102 [5 U.S.C. app. Sec. 102]. The court in which such action is brought may assess against such

individual a civil penalty in any amount, not to exceed $10,000.

(b) The head of each agency, each Secretary concerned, the Director of the Office of Government Ethics, each congressional ethics committee, or the Judicial Conference, as the case may be,

shall refer to the Attorney General the name of any individual which such official or committee

has reasonable cause to believe has willfully failed to file a report or has willfully falsified or

willfully failed to file information required to be reported. Whenever the Judicial Conference refers

a name to the Attorney General under this subsection, the Judicial Conference also shall notify

the judicial council of the circuit in which the named individual serves of the referral.

(c) The President, the Vice President, the Secretary concerned, the head of each agency, the

Office of Personnel Management, a congressional ethics committee, and the Judicial Conference,

may take any appropriate personnel or other action in accordance with applicable law or regulation

against any individual failing to file a report or falsifying or failing to report information required

to be reported.

(d)(1) Any individual who files a report required to be filed under this title [5 U.S.C. app.

Sec. 101 et seq.] more than 30 days after the later of-

(A) the date such report is required to be filed pursuant to the provisions of this title [5 U.S.C.

app. Sec. 101 et seq.] and the rules and regulations promulgated thereunder; or

(B) if a filing extension is granted to such individual under section 101(g) [5 U.S.C. app.

Sec. 101(g)], the last day of the filing extension period,

shall, at the direction of and pursuant to regulations issued by the supervising ethics office, pay

a filing fee of $200. All such fees shall be deposited in the miscellaneous receipts of the Treasury.

The authority under this paragraph to direct the payment of a filing fee may be delegated by the

supervising ethics office in the executive branch to other agencies in the executive branch.

(2) The supervising ethics office may waive the filing fee under this subsection in extraordinary circumstances.

5 U.S.C. app. Sec. 105. Custody of and public access to reports

(a) Each agency, each supervising ethics office in the executive or judicial branch, the Clerk

of the House of Representatives, and the Secretary of the Senate shall make available to the public,

in accordance with subsection (b), each report filed under this title [5 U.S.C. app. Sec. 101 et

seq.] with such agency or office or with the Clerk or the Secretary of the Senate, except that-

(1) this section does not require public availability of a report filed by any individual in the

Central Intelligence Agency, the Defense Intelligence Agency, or the National Security Agency,

or any individual engaged in intelligence activities in any agency of the United States, if the President finds or has found that, due to the nature of the office or position occupied by such individual, public disclosure of such report would, be [by] revealing the identity of the individual or

other sensitive information, compromise the national interest of the United States; and such individuals may be authorized, notwithstanding section 104(a) [5 U.S.C. app. Sec. 104(a)], to file such

additional reports as are necessary to protect their identity from public disclosure if the President

first finds or has found that such filing is necessary in the national interest; and

APPENDIX B 345

(2) any report filed by an independent counsel whose identity has not been disclosed by the

division of the court under chapter 40 of title 28, United States Code, and any report filed by

any person appointed by that independent counsel under such chapter, shall not be made available

to the public under this title [5 U.S.C. app. Sec. 101 et seq.]

(b)(1) Except as provided in the second sentence of this subsection, each agency, each supervising ethics office in the executive or judicial branch, the Clerk of the House of Representatives,

and the Secretary of the Senate shall, within thirty days after any report is received under this

title [5 U.S.C. app. Sec. 101 et seq.] by such agency or office or by the Clerk or the Secretary

of the Senate, as the case may be, permit inspection of such report by or furnish a copy of such

report to any person requesting such inspection or copy. With respect to any report required to

be filed by May 15 of any year, such report shall be made available for public inspection within

30 calendar days after May 15 of such year or within 30 days of the date of filing of such a

report for which an extension is granted pursuant to section 101(g). The agency, office, Clerk,

or Secretary of the Senate, as the case may be may require a reasonable fee to be paid in any

amount which is found necessary to recover the cost of reproduction or mailing of such report

excluding any salary of any employee involved in such reproduction or mailing. A copy of such

report may be furnished without charge or at a reduced charge if it is determined that waiver or

reduction of the fee is in the public interest.

(2) Notwithstanding paragraph (1), a report may not be made available under this section to

any person nor may any copy thereof be provided under this section to any person except upon

a written application by such person stating-

(A) that person’s name, occupation and address;

(B) the name and address of any other person or organization on whose behalf the inspection

or copy is requested; and

(C) that such person is aware of the prohibitions on the obtaining or use of the report.

Any such application shall be made available to the public throughout the period during which

the report is made available to the public.

(c)(1) It shall be unlawful for any person to obtain or use a report-

(A) for any unlawful purpose;

(B) for any commercial purpose, other than by news and communications media for dissemination to the general public;

(C) for determining or establishing the credit rating of any individual; or

(D) for use, directly or indirectly, in the solicitation of money for any political, charitable,

or other purpose.

(2) The Attorney General may bring a civil action against any person who obtains or uses

a report for any purpose prohibited in paragraph (1) of this subsection. The court in which such

action is brought may assess against such person a penalty in any amount not to exceed $10,000.

Such remedy shall be in addition to any other remedy available under statutory or common law.

(d) Any report filed with or transmitted to an agency or supervising ethics office or to the

Clerk of the House of Representatives or the Secretary of the Senate pursuant to this title [5 U.S.C.

app. Sec. 101 et seq.] shall be retained by such agency or office or by the Clerk or the Secretary

of the Senate, as the case may be. Such report shall be made available to the public for a period

of six years after receipt of the report. After such 6-year period the report shall be destroyed unless

needed in an ongoing investigation, except that in the case of an individual who filed the report

pursuant to section 101(b) [5 U.S.C. app. Sec. 101(b)] and was not subsequently confirmed by

the Senate, or who filed the report pursuant to section 101(c) [5 U.S.C. app. Sec. 101(c)] and

was not subsequently elected, such reports shall be destroyed one year after the individual either

346 SENATE ETHICS MANUAL

is no longer under consideration by the Senate or is no longer a candidate for nomination or election to the Office of President, Vice President, or as a Member of Congress, unless needed in

an ongoing investigation.

5 U.S.C. app. Sec. 106. Review of reports

(a)(1) Each designated agency ethics official or Secretary concerned shall make provisions to

ensure that each report filed with him under this title [5 U.S.C. app. Sec. 101 et seq.] is reviewed

within sixty days after the date of such filing, except that the Director of the Office of Government

Ethics shall review only those reports required to be transmitted to him under this title [5 U.S.C.

app. Sec. 101 et seq.] within sixty days after the date of transmittal.

(2) Each congressional ethics committee and the Judicial Conference shall make provisions

to ensure that each report filed under this title [5 U.S.C. app. Sec. 101 et seq.] is reviewed within

sixty days after the date of such filing.

(b)(1) If after reviewing any report under subsection (a), the Director of the Office of Government Ethics, the Secretary concerned, the designated agency ethics official, a person designated

by the congressional ethics committee, or a person designated by the Judicial Conference, as the

case may be, is of the opinion that on the basis of information contained in such report the individual submitting such report is in compliance with applicable laws and regulations, he shall state

such opinion on the report, and shall sign such report.

(2) If the Director of the Office of Government Ethics, the Secretary concerned, the designated

agency ethics official, a person designated by the congressional ethics committee, or a person designated by the Judicial Conference, after reviewing any report under subsection (a)-

(A) believes additional information is required to be submitted, he shall notify the individual

submitting such report what additional information is required and the time by which it must be

submitted, or

(B) is of the opinion, on the basis of information submitted, that the individual is not in compliance with applicable laws and regulations, he shall notify the individual, afford a reasonable

opportunity for a written or oral response, and after consideration of such response, reach an opinion as to whether or not, on the basis of information submitted, the individual is in compliance

with such laws and regulations. (3) If the Director of the Office of Government Ethics, the Secretary concerned, the designated agency ethics official, a person designated by a congressional ethics committee, or a person designated by the Judicial Conference, reaches an opinion under paragraph (2)(B) that an individual is not in compliance with applicable laws and regulations, the official or committee shall notify the individual of that opinion and, after an opportunity for personal

consultation (if practicable), determine and notify the individual of which steps, if any, would in

the opinion of such official or committee be appropriate for assuring compliance with such laws

and regulations and the date by which such steps should be taken. Such steps may include, as

appropriate-

(A) divestiture,

(B) restitution,

(C) the establishment of a blind trust,

(D) request for an exemption under section 208(b) of title 18, United States Code, or

(E) voluntary request for transfer, reassignment, limitation of duties, or resignation.

The use of any such steps shall be in accordance with such rules or regulations as the supervising

ethics office may prescribe.

(4) If steps for assuring compliance with applicable laws and regulations are not taken by

the date set under paragraph (3) by an individual in a position in the executive branch (other than

APPENDIX B 347

in the Foreign Service or the uniformed services), appointment to which requires the advice and

consent of the Senate, the matter shall be referred to the President for appropriate action.

(5) If steps for assuring compliance with applicable laws and regulations are not taken by

the date set under paragraph (3) by a member of the Foreign Service or the uniformed services,

the Secretary concerned shall take appropriate action.

(6) If steps for assuring compliance with applicable laws and regulations are not taken by

the date set under paragraph (3) by any other officer or employee, the matter shall be referred

to the head of the appropriate agency, the congressional ethics committee, or the Judicial Conference, for appropriate action; except that in the case of the Postmaster General or Deputy Postmaster General, the Director of the Office of Government Ethics shall recommend to the Governors of the Board of Governors of the United States Postal Service the action to be taken.

(7) Each supervising ethics office may render advisory opinions interpreting this title [5 U.S.C.

app. Sec. 101 et seq.] within its respective jurisdiction. Notwithstanding any other provision of

law, the individual to whom a public advisory opinion is rendered in accordance with this paragraph, and any other individual covered by this title [5 U.S.C. app. Sec. 101 et seq.] who is involved in a fact situation which is indistinguishable in all material aspects, and who acts in good

faith in accordance with the provisions and findings of such advisory opinion shall not, as a result

of such act, be subject to any penalty or sanction provided by this title [5 U.S.C. app. Sec. 101

et seq.]

5 U.S.C. app. Sec. 107. Confidential reports and other additional requirements

(a)(1) Each supervising ethics office may require officers and employees under its jurisdiction

(including special Government employees as defined in section 202 of title 18, United States Code)

to file confidential financial disclosure reports, in such form as the supervising ethics office may

prescribe. The information required to be reported under this subsection by the officers and employees of any department or agency shall be set forth in rules or regulations prescribed by the

supervising ethics office, and may be less extensive than otherwise required by this title [5 U.S.C.

app. Sec. 101 et seq.], or more extensive when determined by the supervising ethics office to be

necessary and appropriate in light of sections 202 through 209 of title 18, United States Code,

regulations promulgated thereunder, or the authorized activities of such officers or employees. Any

individual required to file a report pursuant to section 101 [5 U.S.C. app. Sec. 101] shall not be

required to file a confidential report pursuant to this subsection, except with respect to information

which is more extensive than information otherwise required by this title [5 U.S.C. app. Sec. 101

et seq.] Subsections (a), (b), and (d) of section 105 [5 U.S.C. app. Sec. 105(a), (b), (d)] shall

not apply with respect to any such report.

(2) Any information required to be provided by an individual under this subsection shall be

confidential and shall not be disclosed to the public.

(3) Nothing in this subsection exempts any individual otherwise covered by the requirement

to file a public financial disclosure report under this title [5 U.S.C. app. Sec. 101 et seq.] from

such requirement.

(b) The provisions of this title [5 U.S.C. app. Sec. 101 et seq.] requiring the reporting of information shall supersede any general requirement under any other provision of law or regulation

with respect to the reporting of information required for purposes of preventing conflicts of interest

or apparent conflicts of interest. Such provisions of this title [5 U.S.C. app. Sec. 101 et seq.] shall

not supersede the requirements of section 7342 of title 5, United States Code.

(c) Nothing in this Act requiring reporting of information shall be deemed to authorize the

receipt of income, gifts, or reimbursements; the holding of assets, liabilities, or positions; or the

participation in transactions that are prohibited by law, Executive order, rule, or regulation.

348 SENATE ETHICS MANUAL

5 U.S.C. app. Sec. 108. Authority of Comptroller General

(a) The Comptroller General shall have access to financial disclosure reports filed under this

title [5 U.S.C. app. Sec. 101 et seq.] for the purposes of carrying out his statutory responsibilities.

(b) No later than December 31, 1992, and regularly thereafter, the Comptroller General shall

conduct a study to determine whether the provisions of this title are being carried out effectively.

5 U.S.C. app. Sec. 109. Definitions

For the purposes of this title [5 U.S.C. app. Sec. 101 et seq.], the term-

(1) ‘‘congressional ethics committees’’ means the Select Committee on Ethics of the Senate

and the Committee on Standards of Official Conduct of the House of Representatives;

(2) ‘‘dependent child’’ means, when used with respect to any reporting individual, any individual who is a son, daughter, stepson, or stepdaughter and who-

(A) is unmarried and under age 21 and is living in the household of such reporting individual; or

(B) is a dependent of such reporting individual within the meaning of section 152 of the

Internal Revenue Code of 1986 [26 U.S.C. Sec. 152];

(3) ‘‘designated agency ethics official’’ means an officer or employee who is designated to

administer the provisions of this title within an agency;

(4) ‘‘executive branch’’ includes each Executive agency (as defined in section 105 of title

5, United States Code), other than the General Accounting Office, and any other entity or administrative unit in the executive branch;

(5) ‘‘gift’’ means a payment, advance, forbearance, rendering, or deposit of money, or any

thing of value, unless consideration of equal or greater value is received by the donor, but does

not include-

(A) bequest and other forms of inheritance;

(B) suitable mementos of a function honoring the reporting individual;

(C) food, lodging, transportation, and entertainment provided by a foreign government

within a foreign country or by the United States Government, the District of Columbia, or

a State or local government or political subdivision thereof;

(D) food and beverages which are not consumed in connection with a gift of overnight

lodging;

(E) communications to the offices of a reporting individual, including subscriptions to

newspapers and periodicals; or

(F) consumable products provided by home-State businesses to the offices of a reporting

individual who is an elected official, if those products are intended for consumption by persons other than such reporting individual;

(6) ‘‘honoraria’’ has the meaning given such term in section 505 of this Act [5 U.S.C. app.

Sec. 505];

(7) ‘‘income’’ means all income from whatever source derived, including but not limited to

the following items: compensation for services, including fees, commissions, and similar items;

gross income derived from business (and net income if the individual elects to include it); gains

derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life

insurance and endowment contracts; pensions; income from discharge of indebtedness; distributive

share of partnership income; and income from an interest in an estate or trust;

APPENDIX B 349

(8) ‘‘judicial employee’’ means any employee of the judicial branch of the Government, of

the United States Sentencing Commission, of the Tax Court, of the Claims Court, of the Court

of Veterans Appeals, or of the United States Court of Military Appeals, who is not a judicial officer and who is authorized to perform adjudicatory functions with respect to proceedings in the

judicial branch, or who occupies a position for which the rate of basic pay is equal to or greater

than 120 percent of the minimum rate of basic pay payable for GS–15 of the General Schedule;

(9) ‘‘Judicial Conference’’ means the Judicial Conference of the United States;

(10) ‘‘judicial officer’’ means the Chief Justice of the United States, the Associate Justices

of the Supreme Court, and the judges of the United States courts of appeals, United States district

courts, including the district courts in Guam, the Northern Mariana Islands, and the Virgin Islands,

Court of Appeals for the Federal Circuit, Court of International Trade, Tax Court, Claims Court,

Court of Veterans Appeals, United States Court of Military Appeals, and any court created by

Act of Congress, the judges of which are entitled to hold office during good behavior;

(11) ‘‘legislative branch’’ includes-

(A) the Architect of the Capitol;

(B) the Botanical Gardens;

(C) the Congressional Budget Office;

(D) the General Accounting Office;

(E) the Government Printing Office;

(F) the Library of Congress;

(G) the United States Capitol Police;

(H) the Office of Technology Assessment; and

(I) any other agency, entity, office or commission established in the legislative branch;

(12) ‘‘Member of Congress’’ means a United States Senator, a Representative in Congress,

a Delegate to Congress, or the Resident Commissioner from Puerto Rico;

(13) ‘‘officer or employee of the Congress’’ means-

(A) any individual described under subparagraph (B), other than a Member of Congress

or the Vice President, whose compensation is disbursed by the Secretary of the Senate or the

Clerk of the House of Representatives;

(B)(i) each officer or employee of the legislative branch who, for at least 60 days, occupies a position for which the rate of basic pay is equal to or greater than 120 percent of the

minimum rate of basic pay payable for GS–15 of the General Schedule; and

(ii) at least one principal assistant designated for purposes of this paragraph by each

Member who does not have an employee who occupies a position for which the rate of basic

pay is equal to or greater than 120 percent of the minimum rate of basic pay payable for

GS–15 of the General Schedule;

(14) ‘‘personal hospitality of any individual’’ means hospitality extended for a nonbusiness

purpose by an individual, not a corporation or organization, at the personal residence of that individual or his family or on property or facilities owned by that individual or his family;

(15) ‘‘reimbursement’’ means any payment or other thing of value received by the reporting

individual, other than gifts, to cover travel-related expenses of such individual other than those

which are-

(A) provided by the United States Government, the District of Columbia, or a State or

local government or political subdivision thereof;

350 SENATE ETHICS MANUAL

(B) required to be reported by the reporting individual under section 7342 of title 5,

United States Code; or

(C) required to be reported under section 304 of the Federal Election Campaign Act of

1971 (2 U.S.C. Sec. 434);

(16) ‘‘relative’’ means an individual who is related to the reporting individual, as father, mother, son, daughter, brother, sister, uncle, aunt, great aunt, great uncle, first cousin, nephew, niece,

husband, wife, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law,

son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, or who is the grandfather or grandmother

of the spouse of the reporting individual, and shall be deemed to include the fiance or fiancee

of the reporting individual;

(17) ‘‘Secretary concerned’’ has the meaning set forth in section 101(8) of title 10, United

States Code, and, in addition, means-

(A) the Secretary of Commerce, with respect to matters concerning the National Oceanic

and Atmospheric Administration;

(B) the Secretary of Health and Human Services, with respect to matters concerning the

Public Health Service; and

(C) the Secretary of State, with respect to matters concerning the Foreign Service;

(18) ‘‘supervising ethics office’’ means-

(A) the Select Committee on Ethics of the Senate, for Senators, officers and employees

of the Senate, and other officers or employees of the legislative branch required to file financial disclosure reports with the Secretary of the Senate pursuant to section 103(h) of this title

[5 U.S.C. app. Sec. 103(h)];

(B) the Committee on Standards of Official Conduct of the House of Representatives, for

Members, officers and employees of the House of Representatives and other officers or employees of the legislative branch required to file financial disclosure reports with the Clerk

of the House of Representatives pursuant to section 103(h) of this title [5 U.S.C. app. Sec.

103(h)];

(C) the Judicial Conference for judicial officers and judicial employees; and

(D) the Office of Government Ethics for all executive branch officers and employees; and

(19) ‘‘value’’ means a good faith estimate of the dollar value if the exact value is neither

known nor easily obtainable by the reporting individual.

5 U.S.C. app. Sec. 110. Notice of actions taken to comply with ethics agreements

(a) In any case in which an individual agrees with that individual’s designated agency ethics

official, the Office of Government Ethics, a Senate confirmation committee, a congressional ethics

committee, or the Judicial Conference, to take any action to comply with this Act or any other

law or regulation governing conflicts of interest of, or establishing standards of conduct applicable

with respect to, officers or employees of the Government, that individual shall notify in writing

the designated agency ethics official, the Office of Government Ethics, the appropriate committee

of the Senate, the congressional ethics committee, or the Judicial Conference, as the case may

be, of any action taken by the individual pursuant to that agreement. Such notification shall be

made not later than the date specified in the agreement by which action by the individual must

be taken, or not later than three months after the date of the agreement, if no date for action is

so specified.

(b) If an agreement described in subsection (a) requires that the individual recuse himself or

herself from particular categories of agency or other official action, the individual shall reduce

APPENDIX B 351

to writing those subjects regarding which the recusal agreement will apply and the process by

which it will be determined whether the individual must recuse himself or herself in a specific

instance. An individual shall be considered to have complied with the requirements of subsection

(a) with respect to such recusal agreement if such individual files a copy of the document setting

forth the information described in the preceding sentence with such individual’s designated agency

ethics official or the appropriate supervising ethics office within the time prescribed in the last

sentence of subsection (a).

5 U.S.C. app. Sec. 111. Administration of provisions

The provisions of this title [5 U.S.C. app. Sec. 101 et seq.] shall be administered by-

(1) the Director of the Office of Government Ethics, the designated agency ethics official,

or the Secretary concerned, as appropriate, with regard to officers and employees described in

paragraphs (1) through (8) of section 101(f) [5 U.S.C. app. Sec. 101(f)(1)-(8)];

(2) the Select Committee on Ethics of the Senate and the Committee on Standards of Official

Conduct of the House of Representatives, as appropriate, with regard to officers and employees

described in paragraphs (9) and (10) of section 101(f) [5 U.S.C. app Sec. 101(f)(9), (10)]; and

(3) the Judicial Conference in the case of an officer or employee described in paragraphs (11)

and (12) of section 101(f) [5 U.S.C. app. Sec. 101(f)(11), (12)].

The Judicial Conference may delegate any authority it has under this title [5 U.S.C. app. Sec. 101

et seq.] to an ethics committee established by the Judicial Conference.

5 U.S.C. app. Sec. 112

[Sec. 112 was repealed by P.L. 101–280, Sec. 3(10)(A), May 4, 1990, 104 Stat. 157.]

[Titles II and III were repealed by P.L. 101–194, Sec. 201, Nov. 30, 1989, 103 Stat. 1724.]

(352)

APPENDIX C

(353)

RULES OF PROCEDURE

SELECT COMMITTEE ON ETHICS

ADOPTED FEBRUARY 23, 1978

Revised November 1999

(S. Prt. 106–49)

SELECT COMMITTEE ON ETHICS

Pat Roberts, Kansas, Chairman

Harry Reid, Nevada, Vice Chairman

Bob Smith, New Hampshire

George Voinovich, Ohio

Kent Conrad, North Dakota

Richard Durbin, Illinois

Victor Baird, Staff Director and Chief Counsel

Annette Gillis, Chief Clerk

(354)

CONTENTS

Part I. Organic Authority ................................................................................................. 356

Subpart A. S. Res. 338, as Amended ........................................................................ 356

Subpart B. Public Law 93–191, Franked Mail Provisions Relating to the Select

Committee ............................................................................................... 362

Subpart C. Standing Orders of the Senate Regarding Unauthorized Disclosure

of Intelligence Information, S. Res. 400, 94th Congress, Provisions

Relating to the Select Committee on Ethics ........................................ 363

Subpart D. Public Law 94–105, section 515, Relating to Receipt and

Disposition of Foreign Gifts and decorations Received by Members,

Officers, and Employees of the Senate or Their Spouses or

Dependents, Provisions Relating to the Select Committee on Ethics 363

Part II. Supplementary Procedural Rules ...................................................................... 363

Rule 1. General Procedures ...................................................................................... 367

Rule 2. Procedures for Complaints, Allegations, or Information ........................... 371

Rule 3. Procedures on Receipt of Allegations Other than a Sworn Complaint;

Preliminary Inquiry ...................................................................................... 371

Rule 4. Procedures for Conducting an Adjudicatory Review .................................. 373

Rule 5. Procedures for Hearings ............................................................................... 374

Rule 6. Subpoenas and Depositions ......................................................................... 378

Rule 7. Violations of Law; Perjury; Legislative Recommendations; and

Applicable Rules and Standards of Conduct .............................................. 379

Rule 8. Procedures for Handling Committee Sensitive and Classified Materials 380

Rule 9. Broadcasting and News Coverage of Committee Proceedings .................. 382

Rule 10. Procedures for Advisory Opinions ............................................................. 382

Rule 11. Procedures for Interpretative Rules .......................................................... 383

Rule 12. Procedures for Complaints Involving Improper Use of the Mailing

Frank ........................................................................................................... 384

Rule 13. Procedures for Waivers .............................................................................. 385

Rule 14. Definition of ‘‘Officer or Employee’’ ........................................................... 385

Rule 15. Committee Staff .......................................................................................... 386

Rule 16. Changes in Supplementary Procedural Rules .......................................... 387

Part III. Subject Matter Jurisdiction .............................................................................. 387

Page

355

Appendix A—Open and Closed Meetings ................................................................... 388

Appendix B—Supervisor Defined ................................................................................ 389

Revisions ....................................................................................................................... 390

356

1 As amended by S. Res. 4, 95th Cong., 1st Sess. (1977), S. Res. 110, 95th Cong., 1st Sess. (1977), S. Res. 204,

95th Cong., 1st Sess. (1977), S. Res. 230, 95th Cong., 1st Sess. (1977), S. Res. 312, 95th Cong., 1st Sess. (1977),

S. Res. 271, 96th Cong., 1st Sess. (1979), S. Res. 78, 97th Cong., 1st Sess. (1981). Brackets reflect renumbering of

paragraphs in Senate Rule XXXVII effected by S. Res. 236, 101st Cong., 2d Sess. (1990). Amended by S. Res. 222,

106th Cong., 1st Sess. (1999). The amendments made by S. Res. 222, Senate Ethics Procedure Reform Resolution of

1999, shall take effect on November 5, 1999, except that the amendments shall not apply with respect to further proceedings in any preliminary inquiry, initial review, or investigation commenced before November 5, 1999, under Senate

Resolution 338, agreed to July 24, 1964. 2 Subsection (c) was amended by S. Res. 222, 106th Cong., 1st Sess. (1999).

3 Subsection 3 was amended by S. Res. 78, 97th Cong., 1st Sess. (1981).

RULES OF THE SELECT COMMITTEE ON ETHICS

PART I: ORGANIC AUTHORITY

SUBPART A—S. RES. 338 AS AMENDED

S. Res. 338, 88th Cong., 2d Sess. (1964) 1

Resolved, That (a) there is hereby established a permanent select committee of the Senate to

be known as the Select Committee on Ethics (referred to hereinafter as the ‘‘Select Committee’’)

consisting of six Members of the Senate, of whom three shall be selected from members of the

majority party and three shall be selected from members of the minority party. Members thereof

shall be appointed by the Senate in accordance with the provisions of Paragraph 1 of Rule XXIV

of the Standing Rules of the Senate at the beginning of each Congress. For purposes of paragraph

4 of Rule XXV of the Standing Rules of the Senate, service of a Senator as a member or chairman

of the Select Committee shall not be taken into account.

(b) Vacancies in the membership of the Select Committee shall not affect the authority of

the remaining members to execute the functions of the committee, and shall be filled in the same

manner as original appointments thereto are made.

(c)(1) A majority of the members of the Select Committee shall constitute a quorum for the

transaction of business involving complaints or allegations of, or information about, misconduct,

including resulting preliminary inquiries, adjudicatory reviews, recommendations or reports, and

matters relating to Senate Resolution 400, agreed to May 19, 1976.2

(2) Three members shall constitute a quorum for the transaction of routine business of the

Select Committee not covered by the first paragraph of this subparagraph, including requests for

opinions and interpretations concerning the Code of Official Conduct or any other statute or regulation under the jurisdiction of the Select Committee, if one member of the quorum is a member

of the majority Party and one member of the quorum is a member of the minority Party. During

the transaction of routine business any member of the Select Committee constituting the quorum

shall have the right to postpone further discussion of a pending matter until such time as a majority

of the members of the Select Committee are present.

(3) The Select Committee may fix a lesser number as a quorum for the purpose of taking

sworn testimony.3

(d)(1) A member of the Select Committee shall be ineligible to participate in—

(A) any preliminary inquiry or adjudicatory review relating to—

(i) the conduct of—

(I) such member;

APPENDIX C 357

4 Subsection d (1)–(3) was added by S. Res. 110, § 203, 95th Cong., 1st Sess. (1977) and amended by S. Res.

222, 106th Cong., 1st Sess. (1999).

5Reference to Senate Code of Official Conduct was added by S. Res. 110, § 201, 95th Cong., 1st Sess. (1977).

(II) any officer or employee the member supervises; or

(III) any employee of any officer the member supervises; or

(ii) any complaint filed by the member; and

(B) the determinations and recommendations of the Select Committee with respect to any

preliminary inquiry or adjudicatory review described in subparagraph (A).

For purposes of this paragraph, a member of the Select Committee and an officer of the Senate shall be deemed to supervise any officer or employee consistent with the provision of paragraph 12 of Rule XXXVII of the Standing Rules of the Senate.

(2) A member of the Select Committee may, at the discretion of the member, disqualify himself or herself from participating in any preliminary inquiry or adjudicatory review pending before

the Select Committee and the determinations and recommendations of the Select Committee with

respect to any such preliminary inquiry or adjudicatory review. Notice of such disqualification

shall be given in writing to the President of the Senate.

(3) Whenever any member of the Select Committee is ineligible under paragraph (1) to participate in any preliminary inquiry or adjudicatory review or disqualifies himself or herself under

paragraph (2) from participating in any preliminary inquiry or adjudicatory review, another Senator

shall, subject to the provisions of subsection (d), be appointed to serve as a member of the Select

Committee solely for purposes of such preliminary inquiry or adjudicatory review and the determinations and recommendations of the Select Committee with respect to such preliminary inquiry

or adjudicatory review. Any Member of the Senate appointed for such purposes shall be of the

same party as the Member who is ineligible or disqualifies himself or herself.4

Sec. 2. (a) It shall be the duty of the Select Committee to—

(1) receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct 5

and violations of rules and regulations of the Senate, relating to the conduct of individuals

in the performance of their duties as Members of the Senate, or as officers or employees of

the Senate, and to make appropriate findings of fact and conclusions with respect thereto;

(2)(A) recommend to the Senate by report or resolution by a majority vote of the full

committee disciplinary action to be taken with respect to such violations which the Select

Committee shall determine, after according to the individual concerned due notice and opportunity for a hearing, to have occurred;

(B) pursuant to subparagraph (A) recommend discipline, including—

(i) in the case of a Member, a recommendation to the Senate for expulsion, censure,

payment of restitution, recommendation to a Member’s party conference regarding the Member’s seniority or positions of responsibility, or a combination of these; and

(ii) in the case of an officer or employee, dismissal, suspension, payment of restitution, or a combination of these;

(3) subject to the provisions of subsection (e), by a unanimous vote of 6 members,

order that a Member, officer, or employee be reprimanded or pay restitution, or both, if the

Select Committee determines, after according to the Member, officer, or employee due notice

and opportunity for a hearing, that misconduct occurred warranting discipline less serious than

discipline by the full Senate;

358 SENATE ETHICS MANUAL

(4) in the circumstances described in subsection (d)(3), issue a public or private letter

of admonition to a Member, officer, or employee, which shall not be subject to appeal to

the Senate;

(5) recommend to the Senate, by report or resolution, such additional rules or regulations as the Select Committee shall determine to be necessary or desirable to insure proper

standards of conduct by Members of the Senate, and by officers or employees of the Senate,

in the performance of their duties and the discharge of their responsibilities;

(6) by a majority vote of the full committee, report violations of any law, including

the provision of false information to the Select Committee, to the proper Federal and State

authorities; and

(7) develop and implement programs and materials designed to educate Members, officers, and employees about the laws, rules, regulations, and standards of conduct applicable

to such individuals in the performance of their duties.

(b) For the purposes of this resolution—

(1) the term ‘‘sworn complaint’’ means a written statement of facts, submitted under penalty

of perjury, within the personal knowledge of the complainant alleging a violation of law, the Senate Code of Official Conduct, or any other rule or regulation of the Senate relating to the conduct

of individuals in the performance of their duties as Members, officers, or employees of the Senate;

(2) the term ‘‘preliminary inquiry’’ means a proceeding undertaken by the Select Committee

following the receipt of a complaint or allegation of, or information about, misconduct by a Member, officer, or employee of the Senate to determine whether there is substantial credible evidence

which provides substantial cause for the Select Committee to conclude that a violation within the

jurisdiction of the Select Committee has occurred; and

(3) the term ‘‘adjudicatory review’’ means a proceeding undertaken by the Select Committee

after a finding, on the basis of a preliminary inquiry, that there is substantial credible evidence

which provides substantial cause for the Select Committee to conclude that a violation within the

jurisdiction of the Select Committee has occurred.

(c)(1) No—

(A) adjudicatory review of conduct of a Member or officer of the Senate may be conducted;

(B) report, resolution, or recommendation relating to such an adjudicatory review of conduct may be made; and

(C) letter of admonition pursuant to subsection (d)(3) may be issued, unless approved by

the affirmative recorded vote of no fewer than 4 members of the Select Committee.

(2) No other resolution, report, recommendation, interpretative ruling, or advisory opinion may

be made without an affirmative vote of a majority of the Members of the Select Committee voting.

(d)(1) When the Select Committee receives a sworn complaint or other allegation or information about a Member, officer, or employee of the Senate, it shall promptly conduct a preliminary

inquiry into matters raised by that complaint, allegation, or information. The preliminary inquiry

shall be of duration and scope necessary to determine whether there is substantial credible evidence which provides substantial cause for the Select Committee to conclude that a violation within the jurisdiction of the Select Committee has occurred. The Select Committee may delegate to

the chairman and vice chairman the discretion to determine the appropriate duration, scope, and

conduct of a preliminary inquiry.

(2) If, as a result of a preliminary inquiry under paragraph (1), the Select Committee determines by a recorded vote that there is not such substantial credible evidence, the Select Committee

shall dismiss the matter. The Select Committee may delegate to the chairman and vice chairman

APPENDIX C 359

6 Subsections (b)–(h) were added by and subsection (i) was amended by S. Res. 110, § 202, 95th Cong., 1st Sess.

(1977). Subsections (a)–(e) and (g)–(h) were amended by S. Res. 222, 106th Cong., 1st Sess. (1999).

the authority, on behalf of the Select Committee, to dismiss any matter that they determine, after

a preliminary inquiry, lacks substantial merit. The Select Committee shall inform the individual

who provided to the Select Committee the complaint, allegation, or information, and the individual

who is the subject of the complaint, allegation, or information, of the dismissal, together with an

explanation of the basis for the dismissal.

(3) If, as a result of a preliminary inquiry under paragraph (1), the Select Committee determines that a violation is inadvertent, technical, or otherwise of a de minimis nature, the Select

Committee may dispose of the matter by issuing a public or private letter of admonition, which

shall not be considered discipline. The Select Committee may issue a public letter of admonition

upon a similar determination at the conclusion of an adjudicatory review.

(4) If, as a result of a preliminary inquiry under paragraph (1), the Select Committee determines that there is such substantial credible evidence and the matter cannot be appropriately disposed of under paragraph (3), the Select Committee shall promptly initiate an adjudicatory review.

Upon the conclusion of such adjudicatory review, the Select Committee shall report to the Senate,

as soon as practicable, the results of such adjudicatory review, together with its recommendations

(if any) pursuant to subsection (a)(2).

(e)(1) Any individual who is the subject of a reprimand or order of restitution, or both, pursuant to subsection (a)(3) may, within 30 days of the Select Committee’s report to the Senate of

its action imposing a reprimand or order of restitution, or both, appeal to the Senate by providing

written notice of the basis for the appeal to the Select Committee and the presiding officer of

the Senate. The presiding officer of the Senate shall cause the notice of the appeal to be printed

in the Congressional Record and the Senate Journal.

(2) A motion to proceed to consideration of an appeal pursuant to paragraph (1) shall be highly privileged and not debatable. If the motion to proceed to consideration of the appeal is agreed

to, the appeal shall be decided on the basis of the Select Committee’s report to the Senate. Debate

on the appeal shall be limited to 10 hours, which shall be divided equally between, and controlled

by, those favoring and those opposing the appeal.

(f) The Select Committee may, in its discretion, employ hearing examiners to hear testimony

and make findings of fact and/or recommendations to the Select Committee concerning the disposition of complaints.

(g) Notwithstanding any other provision of this section, no adjudicatory review shall be initiated of any alleged violation of any law, the Senate Code of Official Conduct, rule, or regulation

which was not in effect at the time the alleged violation occurred. No provisions of the Senate

Code of Official Conduct shall apply to or require disclosure of any act, relationship, or transaction

which occurred prior to the effective date of the applicable provision of the Code. The Select

Committee may initiate an adjudicatory review of any alleged violation of a rule or law which

was in effect prior to the enactment of the Senate Code of Official Conduct if the alleged violation

occurred while such rule or law was in effect and the violation was not a matter resolved on the

merits by the predecessor Select Committee.

(h) The Select Committee shall adopt written rules setting forth procedures to be used in conducting preliminary inquiries and adjudicatory reviews.

(i) The Select Committee from time to time shall transmit to the Senate its recommendation

as to any legislative measures which it may consider to be necessary for the effective discharge

of its duties.6

Sec. 3. (a) The Select Committee is authorized to (1) make such expenditures; (2) hold such

hearings; (3) sit and act at such times and places during the sessions, recesses, and adjournment

360 SENATE ETHICS MANUAL

7 Paragraph 7 was amended by S. Res. 110, § 204, 95th Cong., 1st Sess. (1977).

8 Paragraph 8 was added by S. Res. 230, 95th Cong., 1st Sess. (1977).

9 Subsection (b)(1) was added by S. Res. 110 § 204, 95th Cong., 1st Sess. (1977).

10 Subsection (b)(2) was amended by S. Res. 222, 106th Cong., 1st Sess. (1999).

11 Subsection (c) was added by S. Res. 110, § 204, 95th Cong., 1st Sess., (1977).

12 Subsection (d) was added by S. Res. 312, 95th Cong., 1st Sess. (1977) and was amended by S. Res. 222, 106th

Cong., 1st Sess. (1999).

periods of the Senate; (4) require by subpoena or otherwise the attendance of such witnesses and

the production of such correspondence, books, papers, and documents; (5) administer such oaths;

(6) take such testimony orally or by deposition; (7) employ and fix the compensation of a staff

director, a counsel, an assistant counsel, one or more investigators, one or more hearing examiners 7, and such technical, clerical, and other assistants and consultants as it deems advisable; and

(8) to procure the temporary services (not in excess of one year) or intermittent services of individual consultants, or organizations thereof, by contract as independent contractors or, in the case

of individuals, by employment at daily rates of compensation not in excess of the per diem equivalent of the highest rate of compensation which may be paid to a regular employee of the Select

Committee.8

(b)(1) The Select Committee is authorized to retain and compensate counsel not employed by

the Senate (or by any department or agency of the executive branch of the Government) whenever

the Select Committee determines that the retention of outside counsel is necessary or appropriate

for any action regarding any complaint or allegation, which, in the determination of the Select

Committee is more appropriately conducted by counsel not employed by the Government of the

United States as a regular employee.9

(2) Any adjudicatory review as defined in section 2(b)(3) shall be conducted by outside counsel as authorized in paragraph (1), unless the Select Committee determines not to use outside counsel.10

(c) With the prior consent of the department or agency concerned, the Select Committee may

(1) utilize the services, information and facilities of any such department or agency of the Government, and (2) employ on a reimbursable basis or otherwise the services of such personnel of any

such department or agency as it deems advisable. With the consent of any other committee of

the Senate, or any subcommittee thereof, the Select Committee may utilize the facilities and the

services of the staff of such other committee or subcommittee whenever the chairman of the Select

Committee determines that such action is necessary and appropriate.11

(d)(1) Subpoenas may be authorized by—

(A) the Select Committee; or

(B) the chairman and vice chairman, acting jointly.

(2) Any such subpoena shall be issued and signed by the chairman and the vice chairman

and may be served by any person designated by the chairman and vice chairman.

(3) The chairman or any member of the Select Committee may administer oaths to witnesses.12

(e)(1) The Select Committee shall prescribe and publish such regulations as it feels are necessary to implement the Senate Code of Official Conduct.

(2) The Select Committee is authorized to issue interpretative rulings explaining and clarifying

the application of any law, the Code of Official Conduct, or any rule or regulation of the Senate

within its jurisdiction.

(3) The Select Committee shall render an advisory opinion, in writing within a reasonable

time, in response to a written request by a Member or officer of the Senate or a candidate for

nomination for election, or election to the Senate, concerning the application of any law, the SenVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00374 Fmt 5222 Sfmt 5222 SMANUAL.012 ETHICS1 PsN: ETHICS1
APPENDIX C 361

13 Subsection was added by S. Res. 110, § 206, 95th Cong., 1st Sess. (1977).

ate Code of Official Conduct, or any rule or regulation of the Senate within its jurisdiction to

a specific factual situation pertinent to the conduct or proposed conduct of the person seeking the

advisory opinion.

(4) The Select Committee may in its discretion render an advisory opinion in writing within

a reasonable time in response to a written request by any employee of the Senate concerning the

application of any law, the Senate Code of Official Conduct, or any rule or regulation of the Senate within its jurisdiction to a specific factual situation pertinent to the conduct or proposed conduct of the person seeking the advisory opinion.

(5) Notwithstanding any provision of the Senate Code of Official Conduct or any rule or regulation of the Senate, any person who relies upon any provision or finding of an advisory opinion

in accordance with the provisions of paragraphs (3) and (4) and who acts in good faith in accordance with the provisions and findings of such advisory opinion shall not, as a result of any such

act, be subject to any sanction by the Senate.

(6) Any advisory opinion rendered by the Select Committee under paragraphs (3) and (4) may

be relied upon by (A) any person involved in the specific transaction or activity with respect to

which such advisory opinion is rendered: Provided, however, that the request for such advisory

opinion included a complete and accurate statement of the specific factual situation; and, (B) any

person involved in any specific transaction or activity which is indistinguishable in all its material

aspects from the transaction or activity with respect to which such advisory opinion is rendered.

(7) Any advisory opinion issued in response to a request under paragraph (3) or (4) shall be

printed in the Congressional Record with appropriate deletions to assure the privacy of the individual concerned. The Select Committee shall, to the extent practicable, before rendering an advisory opinion, provide any interested party with an opportunity to transmit written comments to

the Select Committee with respect to the request for such advisory opinion. The advisory opinions

issued by the Select Committee shall be compiled, indexed, reproduced, and made available on

a periodic basis.

(8) A brief description of a waiver granted under paragraph 2(c) [NOTE: Now Paragraph 1]

of Rule XXXIV or paragraph 1 of Rule XXXV of the Standing Rules of the Senate shall be made

available upon request in the Select Committee office with appropriate deletions to assure the privacy of the individual concerned.13

Sec. 4. The expenses of the Select Committee under this resolution shall be paid from the

contingent fund of the Senate upon vouchers approved by the chairman of the Select Committee.

Sec. 5. As used in this resolution, the term ‘‘officer or employee of the Senate’’ means—

(1) an elected officer of the Senate who is not a Member of the Senate;

(2) an employee of the Senate, any committee or subcommittee of the Senate, or any

Member of the Senate;

(3) the Legislative Counsel of the Senate or any employee of his office;

(4) an Official Reporter of Debates of the Senate and any person employed by the Official Reporters of Debates of the Senate in connection with the performance of their official

duties;

(5) a Member of the Capitol Police force whose compensation is disbursed by the Secretary of the Senate;

(6) an employee of the Vice President if such employee’s compensation is disbursed

by the Secretary of the Senate; and

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(7) an employee of a joint committee of the Congress whose compensation is disbursed

by the Secretary of the Senate.

SUBPART B—PUBLIC LAW 93–191—FRANKED MAIL, PROVISIONS

RELATING TO THE SELECT COMMITTEE

Sec. 6. (a) The Select Committee on Standards and Conduct of the Senate [NOTE: Now the

Select Committee on Ethics] shall provide guidance, assistance, advice and counsel, through advisory opinions or consultations, in connection with the mailing or contemplated mailing of franked

mail under section 3210, 3211, 3212, 3218(2) or 3218, and in connection with the operation of

section 3215, of title 39, United States Code, upon the request of any Member of the Senate or

Member-elect, surviving spouse of any of the foregoing, or other Senate official, entitled to send

mail as franked mail under any of those sections. The select committee shall prescribe regulations

governing the proper use of the franking privilege under those sections by such persons.

(b) Any complaint filed by any person with the select committee that a violation of any section of title 39, United State Code, referred to in subsection (a) of this section is about to occur

or has occurred within the immediately preceding period of 1 year, by any person referred to in

such subsection (a), shall contain pertinent factual material and shall conform to regulations prescribed by the select committee. The select committee, if it determines there is reasonable justification for the complaint, shall conduct an investigation of the matter, including an investigation of

reports and statements filed by that complainant with respect to the matter which is the subject

of the complaint. The committee shall afford to the person who is the subject of the complaint

due notice and, if it determines that there is substantial reason to believe that such violation has

occurred or is about to occur, opportunity for all parties to participate in a hearing before the select

committee. The select committee shall issue a written decision on each complaint under this subsection not later than thirty days after such a complaint has been filed or, if a hearing is held,

not later than thirty days after the conclusion of such hearing. Such decision shall be based on

written findings of fact in the case by the select committee. If the select committee finds, in its

written decision, that a violation has occurred or is about to occur, the committee may take such

action and enforcement as it considers appropriate in accordance with applicable rules, precedents,

and standing orders of the Senate, and such other standards as may be prescribed by such committee.

(c) Notwithstanding any other provision of law, no court or administrative body in the United

States or in any territory thereof shall have jurisdiction to entertain any civil action of any character concerning or related to a violation of the franking laws or an abuse of the franking privilege

by any person listed under subsection (a) of this section as entitled to send mail as franked mail,

until a complaint has been filed with the select committee and the committee has rendered a decision under subsection (b) of this section.

(d) The select committee shall prescribe regulations for the holding of investigations and hearings, the conduct of proceedings, and the rendering of decisions under this subsection providing

for equitable procedures and the protection of individual, public, and Government interests. The

regulations shall, insofar as practicable, contain the substance of the administrative procedure provisions of sections 551–559 and 701–706, of title 5, United States Code. These regulations shall

govern matters under this subsection subject to judicial review thereof.

(e) The select committee shall keep a complete record of all its actions, including a record

of the votes on any question on which a record vote is demanded. All records, data, and files

of the select committee shall be the property of the Senate and shall be kept in the offices of

the select committee or such other places as the committee may direct.

APPENDIX C 363

SUBPART C—STANDING ORDERS OF THE SENATE REGARDING

UNAUTHORIZED DISCLOSURE OF INTELLIGENCE INFORMATION, S. RES.

400, 94TH CONGRESS, PROVISIONS RELATING TO THE SELECT

COMMITTEE

SEC. 8. * * *

(c)(1) No information in the possession of the select committee relating to the lawful intelligence activities of any department or agency of the United States which has been classified under

established security procedures and which the select committee, pursuant to subsection (a) or (b)

of this section, has determined should not be disclosed, shall be made available to any person

by a Member, officer, or employee of the Senate except in a closed session of the Senate or as

provided in paragraph (2).

(2) The select committee may, under such regulations as the committee shall prescribe to protect the confidentiality of such information, make any information described in paragraph (1) available to any other committee or any other Member of the Senate. Whenever the select committee

makes such information available, the committee shall keep a written record showing, in the case

of any particular information, which committee or which Members of the Senate received such

information. No Member of the Senate who, and no committee which, receives any information

under this subsection, shall disclose such information except in a closed session of the Senate.

(d) It shall be the duty of the Select Committee on Standards and Conduct to investigate any

unauthorized disclosure of intelligence information by a Member, officer or employee of the Senate in violation of subsection (c) and to report to the Senate concerning any allegation which it

finds to be substantiated.

(e) Upon the request of any person who is subject to any such investigation, the Select Committee on Standards and Conduct shall release to such individual at the conclusion of its investigation a summary of its investigation together with its findings. If, at the conclusion of its investigation, the Select Committee on Standards and Conduct determines that there has been a significant

breach of confidentiality or unauthorized disclosure by a Member, officer, or employee of the Senate, it shall report its findings to the Senate and recommend appropriate action such as censure,

removal from committee membership, or expulsion from the Senate, in the case of a Member,

or removal from office or employment or punishment for contempt, in the case of an officer or

employee.

SUBPART D—RELATING TO RECEIPT AND DISPOSITION OF FOREIGN

GIFTS AND DECORATIONS RECEIVED BY MEMBERS, OFFICERS AND

EMPLOYEES OF THE SENATE OR THEIR SPOUSES OR DEPENDENTS,

PROVISIONS RELATING TO THE SELECT COMMITTEE ON ETHICS

Section 7342 of title 5, United States Code, states as follows:

Sec. 7342. Receipt and disposition of foreign gifts and decorations.

‘‘(a) For the purpose of this section—

‘‘(1) ‘employee’ means—

‘‘(A) an employee as defined by section 2105 of this title and an officer or employee

of the United States Postal Service or of the Postal Rate Commission;

‘‘(B) an expert or consultant who is under contract under section 3109 of this title with

the United States or any agency, department, or establishment thereof, including, in the

case of an organization performing services under such section, any individual involved

in the performance of such services;

364 SENATE ETHICS MANUAL

‘‘(C) an individual employed by, or occupying an office or position in, the government

of a territory or possession of the United States or the government of the District of Columbia;

‘‘(D) a member of a uniformed service;

‘‘(E) the President and the Vice President;

‘‘(F) a Member of Congress as defined by section 2106 of this title (except the Vice

President) and any Delegate to the Congress; and

‘‘(G) the spouse of an individual described in subparagraphs (A) through (F) (unless such

individual and his or her spouse are separated) or a dependent (within the meaning of

section 152 of the Internal Revenue Code of 1986) of such an individual, other than a

spouse or dependent who is an employee under subparagraphs (A) through (F);

‘‘(2) ‘foreign government’ means-

‘‘(A) any unit of foreign governmental authority, including any foreign national, State,

local, and municipal government;

‘‘(B) any international or multinational organization whose membership is composed of

any unit of foreign government described in subparagraph (A); and

‘‘(C) any agent or representative of any such unit or such organization, while acting as

such;

‘‘(3) ‘gift’ means a tangible or intangible present (other than a decoration) tendered by,

or received from, a foreign government;

‘‘(4) ‘decoration’ means an order, device, medal, badge, insignia, emblem, or award tendered by, or received from, a foreign government;

‘‘(5) ‘minimal value’ means a retail value in the United States at the time of acceptance

of $100 or less, except that—

‘‘(A) on January 1, 1981, and at 3 year intervals thereafter, ‘minimal value’ shall be redefined in regulations prescribed by the Administrator of General Services, in consultation

with the Secretary of State, to reflect changes in the consumer price index for the immediately preceding 3–year period; and

‘‘(B) regulations of an employing agency may define ‘minimal value’ for its employees

to be less than the value established under this paragraph; and

‘‘(6) ‘employing agency’ means—

‘‘(A) the Committee on Standards of Official Conduct of the House of Representatives,

for Members and employees of the House of Representatives, except that those responsibilities specified in subsections (c)(2)(A), (e)(1), and (g)(2)(B) shall be carried out by

the Clerk of the House;

‘‘(B) the Select Committee on Ethics of the Senate, for Senators and employees of the

Senate, except that those responsibilities (other than responsibilities involving approval of

the employing agency) specified in subsections (c)(2),(d), and (g)(2)(B) shall be carried

out by the Secretary of the Senate;

‘‘(C) the Administrative Office of the United States Courts, for judges and judicial branch

employees; and

‘‘(D) the department, agency, office, or other entity in which an employee is employed,

for other legislative branch employees and for all executive branch employees.

‘‘(b) An employee may not—

‘‘(l) request or otherwise encourage the tender of a gift or decoration; or

APPENDIX C 365

‘‘(2) accept a gift or decoration, other than in accordance with, the provisions of subsections (c) and (d).

‘‘(c)(1) The Congress consents to—

‘‘(A) the accepting and retaining by an employee of a gift of minimal value tendered

and received as a souvenir or mark of courtesy; and

‘‘(B) the accepting by an employee of a gift of more than minimal value when such gift

is in the nature of an educational scholarship or medical treatment or when it appears that

to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect

the foreign relations of the United States, except that

‘‘(i) a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United

States; and

‘‘(ii) an employee may accept gifts of travel or expenses for travel taking place entirely

outside the United States (such as transportation, food, and lodging) of more than minimal

value if such acceptance is appropriate, consistent with the interests of the United States,

and permitted by the employing agency and any regulations which may be prescribed by

the employing agency.

‘‘(2) Within 60 days after accepting a tangible gift of more than minimal value (other than

a gift described in paragraph (1)(B)(ii)), an employee shall—

‘‘(A) deposit the gift for disposal with his or her employing agency; or

‘‘(B) subject to the approval of the employing agency, deposit the gift with that agency

for official use.

Within 30 days after terminating the official use of a gift under subparagraph (B), the employing agency shall forward the gift to the Administrator of General Services in accordance with subsection (e)(1) or provide for its disposal in accordance with subsection (e)(2).

‘‘(3) When an employee deposits a gift of more than minimal value for disposal or for official

use pursuant to paragraph (2), or within 30 days after accepting travel or travel expenses as provided in paragraph (1)(B)(ii) unless such travel or travel expenses are accepted in accordance with

specific instructions of his or her employing agency, the employee shall file a statement with his

or her employing agency or its delegate containing the information prescribed in subsection (f)

for that gift.

‘‘(d) The Congress consents to the accepting, retaining, and wearing by an employee of a

decoration tendered in recognition of active field service in time of combat operations or awarded

for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee. Without this approval, the decoration is deemed to have been accepted on behalf of the United States, shall become the property of the United States, and shall

be deposited by the employee, within sixty days of acceptance, with the employing agency for

official use, for forwarding to the Administrator of General Services for disposal in accordance

with subsection (e)(1), or for disposal in accordance with subsection (e)(2).

‘‘(e)(1) Except as provided in paragraph (2), gifts and decorations that have been deposited

with an employing agency for disposal shall be (A) returned to the donor, or (B) forwarded to

the Administrator of General Services for transfer, donation, or other disposal in accordance with

the provisions of the Federal Property and Administrative Services Act of 1949. However, no gift

or decoration that has been deposited for disposal may be sold without the approval of the Secretary of State, upon a determination that the sale will not adversely affect the foreign relations

of the United States. Gifts and decorations may be sold by negotiated sale.

366 SENATE ETHICS MANUAL

‘‘(2) Gifts and decorations received by a Senator or an employee of the Senate that are deposited with the Secretary of the Senate for disposal, or are deposited for an official use which has

terminated, shall be disposed of by the Commission on Arts and Antiquities of the United States

Senate. Any such gift or decoration may be returned by the Commission to the donor or may

be transferred or donated by the Commission, subject to such terms and conditions as it may prescribe, (A) to an agency or instrumentality of (i) the United States, (ii) a State, territory, or possession of the United States, or a political subdivision of the foregoing, or (iii) the District of Columbia, or (B) to an organization described in section 501(c)(3) of the Internal Revenue Code of 1986

which is exempt from taxation under section 501(a) of such Code. Any such gift or decoration

not disposed of as provided in the preceding sentence shall be forwarded to the Administrator of

General Services for disposal in accordance with paragraph (1). If the Administrator does not dispose of such gift or decoration within one year, he shall, at the request of the Commission, return

it to the Commission and the Commission may dispose of such gift or decoration in such manner

as it considers proper, except that such gift or decoration may be sold only with the approval

of the Secretary of State upon a determination that the sale will not adversely affect the foreign

relations of the United States.

‘‘(f)(1) Not later than January 31 of each year, each employing agency or its delegate shall

compile a listing of all statements filed during the preceding year by the employees of that agency

pursuant to subsection (c)(3) and shall transmit such listing to the Secretary of State who shall

publish a comprehensive listing of all such statements in the Federal Register.

‘‘(2) Such listings shall include for each tangible gift reported—

‘‘(A) the name and position of the employee;

‘‘(B) a brief description of the gift and the circumstances justifying acceptance;

‘‘(C) the identity, if known, of the foreign government and the name and position of the

individual who presented the gift;

‘‘(D) the date of acceptance of the gift;

‘‘(E) the estimated value in the United States of the gift at the time of acceptance; and

‘‘(F) disposition or current location of the gift.

‘‘(3) Such listings shall include for each gift of travel or travel expenses—

‘‘(A) the name and position of the employee;

‘‘(B) a brief description of the gift and the circumstances justifying acceptance; and

‘‘(C) the identity, if known, of the foreign government and the name and position of the

individual who presented the gift.

‘‘(4) In transmitting such listings for the Central Intelligence Agency, the Director of Central

Intelligence may delete the information described in subparagraphs (A) and (C) of paragraphs (2)

and (3) if the Director certifies in writing to the Secretary of State that the publication of such

information could adversely affect United States intelligence sources.

‘‘(g)(1) Each employing agency shall prescribe such regulations as may be necessary to carry

out the purpose of this section. For all employing agencies in the executive branch, such regulations shall be prescribed pursuant to guidance provided by the Secretary of State. These regulations

shall be implemented by each employing agency for its employees.

‘‘(2) Each employing agency shall—

‘‘(A) report to the Attorney General cases in which there is reason to believe that an

employee has violated this section;

‘‘(B) establish a procedure for obtaining an appraisal, when necessary, of the value of

gifts; and

APPENDIX C 367

1 As amended 145 Cong. Rec. S14203 (daily ed. Nov. 5, 1999).

‘‘(C) take any other actions necessary to carry out the purpose of this section.

‘‘(h) The Attorney General may bring a civil action in any district court of the United States

against any employee who knowingly solicits or accepts a gift from a foreign government not consented to by this section or who fails to deposit or report such gift as required by this section.

The court in which such action is brought may assess a penalty against such employee in any

amount not to exceed the retail value of the gift improperly solicited or received plus $5,000.

‘‘(i) The President shall direct all Chiefs of a United States Diplomatic Mission to inform

their host governments that it is a general policy of the United States Government to prohibit

United States Government employees from receiving gifts or decorations of more than minimal

value.

‘‘(j) Nothing in this section shall be construed to derogate any regulation prescribed by any

employing agency which provides for more stringent limitations on the receipt of gifts and decorations by its employees.

‘‘(k) The provisions of this section do not apply to grants and other forms of assistance to

which section 108A of the Mutual Educational and Cultural Exchange Act of 1961 applies.’’

PART II: SUPPLEMENTARY PROCEDURAL RULES

145 Cong. Rec. S1832 (daily ed. Feb. 23, 1999) 1

RULE 1: GENERAL PROCEDURES

(a) OFFICERS: In the absence of the Chairman, the duties of the Chair shall be filled by the

Vice Chairman or, in the Vice Chairman’s absence, a Committee member designated by the Chairman.

(b) PROCEDURAL RULES: The basic procedural rules of the Committee are stated as a part

of the Standing Orders of the Senate in Senate Resolution 338, 88th Congress, as amended, as

well as other resolutions and laws. Supplementary Procedural Rules are stated herein and are hereinafter referred to as the Rules. The Rules shall be published in the Congressional Record not

later than thirty days after adoption, and copies shall be made available by the Committee office

upon request.

(c) MEETINGS:

(1) The regular meeting of the Committee shall be the first Thursday of each month

while the Congress is in session.

(2) Special meetings may be held at the call of the Chairman or Vice Chairman if at

least forty-eight hours notice is furnished to all members. If all members agree, a special meeting may be held on less than forty-eight hours notice.

(3)(A) If any member of the Committee desires that a special meeting of the Committee

be called, the member may file in the office of the Committee a written request to the Chairman or Vice Chairman for that special meeting.

(B) Immediately upon the filing of the request the Clerk of the Committee shall notify

the Chairman and Vice Chairman of the filing of the request. If, within three calendar days

after the filing of the request, the Chairman or the Vice Chairman does not call the requested

special meeting, to be held within seven calendar days after the filing of the request, any three

of the members of the Committee may file their written notice in the office of the Committee

that a special meeting of the Committee will be held at a specified date and hour; such special

meeting may not occur until forty-eight hours after the notice is filed. The Clerk shall immeVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00381 Fmt 5222 Sfmt 5222 SMANUAL.012 ETHICS1 PsN: ETHICS1
368 SENATE ETHICS MANUAL

diately notify all members of the Committee of the date and hour of the special meeting. The

Committee shall meet at the specified date and hour.

(d) QUORUM:

(1) A majority of the members of the Select Committee shall constitute a quorum for

the transaction of business involving complaints or allegations of, or information about, misconduct, including resulting preliminary inquiries, adjudicatory reviews, recommendations or

reports, and matters relating to Senate Resolution 400, agreed to May 19, 1976.

(2) Three members shall constitute a quorum for the transaction of the routine business

of the Select Committee not covered by the first subparagraph of this paragraph, including

requests for opinions and interpretations concerning the Code of Official Conduct or any other

statute or regulation under the jurisdiction of the Select Committee, if one member of the

quorum is a Member of the Majority Party and one member of the quorum is a Member of

the Minority Party. During the transaction of routine business any member of the Select Committee constituting the quorum shall have the right to postpone further discussion of a pending

matter until such time as a majority of the members of the Select Committee are present.

(3) Except for an adjudicatory hearing under Rule 5 and any deposition taken outside

the presence of a Member under Rule 6, one Member shall constitute a quorum for hearing

testimony, provided that all Members have been given notice of the hearing and the Chairman

has designated a Member of the Majority Party and the Vice Chairman has designated a Member of the Minority Party to be in attendance, either of whom in the absence of the other

may constitute the quorum.

(e) ORDER OF BUSINESS: Questions as to the order of business and the procedure of the Committee shall in the first instance be decided by the Chairman and Vice Chairman, subject to reversal by a vote by a majority of the Committee.

(f) HEARINGS ANNOUNCEMENTS: The Committee shall make public announcement of the date,

place and subject matter of any hearing to be conducted by it at least one week before the commencement of that hearing, and shall publish such announcement in the Congressional Record.

If the Committee determines that there is good cause to commence a hearing at an earlier date,

such notice will be given at the earliest possible time.

(g) OPEN AND CLOSED COMMITTEE MEETINGS: Meetings of the Committee shall be open to

the public or closed to the public (executive session), as determined under the provisions of paragraphs 5 (b) to (d) of Rule XXVI of the Standing Rules of the Senate. Executive session meetings

of the Committee shall be closed except to the members and the staff of the Committee. On the

motion of any member, and with the approval of a majority of the Committee members present,

other individuals may be admitted to an executive session meeting for a specific period or purpose.

(h) RECORD OF TESTIMONY AND COMMITTEE ACTION: An accurate stenographic or transcribed

electronic record shall be kept of all Committee proceedings, whether in executive or public session. Such record shall include Senators’ votes on any question on which a recorded vote is held.

The record of a witness’s testimony, whether in public or executive session, shall be made available for inspection to the witness or his counsel under Committee supervision; a copy of any testimony given by that witness in public session, or that part of the testimony given by the witness

in executive session and subsequently quoted or made part of the record in a public session shall

be made available to any witness if he so requests. (See Rule 5 on Procedures for Conducting

Hearings.)

(i) SECRECY OF EXECUTIVE TESTIMONY AND ACTION AND OF COMPLAINT PROCEEDINGS:

(1) All testimony and action taken in executive session shall be kept secret and shall

not be released outside the Committee to any individual or group, whether governmental or

private, without the approval of a majority of the Committee.

APPENDIX C 369

(2) All testimony and action relating to a complaint or allegation shall be kept secret

and shall not be released by the Committee to any individual or group, whether governmental

or private, except the respondent, without the approval of a majority of the Committee, until

such time as a report to the Senate is required under Senate Resolution 338, 88th Congress,

as amended, or unless otherwise permitted under these Rules. (See Rule 8 on Procedures for

Handling Committee Sensitive and Classified Materials.)

(j) RELEASE OF REPORTS TO PUBLIC: No information pertaining to, or copies of any Committee report, study, or other document which purports to express the view, findings, conclusions

or recommendations of the Committee in connection with any of its activities or proceedings may

be released to any individual or group whether governmental or private, without the authorization

of the Committee. Whenever the Chairman or Vice Chairman is authorized to make any determination, then the determination may be released at his or her discretion. Each member of the Committee shall be given a reasonable opportunity to have separate views included as part of any Committee report. (See Rule 8 on Procedures for Handling Committee Sensitive and Classified Materials.)

(k) INELIGIBILITY OR DISQUALIFICATION OF MEMBERS AND STAFF:

(1) A member of the Committee shall be ineligible to participate in any Committee

proceeding that relates specifically to any of the following:

(A) a preliminary inquiry or adjudicatory review relating to (i) the conduct of (I) such

member; (II) any officer or employee the member supervises; or (ii) any complaint filed

by the member; and

(B) the determinations and recommendations of the Committee with respect to any preliminary inquiry or adjudicatory review described in subparagraph (A).

For purposes of this paragraph, a member of the committee and an officer of the Senate

shall be deemed to supervise any officer or employee consistent with the provision of paragraph 12 of Rule XXXVII of the Standing Rules of the Senate.

(2) If any Committee proceeding appears to relate to a member of the Committee in

a manner described in subparagraph (1) of this paragraph, the staff shall prepare a report to

the Chairman and Vice Chairman. If either the Chairman or the Vice Chairman concludes

from the report that it appears that the member may be ineligible, the member shall be notified

in writing of the nature of the particular proceeding and the reason that it appears that the

member may be ineligible to participate in it. If the member agrees that he or she is ineligible,

the member shall so notify the Chairman or Vice Chairman. If the member believes that he

or she is not ineligible, he or she may explain the reasons to the Chairman and Vice Chairman, and if they both agree that the member is not ineligible, the member shall continue to

serve. But if either the Chairman or Vice Chairman continues to believe that the member is

ineligible, while the member believes that he or she is not ineligible, the matter shall be

promptly referred to the Committee. The member shall present his or her arguments to the

Committee in executive session. Any contested questions concerning a member’s eligibility

shall be decided by a majority vote of the Committee, meeting in executive session, with the

member in question not participating.

(3) A member of the Committee may, at the discretion of the member, disqualify himself or herself from participating in any preliminary inquiry or adjudicatory review pending

before the Committee and the determinations and recommendations of the Committee with

respect to any such preliminary inquiry or adjudicatory review.

(4) Whenever any member of the Committee is ineligible under paragraph (1) to participate in any preliminary inquiry or adjudicatory review, or disqualifies himself or herself

under paragraph (3) from participating in any preliminary inquiry or adjudicatory review, anVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00383 Fmt 5222 Sfmt 5222 SMANUAL.012 ETHICS1 PsN: ETHICS1
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other Senator shall be appointed by the Senate to serve as a member of the Committee solely

for purposes of such preliminary inquiry or adjudicatory review and the determinations and

recommendations of the Committee with respect to such preliminary inquiry or adjudicatory

review. Any member of the Senate appointed for such purposes shall be of the same party

as the member who is ineligible or disqualifies himself or herself.

(5) The President of the Senate shall be given written notice of the ineligibility or disqualification of any member from any preliminary inquiry, adjudicatory review, or other proceeding requiring the appointment of another member in accordance with subparagraph (k)(4).

(6) A member of the Committee staff shall be ineligible to participate in any Committee proceeding that the staff director or outside counsel determines relates specifically to

any of the following:

(A) the staff member’s own conduct;

(B) the conduct of any employee that the staff member supervises;

(C) the conduct of any member, officer or employee for whom the staff member has

worked for any substantial period; or

(D) a complaint, sworn or unsworn, that was filed by the staff member. At the direction

or with the consent of the staff director or outside counsel, a staff member may also be

disqualified from participating in a Committee proceeding in other circumstances not listed above.

(l) RECORDED VOTES: Any member may require a recorded vote on any matter.

(m) PROXIES; RECORDING VOTES OF ABSENT MEMBERS:

(1) Proxy voting shall not be allowed when the question before the Committee is the

initiation or continuation of a preliminary inquiry or an adjudicatory review, or the issuance

of a report or recommendation related thereto concerning a Member or officer of the Senate.

In any such case an absent member’s vote may be announced solely for the purpose of recording the member’s position and such announced votes shall not be counted for or against the

motion.

(2) On matters other than matters listed in paragraph (m)(1) above, the Committee may

order that the record be held open for the vote of absentees or recorded proxy votes if the

absent Committee member has been informed of the matter on which the vote occurs and

has affirmatively requested of the Chairman or Vice Chairman in writing that he be so recorded.

(3) All proxies shall be in writing, and shall be delivered to the Chairman or Vice

Chairman to be recorded.

(4) Proxies shall not be considered for the purpose of establishing a quorum.

(n) APPROVAL OF BLIND TRUSTS AND FOREIGN TRAVEL REQUESTS BETWEEN SESSIONS AND

DURING EXTENDED RECESSES: During any period in which the Senate stands in adjournment between sessions of the Congress or stands in a recess scheduled to extend beyond fourteen days,

the Chairman and Vice Chairman, or their designees, acting jointly, are authorized to approve or

disapprove blind trusts under the provision of Rule XXXIV.

(o) COMMITTEE USE OF SERVICES OR EMPLOYEES OF OTHER AGENCIES AND DEPARTMENTS:

With the prior consent of the department or agency involved, the Committee may (1) utilize the

services, information, or facilities of any such department or agency of the Government, and (2)

employ on a reimbursable basis or otherwise the services of such personnel of any such department or agency as it deems advisable. With the consent of any other committee of the Senate,

or any subcommittee, the Committee may utilize the facilities and the services of the staff of such

APPENDIX C 371

other committee or subcommittee whenever the Chairman and Vice Chairman of the Committee,

acting jointly, determine that such action is necessary and appropriate.

RULE 2: PROCEDURES FOR COMPLAINTS, ALLEGATIONS, OR INFORMATION

(a) COMPLAINT, ALLEGATION, OR INFORMATION: Any member or staff member of the Committee shall report to the Committee, and any other person may report to the Committee, a sworn

complaint or other allegation or information, alleging that any Senator, or officer, or employee

of the Senate has violated a law, the Senate Code of Official Conduct, or any rule or regulation

of the Senate relating to the conduct of any individual in the performance of his or her duty as

a Member, officer, or employee of the Senate, or has engaged in improper conduct which may

reflect upon the Senate. Such complaints or allegations or information may be reported to the

Chairman, the Vice Chairman, a Committee member, or a Committee staff member.

(b) SOURCE OF COMPLAINT, ALLEGATION, OR INFORMATION: Complaints, allegations, and information to be reported to the Committee may be obtained from a variety of sources, including

but not limited to the following:

(1) sworn complaints, defined as a written statement of facts, submitted under penalty

of perjury, within the personal knowledge of the complainant alleging a violation of law, the

Senate Code of Official Conduct, or any other rule or regulation of the Senate relating to

the conduct of individuals in the performance of their duties as members, officers, or employees of the Senate;

(2) anonymous or informal complaints;

(3) information developed during a study or inquiry by the Committee or other committees or subcommittees of the Senate, including information obtained in connection with legislative or general oversight hearings;

(4) information reported by the news media; or

(5) information obtained from any individual, agency or department of the executive

branch of the Federal Government.

(c) FORM AND CONTENT OF COMPLAINTS: A complaint need not be sworn nor must it be

in any particular form to receive Committee consideration, but the preferred complaint will:

(1) state, whenever possible, the name, address, and telephone number of the party filing the complaint;

(2) provide the name of each member, officer or employee of the Senate who is specifically alleged to have engaged in improper conduct or committed a violation;

(3) state the nature of the alleged improper conduct or violation;

(4) supply all documents in the possession of the party filing the complaint relevant

to or in support of his or her allegations as an attachment to the complaint.

RULE 3: PROCEDURES FOR CONDUCTING A PRELIMINARY INQUIRY

(a) DEFINITION OF PRELIMINARY INQUIRY: A ‘‘preliminary inquiry’’ is a proceeding undertaken by the Committee following the receipt of a complaint or allegation of, or information about,

misconduct by a Member, officer, or employee of the Senate to determine whether there is substantial credible evidence which provides substantial cause for the Committee to conclude that a

violation within the jurisdiction of the Committee has occurred.

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(b) BASIS FOR PRELIMINARY INQUIRY: The Committee shall promptly commence a preliminary

inquiry whenever it has received a sworn complaint, or other allegation of, or information about,

alleged misconduct or violations pursuant to Rule 2.

(c) SCOPE OF PRELIMINARY INQUIRY:

(1) The preliminary inquiry shall be of such duration and scope as is necessary to determine whether there is substantial credible evidence which provides substantial cause for the

Committee to conclude that a violation within the jurisdiction of the Committee has occurred.

The Chairman and Vice Chairman, acting jointly, on behalf of the Committee may supervise

and determine the appropriate duration, scope, and conduct of a preliminary inquiry. Whether

a preliminary inquiry is conducted jointly by the Chairman and Vice Chairman or by the Committee as a whole, the day to day supervision of a preliminary inquiry rests with the Chairman

and Vice Chairman, acting jointly.

(2) A preliminary inquiry may include any inquiries, interviews, sworn statements,

depositions, or subpoenas deemed appropriate to obtain information upon which to make any

determination provided for by this Rule.

(d) OPPORTUNITY FOR RESPONSE: A preliminary inquiry may include an opportunity for any

known respondent or his or her designated representative to present either a written or oral statement, or to respond orally to questions from the Committee. Such an oral statement or answers

shall be transcribed and signed by the person providing the statement or answers.

(e) STATUS REPORTS: The Committee staff or outside counsel shall periodically report to the

Committee in the form and according to the schedule prescribed by the Committee. The reports

shall be confidential.

(f) FINAL REPORT: When the preliminary inquiry is completed, the staff or outside counsel

shall make a confidential report, oral or written, to the Committee on findings and recommendations, as appropriate.

(g) COMMITTEE ACTION: As soon as practicable following submission of the report on the

preliminary inquiry, the Committee shall determine by a recorded vote whether there is substantial

credible evidence which provides substantial cause for the Committee to conclude that a violation

within the jurisdiction of the Committee has occurred. The Committee may make any of the following determinations:

(1) The Committee may determine that there is not such substantial credible evidence

and, in such case, the Committee shall dismiss the matter. The Committee, or Chairman and

Vice Chairman acting jointly on behalf of the Committee, may dismiss any matter which, after

a preliminary inquiry, is determined to lack substantial merit. The Committee shall inform the

complainant of the dismissal.

(2) The Committee may determine that there is such substantial credible evidence, but

that the alleged violation is inadvertent, technical, or otherwise of a de minimis nature. In

such case, the Committee may dispose of the matter by issuing a public or private letter of

admonition, which shall not be considered discipline and which shall not be subject to appeal

to the Senate. The issuance of a letter of admonition must be approved by the affirmative

recorded vote of no fewer than four members of the Committee voting.

(3) The Committee may determine that there is such substantial credible evidence and

that the matter cannot be appropriately disposed of under paragraph (2). In such case, the

Committee shall promptly initiate an adjudicatory review in accordance with Rule 4. No adjudicatory review of conduct of a Member, officer, or employee of the Senate may be initiated

except by the affirmative recorded vote of not less than four members of the Committee.

APPENDIX C 373

RULE 4: PROCEDURES FOR CONDUCTING AN ADJUDICATORY REVIEW

(a) DEFINITION OF ADJUDICATORY REVIEW: An ‘‘adjudicatory review’’ is a proceeding undertaken by the Committee after a finding, on the basis of a preliminary inquiry, that there is substantial cause for the Committee to conclude that a violation within the jurisdiction of the Committee

has occurred.

(b) SCOPE OF ADJUDICATORY REVIEW: When the Committee decides to conduct an adjudicatory review, it shall be of such duration and scope as is necessary for the Committee to determine

whether a violation within its jurisdiction has occurred. An adjudicatory review shall be conducted

by outside counsel as authorized by section 3(b)(1) of Senate Resolution 338 unless the Committee

determines not to use outside counsel. In the course of the adjudicatory review, designated outside

counsel, or if the Committee determines not to use outside counsel, the Committee or its staff,

may conduct any inquiries or interviews, take sworn statements, use compulsory process as described in Rule 6, or take any other actions that the Committee deems appropriate to secure the

evidence necessary to make a determination.

(c) NOTICE TO RESPONDENT: The Committee shall give written notice to any known respondent who is the subject of an adjudicatory review. The notice shall be sent to the respondent no

later than five working days after the Committee has voted to conduct an adjudicatory review.

The notice shall include a statement of the nature of the possible violation, and description of

the evidence indicating that a possible violation occurred. The Committee may offer the respondent

an opportunity to present a statement, orally or in writing, or to respond to questions from members of the Committee, the Committee staff, or outside counsel.

(d) RIGHT TO A HEARING: The Committee shall accord a respondent an opportunity for a hearing before it recommends disciplinary action against that respondent to the Senate or before it imposes an order of restitution or reprimand (not requiring discipline by the full Senate).

(e) PROGRESS REPORTS TO COMMITTEE: The Committee staff or outside counsel shall periodically report to the Committee concerning the progress of the adjudicatory review. Such reports

shall be delivered to the Committee in the form and according to the schedule prescribed by the

Committee, and shall be confidential.

(f) FINAL REPORT OF ADJUDICATORY REVIEW TO COMMITTEE: Upon completion of an adjudicatory review, including any hearings held pursuant to Rule 5, the outside counsel or the staff

shall submit a confidential written report to the Committee, which shall detail the factual findings

of the adjudicatory review and which may recommend disciplinary action, if appropriate. Findings

of fact of the adjudicatory review shall be detailed in this report whether or not disciplinary action

is recommended.

(g) COMMITTEE ACTION:

(1) As soon as practicable following submission of the report of the staff or outside

counsel on the adjudicatory review, the Committee shall prepare and submit a report to the

Senate, including a recommendation or proposed resolution to the Senate concerning disciplinary action, if appropriate. A report shall be issued, stating in detail the Committee’s findings

of fact, whether or not disciplinary action is recommended. The report shall also explain fully

the reasons underlying the Committee’s recommendation concerning disciplinary action, if

any. No adjudicatory review of conduct of a Member, officer or employee of the Senate may

be conducted, or report or resolution or recommendation relating to such an adjudicatory review of conduct may be made, except by the affirmative recorded vote of not less than four

members of the Committee.

(2) Pursuant to S. Res. 338, as amended, section 2 (a), subsections (2), (3), and (4),

after receipt of the report prescribed by paragraph (f) of this rule, the Committee may make

374 SENATE ETHICS MANUAL

any of the following recommendations for disciplinary action or issue an order for reprimand

or restitution, as follows:

(i) In the case of a Member, a recommendation to the Senate for expulsion, censure,

payment of restitution, recommendation to a Member’s party conference regarding the

Member’s seniority or positions of responsibility, or a combination of these;

(ii) In the case of an officer or employee, a recommendation to the Senate of dismissal,

suspension, payment of restitution, or a combination of these;

(iii) In the case where the Committee determines, after according to the Member, officer, or employee due notice and opportunity for a hearing, that misconduct occurred warranting discipline less serious than discipline by the full Senate, and subject to the provisions of paragraph (h) of this rule relating to appeal, by a unanimous vote of six members

order that a Member, officer or employee be reprimanded or pay restitution or both;

(iv) In the case where the Committee determines that misconduct is inadvertent, technical, or otherwise of a de minimis nature, issue a public or private letter of admonition

to a Member, officer or employee, which shall not be subject to appeal to the Senate.

(3) In the case where the Committee determines, upon consideration of all the evidence,

that the facts do not warrant a finding that there is substantial credible evidence which provides substantial cause for the Committee to conclude that a violation within the jurisdiction

of the Committee has occurred, the Committee may dismiss the matter.

(4) Promptly, after the conclusion of the adjudicatory review, the Committee’s report

and recommendation, if any, shall be forwarded to the Secretary of the Senate, and a copy

shall be provided to the complainant and the respondent. The full report and recommendation,

if any, shall be printed and made public, unless the Committee determines by the recorded

vote of not less than four members of the Committee that it should remain confidential.

(h) RIGHT OF APPEAL:

(1) Any individual who is the subject of a reprimand or order of restitution, or both,

pursuant to subsection (g)(2)(iii), may, within 30 days of the Committee’s report to the Senate

of its action imposing a reprimand or order of restitution, or both, appeal to the Senate by

providing written notice of the appeal to the Committee and the presiding officer of the Senate. The presiding officer shall cause the notice of the appeal to be printed in the Congressional Record and the Senate Journal.

(2) S. Res. 338 provides that a motion to proceed to consideration of an appeal pursuant to paragraph (1) shall be highly privileged and not debatable. If the motion to proceed

to consideration of the appeal is agreed to, the appeal shall be decided on the basis of the

Committee’s report to the Senate. Debate on the appeal shall be limited to 10 hours, which

shall be divided equally between, and controlled by, those favoring and those opposing the

appeal.

RULE 5: PROCEDURES FOR HEARINGS

(a) RIGHT TO HEARING: The Committee may hold a public or executive hearing in any preliminary inquiry, adjudicatory review, or other proceeding. The Committee shall accord a respondent an opportunity for a hearing before it recommends disciplinary action against that respondent

to the Senate or before it imposes an order of restitution or reprimand. (See Rule 4(d).)

(b) NON-PUBLIC HEARINGS: The Committee may at any time during a hearing determine in

accordance with paragraph 5(b) of Rule XXVI of the Standing Rules of the Senate whether to

receive the testimony of specific witnesses in executive session. If a witness desires to express

APPENDIX C 375

a preference for testifying in public or in executive session, he or she shall so notify the Committee at least five days before he or she is scheduled to testify.

(c) ADJUDICATORY HEARINGS: The Committee may, by the recorded vote of not less than four

members of the Committee, designate any public or executive hearing as an adjudicatory hearing;

and any hearing which is concerned with possible disciplinary action against a respondent or respondents designated by the Committee shall be an adjudicatory hearing. In any adjudicatory hearing, the procedures described in paragraph (j) shall apply.

(d) SUBPOENA POWER: The Committee may require, by subpoena or otherwise, the attendance

and testimony of such witnesses and the production of such correspondence, books, papers, documents or other articles as it deems advisable. (See Rule 6.)

(e) NOTICE OF HEARINGS: The Committee shall make public an announcement of the date,

place, and subject matter of any hearing to be conducted by it, in accordance with Rule 1(f).

(f) PRESIDING OFFICER: The Chairman shall preside over the hearings, or in his absence the

Vice Chairman. If the Vice Chairman is also absent, a Committee member designated by the

Chairman shall preside. If an oath or affirmation is required, it shall be administered to a witness

by the Presiding Officer, or in his absence, by any Committee member.

(g) WITNESSES:

(1) A subpoena or other request to testify shall be served on a witness sufficiently in

advance of his or her scheduled appearance to allow the witness a reasonable period of time,

as determined by the Committee, to prepare for the hearing and to employ counsel if desired.

(2) The Committee may, by recorded vote of not less than four members of the Committee, rule that no member of the Committee or staff or outside counsel shall make public

the name of any witness subpoenaed by the Committee before the date of that witness’s scheduled appearance, except as specifically authorized by the Chairman and Vice Chairman, acting

jointly.

(3) Any witness desiring to read a prepared or written statement in executive or public

hearings shall file a copy of such statement with the Committee at least two working days

in advance of the hearing at which the statement is to be presented. The Chairman and Vice

Chairman shall determine whether such statements may be read or placed in the record of

the hearing.

(4) Insofar as practicable, each witness shall be permitted to present a brief oral opening statement, if he or she desires to do so.

(h) RIGHT TO TESTIFY: Any person whose name is mentioned or who is specifically identified

or otherwise referred to in testimony or in statements made by a Committee member, staff member

or outside counsel, or any witness, and who reasonably believes that the statement tends to adversely affect his or her reputation may—

(1) Request to appear personally before the Committee to testify in his or her own behalf; or

(2) File a sworn statement of facts relevant to the testimony or other evidence or statement of which he or she complained. Such request and such statement shall be submitted to

the Committee for its consideration and action.

(i) CONDUCT OF WITNESSES AND OTHER ATTENDEES: The Presiding Officer may punish any

breaches of order and decorum by censure and exclusion from the hearings. The Committee, by

majority vote, may recommend to the Senate that the offender be cited for contempt of Congress.

(j) ADJUDICATORY HEARING PROCEDURES:

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(1) NOTICE OF HEARINGS: A copy of the public announcement of an adjudicatory hearing, required by paragraph (e), shall be furnished together with a copy of these Rules to all

witnesses at the time that they are subpoenaed or otherwise summoned to testify.

(2) PREPARATION FOR ADJUDICATORY HEARINGS:

(A) At least five working days prior to the commencement of an adjudicatory hearing,

the Committee shall provide the following information and documents to the respondent,

if any:

(i) a list of proposed witnesses to be called at the hearing;

(ii) copies of all documents expected to be introduced as exhibits at the hearing; and

(iii) a brief statement as to the nature of the testimony expected to be given

by each witness to be called at the hearing.

(B) At least two working days prior to the commencement of an adjudicatory hearing,

the respondent, if any, shall provide the information and documents described in divisions

(i), (ii) and (iii) of subparagraph (A) to the Committee.

(C) At the discretion of the Committee, the information and documents to be exchanged

under this paragraph shall be subject to an appropriate agreement limiting access and disclosure.

(D) If a respondent refuses to provide the information and documents to the Committee

(see (A) and (B) of this subparagraph), or if a respondent or other individual violates an

agreement limiting access and disclosure, the Committee, by majority vote, may recommend to the Senate that the offender be cited for contempt of Congress.

(3) SWEARING OF WITNESSES: All witnesses who testify at adjudicatory hearings shall

be sworn unless the Presiding Officer, for good cause, decides that a witness does not have

to be sworn.

(4) RIGHT TO COUNSEL: Any witness at an adjudicatory hearing may be accompanied

by counsel of his or her own choosing, who shall be permitted to advise the witness of his

or her legal rights during the testimony.

(5) RIGHT TO CROSS-EXAMINE AND CALL WITNESSES:

(A) In adjudicatory hearings, any respondent and any other person who obtains the permission of the Committee, may personally or through counsel cross-examine witnesses

called by the Committee and may call witnesses in his or her own behalf.

(B) A respondent may apply to the Committee for the issuance of subpoenas for the

appearance of witnesses or the production of documents on his or her behalf. An application shall be approved upon a concise showing by the respondent that the proposed testimony or evidence is relevant and appropriate, as determined by the Chairman and Vice

Chairman.

(C) With respect to witnesses called by a respondent, or other individual given permission by the Committee, each such witness shall first be examined by the party who called

the witness or by that party’s counsel.

(D) At least one working day before a witness’s scheduled appearance, a witness or

a witness’s counsel may submit to the Committee written questions proposed to be asked

of that witness. If the Committee determines that it is necessary, such questions may be

asked by any member of the Committee, or by any Committee staff member if directed

by a Committee member. The witness or witness’s counsel may also submit additional

sworn testimony for the record within twenty-four hours after the last day that the witness

has testified. The insertion of such testimony in that day’s record is subject to the apVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00390 Fmt 5222 Sfmt 5222 SMANUAL.012 ETHICS1 PsN: ETHICS1
APPENDIX C 377

proval of the Chairman and Vice Chairman acting jointly within five days after the testimony is received.

(6) ADMISSIBILITY OF EVIDENCE:

(A) The object of the hearing shall be to ascertain the truth. Any evidence that may

be relevant and probative shall be admissible unless privileged under the Federal Rules

of Evidence. Rules of evidence shall not be applied strictly, but the Presiding Officer shall

exclude irrelevant or unduly repetitious testimony. Objections going only to the weight

that should be given evidence will not justify its exclusion.

(B) The Presiding Officer shall rule upon any question of the admissibility of testimony

or other evidence presented to the Committee. Such rulings shall be final unless reversed

or modified by a recorded vote of not less than four members of the Committee before

the recess of that day’s hearings.

(C) Notwithstanding paragraphs (A) and (B), in any matter before the Committee involving allegations of sexual discrimination, including sexual harassment, or sexual misconduct, by a Member, officer, or employee within the jurisdiction of the Committee, the

Committee shall be guided by the standards and procedures of Rule 412 of the Federal

Rules of Evidence, except that the Committee may admit evidence subject to the provisions of this paragraph only upon a determination of not less than four members of the

full Committee that the interests of justice require that such evidence be admitted.

(7) SUPPLEMENTARY HEARING PROCEDURES: The Committee may adopt any additional

special hearing procedures that it deems necessary or appropriate to a particular adjudicatory

hearing. Copies of such supplementary procedures shall be furnished to witnesses and respondents, and shall be made available upon request to any member of the public.

(k) TRANSCRIPTS:

(1) An accurate stenographic or recorded transcript shall be made of all public and executive hearings. Any member of the Committee, Committee staff member, outside counsel

retained by the Committee, or witness may examine a copy of the transcript retained by the

Committee of his or her own remarks and may suggest to the official reporter any typographical or transcription errors. If the reporter declines to make the requested corrections,

the member, staff member, outside counsel or witness may request a ruling by the Chairman

and Vice Chairman, acting jointly. Any member or witness shall return the transcript with

suggested corrections to the Committee offices within five working days after receipt of the

transcript, or as soon thereafter as is practicable. If the testimony was given in executive session, the member or witness may only inspect the transcript at a location determined by the

Chairman and Vice Chairman, acting jointly. Any questions arising with respect to the processing and correction of transcripts shall be decided by the Chairman and Vice Chairman, acting jointly.

(2) Except for the record of a hearing which is closed to the public, each transcript

shall be printed as soon as is practicable after receipt of the corrected version. The Chairman

and Vice Chairman, acting jointly, may order the transcript of a hearing to be printed without

the corrections of a member or witness if they determine that such member or witness has

been afforded a reasonable time to correct such transcript and such transcript has not been

returned within such time.

(3) The Committee shall furnish each witness, at no cost, one transcript copy of that

witness’s testimony given at a public hearing. If the testimony was given in executive session,

then a transcript copy shall be provided upon request, subject to appropriate conditions and

restrictions prescribed by the Chairman and Vice Chairman. If any individual violates such

378 SENATE ETHICS MANUAL

conditions and restrictions, the Committee may recommend by majority vote that he or she

be cited for contempt of Congress.

RULE 6: SUBPOENAS AND DEPOSITIONS

(a) SUBPOENAS:

(1) AUTHORIZATION FOR ISSUANCE: Subpoenas for the attendance and testimony of witnesses at depositions or hearings, and subpoenas for the production of documents and tangible

things at depositions, hearings, or other times and places designated therein, may be authorized

for issuance by either (A) a majority vote of the Committee, or (B) the Chairman and Vice

Chairman, acting jointly, at any time during a preliminary inquiry, adjudicatory review, or

other proceeding.

(2) SIGNATURE AND SERVICE: All subpoenas shall be signed by the Chairman or the

Vice Chairman and may be served by any person eighteen years of age or older, who is designated by the Chairman or Vice Chairman. Each subpoena shall be served with a copy of

the Rules of the Committee and a brief statement of the purpose of the Committee’s proceeding.

(3) WITHDRAWAL OF SUBPOENA: The Committee, by recorded vote of not less than

four members of the Committee, may withdraw any subpoena authorized for issuance by it

or authorized for issuance by the Chairman and Vice Chairman, acting jointly. The Chairman

and Vice Chairman, acting jointly, may withdraw any subpoena authorized for issuance by

them.

(b) DEPOSITIONS:

(1) PERSONS AUTHORIZED TO TAKE DEPOSITIONS: Depositions may be taken by any

member of the Committee designated by the Chairman and Vice Chairman, acting jointly, or

by any other person designated by the Chairman and Vice Chairman, acting jointly, including

outside counsel, Committee staff, other employees of the Senate, or government employees

detailed to the Committee.

(2) DEPOSITION NOTICES: Notices for the taking of depositions shall be authorized by

the Committee, or the Chairman and Vice Chairman, acting jointly, and issued by the Chairman, Vice Chairman, or a Committee staff member or outside counsel designated by the

Chairman and Vice Chairman, acting jointly. Depositions may be taken at any time during

a preliminary inquiry, adjudicatory review or other proceeding. Deposition notices shall specify a time and place for examination. Unless otherwise specified, the deposition shall be in

private, and the testimony taken and documents produced shall be deemed for the purpose

of these rules to have been received in a closed or executive session of the Committee. The

Committee shall not initiate procedures leading to criminal or civil enforcement proceedings

for a witness’s failure to appear, or to testify, or to produce documents, unless the deposition

notice was accompanied by a subpoena authorized for issuance by the Committee, or the

Chairman and Vice Chairman, acting jointly.

(3) COUNSEL AT DEPOSITIONS: Witnesses may be accompanied at a deposition by counsel to advise them of their rights.

(4) DEPOSITION PROCEDURE: Witnesses at depositions shall be examined upon oath administered by an individual authorized by law to administer oaths, or administered by any

member of the Committee if one is present. Questions may be propounded by any person

or persons who are authorized to take depositions for the Committee. If a witness objects to

a question and refuses to testify, or refuses to produce a document, any member of the Committee who is present may rule on the objection and, if the objection is overruled, direct the

APPENDIX C 379

witness to answer the question or produce the document. If no member of the Committee is

present, the individual who has been designated by the Chairman and Vice Chairman, acting

jointly, to take the deposition may proceed with the deposition, or may, at that time or at

a subsequent time, seek a ruling by telephone or otherwise on the objection from the Chairman or Vice Chairman of the Committee, who may refer the matter to the Committee or rule

on the objection. If the Chairman or Vice Chairman, or the Committee upon referral, overrules

the objection, the Chairman, Vice Chairman, or the Committee as the case may be, may direct

the witness to answer the question or produce the document. The Committee shall not initiate

procedures leading to civil or criminal enforcement unless the witness refuses to testify or

produce documents after having been directed to do so.

(5) FILING OF DEPOSITIONS: Deposition testimony shall be transcribed or electronically

recorded. If the deposition is transcribed, the individual administering the oath shall certify

on the transcript that the witness was duly sworn in his or her presence and the transcriber

shall certify that the transcript is a true record of the testimony. The transcript with these certifications shall be filed with the chief clerk of the Committee, and the witness shall be furnished with access to a copy at the Committee’s offices for review. Upon inspecting the transcript, within a time limit set by the Chairman and Vice Chairman, acting jointly, a witness

may request in writing changes in the transcript to correct errors in transcription. The witness

may also bring to the attention of the Committee errors of fact in the witness’s testimony

by submitting a sworn statement about those facts with a request that it be attached to the

transcript. The Chairman and Vice Chairman, acting jointly, may rule on the witness’s request,

and the changes or attachments allowed shall be certified by the Committee’s chief clerk. If

the witness fails to make any request under this paragraph within the time limit set, this fact

shall be noted by the Committee’s chief clerk. Any person authorized by the Committee may

stipulate with the witness to changes in this procedure.

RULE 7: VIOLATIONS OF LAW; PERJURY; LEGISLATIVE RECOMMENDATIONS; EDUCATIONAL

MANDATE; AND APPLICABLE RULES AND STANDARDS OF CONDUCT

(a) VIOLATIONS OF LAW: Whenever the Committee determines by the recorded vote of not

less than four members of the full Committee that there is reason to believe that a violation of

law, including the provision of false information to the Committee, may have occurred, it shall

report such possible violation to the proper Federal and state authorities.

(b) PERJURY: Any person who knowingly and willfully swears falsely to a sworn complaint

or any other sworn statement to the Committee does so under penalty of perjury. The Committee

may refer any such case to the Attorney General for prosecution.

(c) LEGISLATIVE RECOMMENDATIONS: The Committee shall recommend to the Senate by report or resolution such additional rules, regulations, or other legislative measures as it determines

to be necessary or desirable to ensure proper standards of conduct by Members, officers, or employees of the Senate. The Committee may conduct such inquiries as it deems necessary to prepare

such a report or resolution, including the holding of hearings in public or executive session and

the use of subpoenas to compel the attendance of witnesses or the production of materials. The

Committee may make legislative recommendations as a result of its findings in a preliminary inquiry, adjudicatory review, or other proceeding.

(d) Educational Mandate: The Committee shall develop and implement programs and materials

designed to educate Members, officers, and employees about the laws, rules, regulations, and

standards of conduct applicable to such individuals in the performance of their duties.

(e) APPLICABLE RULES AND STANDARDS OF CONDUCT:

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(1) Notwithstanding any other provision of this section, no adjudicatory review shall

be initiated of any alleged violation of any law, the Senate Code of Official Conduct, rule,

or regulation which was not in effect at the time the alleged violation occurred. No provisions

of the Senate Code of Official Conduct shall apply to or require disclosure of any act, relationship, or transaction which occurred prior to the effective date of the applicable provision

of the Code.

(2) The Committee may initiate an adjudicatory review of any alleged violation of a

rule or law which was in effect prior to the enactment of the Senate Code of Official Conduct

if the alleged violation occurred while such rule or law was in effect and the violation was

not a matter resolved on the merits by the predecessor Committee.

RULE 8: PROCEDURES FOR HANDLING COMMITTEE SENSITIVE AND CLASSIFIED MATERIALS

(a) PROCEDURES FOR HANDLING COMMITTEE SENSITIVE MATERIALS:

(1) Committee Sensitive information or material is information or material in the possession of the Select Committee on Ethics which pertains to illegal or improper conduct by

a present or former Member, officer, or employee of the Senate; to allegations or accusations

of such conduct; to any resulting preliminary inquiry, adjudicatory review or other proceeding

by the Select Committee on Ethics into such allegations or conduct; to the investigative techniques and procedures of the Select Committee on Ethics; or to other information or material

designated by the staff director, or outside counsel designated by the Chairman and Vice

Chairman.

(2) The Chairman and Vice Chairman of the Committee shall establish such procedures

as may be necessary to prevent the unauthorized disclosure of Committee Sensitive information in the possession of the Committee or its staff. Procedures for protecting Committee Sensitive materials shall be in writing and shall be given to each Committee staff member.

(b) PROCEDURES FOR HANDLING CLASSIFIED MATERIALS:

(1) Classified information or material is information or material which is specifically

designated as classified under the authority of Executive Order 11652 requiring protection of

such information or material from unauthorized disclosure in order to prevent damage to the

United States.

(2) The Chairman and Vice Chairman of the Committee shall establish such procedures

as may be necessary to prevent the unauthorized disclosure of classified information in the

possession of the Committee or its staff. Procedures for handling such information shall be

in writing and a copy of the procedures shall be given to each staff member cleared for access

to classified information.

(3) Each member of the Committee shall have access to classified material in the Committee’s possession. Only Committee staff members with appropriate security clearances and

a need-to-know, as approved by the Chairman and Vice Chairman, acting jointly, shall have

access to classified information in the Committee’s possession.

(c) PROCEDURES FOR HANDLING COMMITTEE SENSITIVE AND CLASSIFIED DOCUMENTS:

(1) Committee Sensitive documents and materials shall be stored in the Committee’s

offices, with appropriate safeguards for maintaining the security of such documents or materials. Classified documents and materials shall be further segregated in the Committee’s offices

in secure filing safes. Removal from the Committee offices of such documents or materials

is prohibited except as necessary for use in, or preparation for, interviews or Committee meetings, including the taking of testimony, or as otherwise specifically approved by the staff director or by outside counsel designated by the Chairman and Vice Chairman.

APPENDIX C 381

(2) Each member of the Committee shall have access to all materials in the Committee’s possession. The staffs of members shall not have access to Committee Sensitive or classified documents and materials without the specific approval in each instance of the Chairman,

and Vice Chairman, acting jointly. Members may examine such materials in the Committee’s

offices. If necessary, requested materials may be hand delivered by a member of the Committee staff to the member of the Committee, or to a staff person(s) specifically designated

by the member, for the Member’s or designated staffer’s examination. A member of the Committee who has possession of Committee Sensitive documents or materials shall take appropriate safeguards for maintaining the security of such documents or materials in the possession

of the Member or his or her designated staffer.

(3) Committee Sensitive documents that are provided to a Member of the Senate in

connection with a complaint that has been filed against the Member shall be hand delivered

to the Member or to the Member’s Chief of Staff or Administrative Assistant. Committee Sensitive documents that are provided to a Member of the Senate who is the subject of a preliminary inquiry, adjudicatory review, or other proceeding, shall be hand delivered to the Member

or to his or her specifically designated representative.

(4) Any Member of the Senate who is not a member of the Committee and who seeks

access to any Committee Sensitive or classified documents or materials, other than documents

or materials which are matters of public record, shall request access in writing. The Committee

shall decide by majority vote whether to make documents or materials available. If access

is granted, the Member shall not disclose the information except as authorized by the Committee.

(5) Whenever the Committee makes Committee Sensitive or classified documents or

materials available to any Member of the Senate who is not a member of the Committee,

or to a staff person of a Committee member in response to a specific request to the Chairman

and Vice Chairman, a written record shall be made identifying the Member of the Senate requesting such documents or materials and describing what was made available and to whom.

(d) NON-DISCLOSURE POLICY AND AGREEMENT:

(1) Except as provided in the last sentence of this paragraph, no member of the Select

Committee on Ethics, its staff or any person engaged by contract or otherwise to perform services for the Select Committee on Ethics shall release, divulge, publish, reveal by writing,

word, conduct, or disclose in any way, in whole, or in part, or by way of summary, during

tenure with the Select Committee on Ethics or anytime thereafter, any testimony given before

the Select Committee on Ethics in executive session (including the name of any witness who

appeared or was called to appear in executive session), any classified or Committee Sensitive

information, document or material, received or generated by the Select Committee on Ethics

or any classified or Committee Sensitive information which may come into the possession of

such person during tenure with the Select Committee on Ethics or its staff. Such information,

documents, or material may be released to an official of the executive branch properly cleared

for access with a need-to-know, for any purpose or in connection with any proceeding, judicial

or otherwise, as authorized by the Select Committee on Ethics, or in the event of termination

of the Select Committee on Ethics, in such a manner as may be determined by its successor

or by the Senate.

(2) No member of the Select Committee on Ethics staff or any person engaged by contract or otherwise to perform services for the Select Committee on Ethics, shall be granted

access to classified or Committee Sensitive information or material in the possession of the

Select Committee on Ethics unless and until such person agrees in writing, as a condition

of employment, to the non-disclosure policy. The agreement shall become effective when

signed by the Chairman and Vice Chairman on behalf of the Committee.

382 SENATE ETHICS MANUAL

RULE 9: BROADCASTING AND NEWS COVERAGE OF COMMITTEE PROCEEDINGS

(a) Whenever any hearing or meeting of the Committee is open to the public, the Committee

shall permit that hearing or meeting to be covered in whole or in part, by television broadcast,

radio broadcast, still photography, or by any other methods of coverage, unless the Committee

decides by recorded vote of not less than four members of the Committee that such coverage is

not appropriate at a particular hearing or meeting.

(b) Any witness served with a subpoena by the Committee may request not to be photographed at any hearing or to give evidence or testimony while the broadcasting, reproduction, or

coverage of that hearing, by radio, television, still photography, or other methods is occurring. At

the request of any such witness who does not wish to be subjected to radio, television, still photography, or other methods of coverage, and subject to the approval of the Committee, all lenses shall

be covered and all microphones used for coverage turned off.

(c) If coverage is permitted, it shall be in accordance with the following requirements:

(1) Photographers and reporters using mechanical recording, filming, or broadcasting

apparatus shall position their equipment so as not to interfere with the seating, vision, and

hearing of the Committee members and staff, or with the orderly process of the meeting or

hearing.

(2) If the television or radio coverage of the hearing or meeting is to be presented to

the public as live coverage, the coverage shall be conducted and presented without commercial

sponsorship.

(3) Personnel providing coverage by the television and radio media shall be currently

accredited to the Radio and Television Correspondents’ Galleries.

(4) Personnel providing coverage by still photography shall be currently accredited to

the Press Photographers’ Gallery Committee of Press Photographers.

(5) Personnel providing coverage by the television and radio media and by still photography shall conduct themselves and the coverage activities in an orderly and unobtrusive manner.

RULE 10: PROCEDURES FOR ADVISORY OPINIONS

(a) WHEN ADVISORY OPINIONS ARE RENDERED:

(1) The Committee shall render an advisory opinion, in writing within a reasonable

time, in response to a written request by a Member or officer of the Senate or a candidate

for nomination for election, or election to the Senate, concerning the application of any law,

the Senate Code of Official Conduct, or any rule or regulation of the Senate within the Committee’s jurisdiction, to a specific factual situation pertinent to the conduct or proposed conduct of the person seeking the advisory opinion.

(2) The Committee may issue an advisory opinion in writing within a reasonable time

in response to a written request by any employee of the Senate concerning the application

of any law, the Senate Code of Official Conduct, or any rule or regulation of the Senate within the Committee’s jurisdiction, to a specific factual situation pertinent to the conduct or proposed conduct of the person seeking the advisory opinion.

(b) FORM OF REQUEST: A request for an advisory opinion shall be directed in writing to the

Chairman of the Committee and shall include a complete and accurate statement of the specific

factual situation with respect to which the request is made as well as the specific question or questions which the requestor wishes the Committee to address.

(c) OPPORTUNITY FOR COMMENT:

APPENDIX C 383

(1) The Committee will provide an opportunity for any interested party to comment

on a request for an advisory opinion—

(A) which requires an interpretation on a significant question of first impression that

will affect more than a few individuals; or

(B) when the Committee determines that comments from interested parties would be

of assistance.

(2) Notice of any such request for an advisory opinion shall be published in the Congressional Record, with appropriate deletions to insure confidentiality, and interested parties

will be asked to submit their comments in writing to the Committee within ten days.

(3) All relevant comments received on a timely basis will be considered.

(d) ISSUANCE OF AN ADVISORY OPINION:

(1) The Committee staff shall prepare a proposed advisory opinion in draft form which

will first be reviewed and approved by the Chairman and Vice Chairman, acting jointly, and

will be presented to the Committee for final action. If (A) the Chairman and Vice Chairman

cannot agree, or (B) either the Chairman or Vice Chairman requests that it be taken directly

to the Committee, then the proposed advisory opinion shall be referred to the Committee for

its decision.

(2) An advisory opinion shall be issued only by the affirmative recorded vote of a majority of the members voting.

(3) Each advisory opinion issued by the Committee shall be promptly transmitted for

publication in the Congressional Record after appropriate deletions are made to insure confidentiality. The Committee may at any time revise, withdraw, or elaborate on any advisory

opinion.

(e) RELIANCE ON ADVISORY OPINIONS:

(1) Any advisory opinion issued by the Committee under Senate Resolution 338, 88th

Congress, as amended, and the rules may be relied upon by—

(A) Any person involved in the specific transaction or activity with respect to which

such advisory opinion is rendered if the request for such advisory opinion included a complete and accurate statement of the specific factual situation; and

(B) any person involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such

advisory opinion is rendered.

(2) Any person who relies upon any provision or finding of an advisory opinion in

accordance with the provisions of Senate Resolution 338, 88th Congress, as amended, and of

the rules, and who acts in good faith in accordance with the provisions and findings of such

advisory opinion shall not, as a result of any such act, be subject to any sanction by the Senate.

RULE 11: PROCEDURES FOR INTERPRETATIVE RULINGS

(a) BASIS FOR INTERPRETATIVE RULINGS: Senate Resolution 338, 88th Congress, as amended,

authorizes the Committee to issue interpretative rulings explaining and clarifying the application

of any law, the Code of Official Conduct, or any rule or regulation of the Senate within its jurisdiction. The Committee also may issue such rulings clarifying or explaining any rule or regulation

of the Select Committee on Ethics.

384 SENATE ETHICS MANUAL

(b) REQUEST FOR RULING: A request for such a ruling must be directed in writing to the

Chairman or Vice Chairman of the Committee.

(c) ADOPTION OF RULING:

(1) The Chairman and Vice Chairman, acting jointly, shall issue a written interpretative

ruling in response to any such request, unless—

(A) they cannot agree,

(B) it requires an interpretation of a significant question of first impression, or

(C) either requests that it be taken to the Committee, in which event the request shall

be directed to the Committee for a ruling.

(2) A ruling on any request taken to the Committee under subparagraph (1) shall be

adopted by a majority of the members voting and the ruling shall then be issued by the Chairman and Vice Chairman.

(d) PUBLICATION OF RULINGS: The Committee will publish in the Congressional Record, after

making appropriate deletions to ensure confidentiality, any interpretative rulings issued under this

Rule which the Committee determines may be of assistance or guidance to other Members, officers

or employees. The Committee may at any time revise, withdraw, or elaborate on interpretative

rulings.

(e) RELIANCE ON RULINGS: Whenever an individual can demonstrate to the Committee’s satisfaction that his or her conduct was in good faith reliance on an interpretative ruling issued in accordance with this Rule, the Committee will not recommend sanctions to the Senate as a result

of such conduct.

(f) RULINGS BY COMMITTEE STAFF: The Committee staff is not authorized to make rulings

or give advice, orally or in writing, which binds the Committee in any way.

RULE 12: PROCEDURES FOR COMPLAINTS INVOLVING IMPROPER USE OF THE MAILING

FRANK

(a) AUTHORITY TO RECEIVE COMPLAINTS: The Committee is directed by section 6(b) of Public Law 93–191 to receive and dispose of complaints that a violation of the use of the mailing

frank has occurred or is about to occur by a Member or officer of the Senate or by a surviving

spouse of a Member. All such complaints will be processed in accordance with the provisions

of these Rules, except as provided in paragraph (b).

(b) DISPOSITION OF COMPLAINTS:

(1) The Committee may dispose of any such complaint by requiring restitution of the

cost of the mailing, pursuant to the franking statute, if it finds that the franking violation was

the result of a mistake.

(2) Any complaint disposed of by restitution that is made after the Committee has formally commenced an adjudicatory review, must be summarized, together with the disposition,

in a report to the Senate, as appropriate.

(3) If a complaint is disposed of by restitution, the complainant, if any, shall be notified

of the disposition in writing.

(c) ADVISORY OPINIONS AND INTERPRETATIVE RULINGS: Requests for advisory opinions or

interpretative rulings involving franking questions shall be processed in accordance with Rules 10

and 11.

APPENDIX C 385

RULE 13: PROCEDURES FOR WAIVERS

(a) AUTHORITY FOR WAIVERS: The Committee is authorized to grant a waiver under the following provisions of the Standing Rules of the Senate:

(1) Section 101(h) of the Ethics in Government Act of 1978, as amended (Rule

XXXIV), relating to the filing of financial disclosure reports by individuals who are expected

to perform or who have performed the duties of their offices or positions for less than one

hundred and thirty days in a calendar year;

(2) Section 102(a)(2)(D) of the Ethics in Government Act, as amended (Rule XXXIV),

relating to the reporting of gifts;

(3) Paragraph 1 of Rule XXXV relating to acceptance of gifts; or

(4) Paragraph 5 of Rule XLI relating to applicability of any of the provisions of the

Code of Official Conduct to an employee of the Senate hired on a per diem basis.

(b) REQUESTS FOR WAIVERS: A request for a waiver under paragraph (a) must be directed

to the Chairman or Vice Chairman in writing and must specify the nature of the waiver being

sought and explain in detail the facts alleged to justify a waiver. In the case of a request submitted

by an employee, the views of his or her supervisor (as determined under paragraph 12 of Rule

XXXVII of the Standing Rules of the Senate) should be included with the waiver request.

(c) RULING: The Committee shall rule on a waiver request by recorded vote with a majority

of those voting affirming the decision. With respect to an individual’s request for a waiver in connection with the acceptance or reporting the value of gifts on the occasion of the individual’s marriage, the Chairman and the Vice Chairman, acting jointly, may rule on the waiver.

(d) AVAILABILITY OF WAIVER DETERMINATIONS: A brief description of any waiver granted

by the Committee, with appropriate deletions to ensure confidentiality, shall be made available for

review upon request in the Committee office. Waivers granted by the Committee pursuant to the

Ethics in Government Act of 1978, as amended, may only be granted pursuant to a publicly available request as required by the Act.

RULE 14: DEFINITION OF ‘‘OFFICER OR EMPLOYEE’’

(a) As used in the applicable resolutions and in these rules and procedures, the term ‘‘officer

or employee of the Senate’’ means:

(1) An elected officer of the Senate who is not a Member of the Senate;

(2) An employee of the Senate, any committee or subcommittee of the Senate, or any

Member of the Senate;

(3) The Legislative Counsel of the Senate or any employee of his office;

(4) An Official Reporter of Debates of the Senate and any person employed by the

Official Reporters of Debates of the Senate in connection with the performance of their official duties;

(5) A member of the Capitol Police force whose compensation is disbursed by the Secretary of the Senate;

(6) An employee of the Vice President, if such employee’s compensation is disbursed

by the Secretary of the Senate;

(7) An employee of a joint committee of the Congress whose compensation is disbursed

by the Secretary of the Senate;

(8) An officer or employee of any department or agency of the Federal Government

whose services are being utilized on a full-time and continuing basis by a Member, officer,

386 SENATE ETHICS MANUAL

employee, or committee of the Senate in accordance with Rule XLI(3) of the Standing Rules

of the Senate; and

(9) Any other individual whose full-time services are utilized for more than ninety days

in a calendar year by a Member, officer, employee, or committee of the Senate in the conduct

of official duties in accordance with Rule XLI(4) of the Standing Rules of the Senate.

RULE 15: COMMITTEE STAFF

(a) COMMITTEE POLICY:

(1) The staff is to be assembled and retained as a permanent, professional, nonpartisan

staff.

(2) Each member of the staff shall be professional and demonstrably qualified for the

position for which he or she is hired.

(3) The staff as a whole and each member of the staff shall perform all official duties

in a nonpartisan manner.

(4) No member of the staff shall engage in any partisan political activity directly affecting any congressional or presidential election.

(5) No member of the staff or outside counsel may accept public speaking engagements

or write for publication on any subject that is in any way related to his or her employment

or duties with the Committee without specific advance permission from the Chairman and

Vice Chairman.

(6) No member of the staff may make public, without Committee approval, any Committee Sensitive or classified information, documents, or other material obtained during the

course of his or her employment with the Committee.

(b) APPOINTMENT OF STAFF:

(1) The appointment of all staff members shall be approved by the Chairman and Vice

Chairman, acting jointly.

(2) The Committee may determine by majority vote that it is necessary to retain staff

members, including a staff recommended by a special counsel, for the purpose of a particular

preliminary inquiry, adjudicatory review, or other proceeding. Such staff shall be retained only

for the duration of that particular undertaking.

(3) The Committee is authorized to retain and compensate counsel not employed by

the Senate (or by any department or agency of the Executive Branch of the Government)

whenever the Committee determines that the retention of outside counsel is necessary or appropriate for any action regarding any complaint or allegation, preliminary inquiry, adjudicatory review, or other proceeding, which in the determination of the Committee, is more appropriately conducted by counsel not employed by the Government of the United States as a regular employee. The Committee shall retain and compensate outside counsel to conduct any

adjudicatory review undertaken after a preliminary inquiry, unless the Committee determines

that the use of outside counsel is not appropriate in the particular case.

(c) DISMISSAL OF STAFF: A staff member may not be removed for partisan, political reasons,

or merely as a consequence of the rotation of the Committee membership. The Chairman and Vice

Chairman, acting jointly, shall approve the dismissal of any staff member.

(d) STAFF WORKS FOR COMMITTEE AS WHOLE: All staff employed by the Committee or

housed in Committee offices shall work for the Committee as a whole, under the general direction

of the Chairman and Vice Chairman, and the immediate direction of the staff director or outside

counsel.

APPENDIX C 387

(e) NOTICE OF SUMMONS TO TESTIFY: Each member of the Committee staff or outside counsel

shall immediately notify the Committee in the event that he or she is called upon by a properly

constituted authority to testify or provide confidential information obtained as a result of and during his or her employment with the Committee.

RULE 16: CHANGES IN SUPPLEMENTARY PROCEDURAL RULES

(a) ADOPTION OF CHANGES IN SUPPLEMENTARY RULES: The Rules of the Committee, other

than rules established by statute, or by the Standing Rules and Standing Orders of the Senate,

may be modified, amended, or suspended at any time, pursuant to a recorded vote of not less

than four members of the full Committee taken at a meeting called with due notice when prior

written notice of the proposed change has been provided each member of the Committee.

(b) PUBLICATION: Any amendments adopted to the Rules of this Committee shall be published

in the Congressional Record in accordance with Rule XXVI(2) of the Standing Rules of the Senate.

SELECT COMMITTEE ON ETHICS

PART III—SUBJECT MATTER JURISDICTION

Following are sources of the subject matter jurisdiction of the Select Committee:

(a) The Senate Code of Official Conduct approved by the Senate in Title I of S. Res. 110,

95th Congress, April 1, 1977, as amended, and stated in Rules 34 through 43 of the Standing

Rules of the Senate;

(b) Senate Resolution 338, 88th Congress, as amended, which states, among others, the duties

to receive complaints and investigate allegations of improper conduct which may reflect on the

Senate, violations of law, violations of the Senate Code of Official Conduct and violations of rules

and regulations of the Senate; recommend disciplinary action; and recommend additional Senate

Rules or regulations to insure proper standards of conduct;

(c) Residual portions of Standing Rules 41, 42, 43 and 44 of the Senate as they existed on

the day prior to the amendments made by Title I of S. Res. 110;

(d) Public Law 93–191 relating to the use of the mail franking privilege by Senators, officers

of the Senate; and surviving spouses of Senators;

(e) Senate Resolution 400, 94th Congress, Section 8, relating to unauthorized disclosure of

classified intelligence information in the possession of the Select Committee on Intelligence;

(f) Public Law 95–105, Section 515, relating to the receipt and disposition of foreign gifts

and decorations received by Senate members, officers and employees and their spouses or dependents;

(g) Preamble to Senate Resolution 266, 90th Congress, 2d Session, March 22, 1968; and

(h) The Code of Ethics for Government Service, H. Con. Res. 175, 85th Congress, 2d Session,

July 11, 1958 (72 Stat. B12). Except that S. Res. 338, as amended by Section 202 of S. Res.

110 (April 2, 1977), and as amended by Section 3 of S. Res. 222 (1999), provides:

(g) Notwithstanding any other provision of this section, no adjudicatory review shall be initiated of any alleged violation of any law, the Senate Code of Official Conduct, rule, or regulation

which was not in effect at the time the alleged violation occurred. No provisions of the Senate

Code of Official Conduct shall apply to or require disclosure of any act, relationship, or transaction

which occurred prior to the effective date of the applicable provision of the Code. The Select

Committee may initiate an adjudicatory review of any alleged violation of a rule or law which

388 SENATE ETHICS MANUAL

was in effect prior to the enactment of the Senate Code of Official Conduct if the alleged violation

occurred while such rule or law was in effect and the violation was not a matter resolved on the

merits by the predecessor Select Committee.

APPENDIX A—OPEN AND CLOSED MEETINGS

Paragraphs 5 (b) to (d) of Rule XXVI of the Standing Rules of the Senate reads as follows:

(b) Each meeting of a standing, select, or special committee of the Senate, or any subcommittee thereof, including meetings to conduct hearings, shall be open to the public, except that

a meeting or series of meetings by a committee or a subcommittee thereof on the same subject

for a period of no more than fourteen calendar days may be closed to the public on a motion

made and seconded to go into closed session to discuss only whether the matters enumerated in

classes (1) through (6) would require the meeting to be closed followed immediately by a record

vote in open session by a majority of the members of the committee or subcommittee when it

is determined that the matters to be discussed or the testimony to be taken at such meeting or

meetings—

(1) will disclose matters necessary to be kept secret in the interests of national defense

or the confidential conduct of the foreign relations of the United States;

(2) will relate solely to matters of committee staff personnel or internal staff management or procedure;

(3) will tend to charge an individual with crime or misconduct, to disgrace or injure

the professional standing of an individual, or otherwise to expose an individual to public contempt or obloquy, or will represent a clearly unwarranted invasion of the privacy of an individual;

(4) will disclose the identity of any informer or law enforcement agent or will disclose

any information relating to the investigation or prosecution of a criminal offense that is required to be kept secret in the interests of effective law enforcement;

(5) will disclose information relating to the trade secrets or financial or commercial information pertaining specifically to a given person if—

(A) an Act of Congress requires the information to be kept confidential by Government

officers and employees; or

(B) the information has been obtained by the Government on a confidential basis, other

than through an application by such person for a specific Government financial or other

benefit, and is required to be kept secret in order to prevent undue injury to the competitive position of such person; or

(6) may divulge matters required to be kept confidential under other provisions of law

or Government regulations.

(c) Whenever any hearing conducted by any such committee or subcommittee is open to the

public, that hearing may be broadcast by radio or television, or both, under such rules as the committee or subcommittee may adopt.

(d) Whenever disorder arises during a committee meeting that is open to the public, or any

demonstration of approval or disapproval is indulged in by any person in attendance at any such

meeting, it shall be the duty of the Chair to enforce order on his own initiative and without any

point of order being made by a Senator. When the Chair finds it necessary to maintain order,

he shall have the power to clear the room, and the committee may act in closed session for so

long as there is doubt of the assurance of order.

APPENDIX C 389

APPENDIX B—‘‘SUPERVISORS’’ DEFINED

Paragraph 12 of Rule XXXVII of the Standing Rules of the Senate reads as follows:

For purposes of this rule—

(a) a Senator or the Vice President is the supervisor of his administrative, clerical, or other

assistants;

(b) a Senator who is the chairman of a committee is the supervisor of the professional, clerical, or other assistants to the committee except that minority staff members shall be under the

supervision of the ranking minority Senator on the committee;

(c) a Senator who is a chairman of a subcommittee which has its own staff and financial

authorization is the supervisor of the professional, clerical, or other assistants to the subcommittee

except that minority staff members shall be under the supervision of the ranking minority Senator

on the subcommittee;

(d) the President pro tempore is the supervisor of the Secretary of the Senate, Sergeant at

Arms and Doorkeeper, the Chaplain, the Legislative Counsel, and the employees of the Office of

the Legislative Counsel;

(e) the Secretary of the Senate is the supervisor of the employees of his office;

(f) the Sergeant at Arms and Doorkeeper is the supervisor of the employees of his office;

(g) the Majority and Minority Leaders and the Majority and Minority Whips are the supervisors of the research, clerical, and other assistants assigned to their respective offices;

(h) the Majority Leader is the supervisor of the Secretary for the Majority and the Secretary

for the Majority is the supervisor of the employees of his office; and

(i) the Minority Leader is the supervisor of the Secretary for the Minority and the Secretary

for the Minority is the supervisor of the employees of his office.

390 SENATE ETHICS MANUAL

REVISIONS

Rules of Procedure

Select Committee on Ethics

Date revised Amendment

December

1989.

Allows for a reduced quorum to take testimony except during an adjudicatory hearing.

February 1993 Adopted, under Admissibility of Evidence, paragraph (C), Rule 412 of the Federal Rules

of Evidence.

May 1993 ....... Corrected the following grammatical errors in the publication: page 2 section (d)(1)

change paragraph 11 to paragraph 12; page 14 section (k)(B) change paragraph 11 to

paragraph 12; page 15 section (5) change to ‘‘Whenever a member of the Committee is

ineligible . . .’’

April 1997 ...... Amends Rule 9(c) Procedures for Handling Committee Sensitive and Classified Documents:

(1) Strike ‘‘Committee Sensitive and classified documents and materials shall be segregated in secure filing safes.’’ Insert ‘‘Committee Sensitive documents and materials shall be stored in the Committee’s offices, with appropriate safeguards for

maintaining the security of such documents or materials. Classified documents and

materials shall be further segregated in the Committee’s offices in secure filing

safes.’’

(2) Strike ‘‘If necessary, requested materials may be taken by a member of the Committee

staff to the office of a member of the Committee for his or her examination, but the

Committee staff member shall remain with the Committee Sensitive or classified documents or materials at all times except as specifically authorized by the Chairman or

Vice Chairman.’’ Insert ‘‘If necessary, requested materials may be hand delivered

by a member of the Committee staff to the member of the Committee, or to a staff

person(s) specifically designated by the member, for the member’s or designated

staffer’s examination. A member of the Committee who has possession of Committee Sensitive documents or materials shall take appropriate safeguards for

maintaining the security of such documents or materials in the possession of the

member or his or her designated staffer.

(3) Committee Sensitive documents that are provided to a Member of the Senate in

connection with a complaint that has been filed against the Member shall be hand

delivered to the Member or to the Member’s Chief of Staff or Administrative Assistant. Committee Sensitive documents that are provided to a Member of the Senate who is the subject of a preliminary inquiry, an initial review, or an investigation, shall be hand delivered to the Member or to his or her specifically designated

representative.

(4) [Renumbered]

(5) [Renumbered]

Amends Committee Rule 14 by adding the following sentence to paragraph (c). ‘‘The

Committee shall rule on a waiver request by recorded vote, with a majority of

those voting affirming the decision. With respect to an individual’s request for a

waiver in connection with the acceptance or reporting the value of gifts on the occasion of the individual’s marriage, the Chairman and the Vice Chairman, acting

jointly, may rule on the waiver.’’

APPENDIX C 391

Date revised Amendment

November

1999.

Extensively amends the Supplementary Procedural Rules to reflect changes to the Committee charter as agreed to by S. Res. 222 [‘‘Senate Ethics Procedure Reform Resolution of 1999’’].

392 SENATE ETHICS MANUAL

I N D E X

adjudicatory review

Committee action, 373–374

definition, 358, 373

final report, 373

notice to respondent, 373

procedures, 374–375

progress reports to Committee, 373

right of appeal, 374

right to hearing, 373

scope of, 373

advisory opinion

authorization to issue, 360–361

form of request, 382

franked mail, 384

issuance of, 382–383

opportunity for comment, 382–383

procedures for issuance, 383

reliance on, 383

allegations of improper conduct

authority to investigate, 357

general, 371

amendments, changes to

supplementary rules, 387

blind trusts

approval of during recess, 370

broadcast and news coverage of proceedings, 382

classified materials

procedures for handling, 380–381

complaints

definition, 358, 371

disposition of those involving franked mail privilege, 384

filing of, 371

form and content, 371

general complaint procedures, 371

perjury involving, 379–380

APPENDIX C 393

procedures for filing, 371

processing of, 371

secrecy of, 380–381

Committee sensitive materials, procedures for handling, 380–381

confidentiality

breach of re: national security information, 363

of information in published Advisory Opinions, 383

of information in waiver requests made public, 385

of final report to Committee re: a preliminary inquiry, 372

of final report to Committee re: an adjudicatory review, 373

Congressional Record

advisory opinions, 361, 382–383

appeal, 359

disposition of complaints re: mailing frank, 384

hearing announcements in, 375

rules published in, 387

published notice of action re: adjudicatory review, 374–375

consultants, 360

counsel

authority to employ, 360

outside, 360, 272–274, 381, 386

right to, 376

depositions, 378–379

disciplinary action

authority to recommend to Senate, 357

disclosure

non-disclosure policy and agreement, 381

unauthorized re: national security information, 363

disqualification of Committee member, 357, 369–370

of staff member, 369

education

authority, 358

mandate, 379

employee

394 SENATE ETHICS MANUAL

definitions, 361–362, 385–386

Select Committee on Ethics, see staff

for purposes of Foreign Gifts and Decorations Act, 363–364

Federal Rules of Evidence, reliance upon during ‘‘Hearing’’, 377

frank, complaints involving, 384

final report

after preliminary inquiry, 372

after adjudicatory review, 373

foreign gifts and decorations, 363–367, 387

franked mail, 362

Advisory Opinion and Interpretative Rulings, 384

procedures for complaints, 384

hearing

adjudicatory procedures, 375–378

announcements in Record, 375

examiners, 379

non-public, 374–375

notice of, 375

procedures for, 374–378

right to during adjudicatory review, 373

right to during all other times, 374

supplementary procedures, 377

witnesses, 375–377

Interpretative Rulings

authority, 360

basis for, 383

mailing frank, 384

procedures for, 383–384

publication of, 384

investigators

authority to utilize, 359

judicial review

limitations re: franked mail complaints, 362

jurisdiction (subject matter) of Select Committee, 387–388

APPENDIX C 395

legislative recommendations

authority to make, 357, 379

meetings

closed (executive), 367–368

open, 368

transcripts, 369

special, 367

authority to hold, 359

quorum, 356–357, 368

National security information, unauthorized disclosure, 363

nondisclosure policy and agreement, 381

oath, 359–360

Officers

officers of Senate (definition), 361, 385–386

presiding re: hearing, 375

order of business, 368

organic authority, 356–367

perjury, 358

photography re: Committee proceedings, 382

preliminary inquiry

committee action, 372

definition, 358

final report, 372

scope and procedures, 371–372

presiding officer, see officers

privacy

re: broadcasting/photography during Committee proceeding, 382

procedure

adjudicatory review, 373–374

complaints, allegations or information, 371

changes in supplementary, 387

hearings, 374–375

preliminary inquiry, 371–372

396 SENATE ETHICS MANUAL

rules of, 367–387

prosecution by Department of Justice

referral of perjury allegation, 379

referral of violations of law, 367, 379

proxies, 370

quorum, 356–357, 368

radio

broadcasting of Committee proceedings, 382

recommendations to Senate

as result of an adjudicatory review, 373–374

re: legislative measures, 379

regulations

authorization to promulgate, 360, 362

re: procedures for

adjudicatory review, 373–374

hearings, 374–378

revisions to rules, 390

secrecy of executive session matters, 368–369, 381

Secretary of Senate

as supervisor, 389

filing public records with, 374

Select Committee on Ethics

authority for administrative functions, 359–360

duties, 356–362

membership, 356–357

ineligible to participate, 357

officers of, 367

staff committee, 386

Senate Resolution

S. Res. 110, 387

S. Res. 338, 362–368, 387

S. Res. 400, 369, 387

seniority of a Member, recommendation regarding, 357, 373

APPENDIX C 397

sensitive documents and materials, 380–381

staff

appointment of, 386

dismissal of, 386

committee, 386–387

consultants, 360

generally, 359, 386

hiring authority, 359

outside counsel, 360, 373

subpoena

authority to issue, 359, 378

issued by Committee at respondent’s request, 376

procedure for issuance, 378

subpoena power, 359, 378

who may issue, 360, 378

withdrawal of, 378

witness request not to be photographed, 382

supervisors

definition, 389

television coverage, 382

testimony

authority to take, 359

confidentiality, 368–369, 380–381

hearing examiners, 359

quorum requirement, 356–357, 368

record of, 368–369, 377–378

right to, 375

secrecy, 368–369

sworn, 375

transcripts, 377–378

travel

Foreign Gifts and Decorations Act, 363–367

foreign travel authorizations during a recess, 370

vacancies in membership, 356

violations

inadvertent, 359, 374

398 SENATE ETHICS MANUAL

of law, 356–357, 359, 371, 370–380

of Title 39, United States Code, 362

technical, 359, 374

votes

majority, 358, 368, 369, 373–374, 378, 383, 385, 386, 387

recorded, 358, 370, 373–374, 383, 385, 388

waiver

authority for, 385

description required, 361

procedures for, 385

publicly available, 385

request for, 385

witnesses

authority to call, 359

swearing of, 376

written notice to respondent, 373

written rules, authorization to adopt, 359, 387

(399)

APPENDIX D

400

SELECTED FEDERAL ETHICS-RELATED LAWS

TITLE 2, UNITED STATES CODE

2 U.S.C. § 66a. Restriction on payment of dual compensation by Secretary of Senate

Unless otherwise specifically authorized by law, no part of any appropriation disbursed by the

Secretary of the Senate shall be available for payment of compensation to any person holding any

position, for any period for which such person received compensation for holding any other position, the compensation for which is disbursed by the Secretary of the Senate.

2 U.S.C. § 439a. Use of contributed amounts for certain purposes

‘‘(a) Permitted Uses.—A contribution accepted by a candidate, and any other donation received by an individual as

support for activities of the individual as a holder of Federal office, may be used by the candidate or individual—

‘‘(1) for otherwise authorized expenditures in connection with the campaign for Federal office of the candidate or

individual;

‘‘(2) for ordinary and necessary expenses incurred in connection with duties of the individual as a holder of Federal

office;

‘‘(3) for contributions to an organization described in section 170(c) of the Internal Revenue Code of 1986; or

‘‘(4) for transfers, without limitation, to a national, State, or local committee of a political party.

‘‘(b) Prohibited Use.—

‘‘(1) In general.—A contribution or donation described in subsection (a) shall not be converted by any person to personal

use.

‘‘(2)Conversion.—For the purposes of paragraph (1), a contribution or donation shall be considered to be converted to

personal use if the contribution or amount is used to fulfill any commitment, obligation, or expense of a person that

would exist irrespective of the candidate’s election campaign or individual’s duties as a holder of Federal office,

including—

‘‘(A) a home mortgage, rent, or utility payment;

‘‘(B) a clothing purchase;

‘‘(C) a noncampaign-related automobile expense;

‘‘(D) a country club membership;

‘‘(E) a vacation or other noncampaign-related trip;

‘‘(F) a household food item;

‘‘(G) a tuition payment;

‘‘(H) admission to a sporting event, concert, theater, or other form of entertainment not associated with an election

campaign; and

‘‘(I) dues, fees, and other payments to a health club or recreational facility.’’.

TITLE 5, UNITED STATES CODE

5 U.S.C. § 557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions;

record

(a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance

with section 556 of this title.

(b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject

to section 554(d) of this title, an employee qualified to preside at hearings pursuant to section 556 of this title, shall

initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be

certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the

decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency

within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which

it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency

makes the decision without having presided at the reception of the evidence, the presiding employee or an employee

qualified to preside at hearings pursuant to section 556 of this title shall first recommend a decision, except that in

rule making or determining applications for initial licenses—

APPENDIX D 401

(1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a

decision; or

(2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution

of its functions imperatively and unavoidably so requires.

(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate

employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees

participating in the decisions—

(1) proposed findings and conclusions; or

(2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions;

and

(3) supporting reasons for the exceptions or proposed findings or conclusions.

The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial,

recommended, and tentative decisions, are a part of the record and shall include a statement of—

(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion

presented on the record; and

(B) the appropriate rule, order, sanction, relief, or denial thereof.

(d)(1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for

the disposition of ex parte matters as authorized by law—

(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body

comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be

involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;

(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may

reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to

be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding;

(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably

be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly

causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:

(i) all such written communications;

(ii) memoranda stating the substance of all such oral communications; and

(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in

clauses (i) and

(ii) of this subparagraph;

(D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this

subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent

with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim

or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account

of such violation; and

(E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case

shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible

for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at

the time of his acquisition of such knowledge.

(2) This subsection does not constitute authority to withhold information from Congress.

5 U.S.C. § 3110. Employment of relatives; restrictions

(a) For the purpose of this section—

(1) ‘‘agency’’ means—

(A) an Executive agency;

(B) an office, agency, or other establishment in the legislative branch;

(C) an office, agency, or other establishment in the judicial branch; and

(D) the government of the District of Columbia;

(2) ‘‘public official’’ means an officer (including the President and a Member of Congress), a member of the uniformed

service, an employee and any other individual, in whom is vested the authority by law, rule, or regulation, or to whom

the authority has been delegated, to appoint, employ, promote, or advance individuals, or to recommend individuals for

appointment, employment, promotion, or advancement, in connection with employment in an agency; and

(3) ‘‘relative’’ means, with respect to a public official, an individual who is related to the public official as father,

mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in- law, motherin-law, son-in-law, daughter-in-law, brother-in-law, sister-in- law, stepfather, stepmother, stepson, stepdaughter,

stepbrother, stepsister, half brother, or half sister.

(b) A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion,

or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction

or control any individual who is a relative of the public official. An individual may not be appointed, employed,

promoted, or advanced in or to a civilian position in an agency if such appointment, employment, promotion, or

advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency,

who is a relative of the individual.

402 SENATE ETHICS MANUAL

(c) An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and

money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.

(d) The Office of Personnel Management may prescribe regulations authorizing the temporary employment, in the event

of emergencies resulting from natural disasters or similar unforeseen events or circumstances, of individuals whose

employment would otherwise be prohibited by this section.

(e) This section shall not be construed to prohibit the appointment of an individual who is a preference eligible in any

case in which the passing over of that individual on a certificate of eligibles furnished under section 3317(a) of this

title will result in the selection for appointment of an individual who is not a preference eligible.

5 U.S.C. § 3303. Competitive service; recommendations of Senators or Representatives

An individual concerned in examining an applicant for or appointing him in the competitive

service may not receive or consider a recommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant.

5 U.S.C. § 5533. Dual pay from more than one position; limitations; exceptions

(a) Except as provided by subsections (b), (c), and (d) of this section, an individual is not entitled to receive basic

pay from more than one position for more than an aggregate of 40 hours of work in one calendar week (Sunday through

Saturday).

(b) Except as otherwise provided by subsection (c) of this section, the Office of Personnel Management, subject to the

supervision and control of the President, may prescribe regulations under which exceptions may be made to the

restrictions in subsection

(a) of this section when appropriate authority determines that the exceptions are warranted because personal services

otherwise cannot be readily obtained.

(c)(1) Unless otherwise authorized by law and except as otherwise provided by paragraph (2) or (4) of this subsection,

appropriated funds are not available for payment to an individual of pay from more than one position if the pay of

one of the positions is paid by the Secretary of the Senate or the Clerk of the House of Representatives, or one of

the positions is under the Office of the Architect of the Capitol, and if the aggregate gross pay from the positions

exceeds $7,724 a year ($10,540, in the case of pay disbursed by the Secretary of the Senate).

(2) Notwithstanding paragraph (1) of this subsection, appropriated funds are not available for payment to an individual

of pay from more than one position, for each of which the pay is disbursed by the Clerk of the House of

Representatives, if the aggregate gross pay from those positions exceeds the maximum per annum gross rate of pay

authorized to be paid to an employee out of the clerk hire allowance of a Member of the House.

(3) For the purposes of this subsection, ‘‘gross pay’’ means the annual rate of pay (or equivalent thereof in the case

of an individual paid on other than an annual basis) received by an individual.

(4) Paragraph (1) of this subsection does not apply to pay on a when-actually- employed basis received from more

than one consultant or expert position if the pay is not received for the same day.

(d) Subsection (a) of this section does not apply to—

(1) pay on a when-actually-employed basis received from more than one consultant or expert position if the pay is

not received for the same hours of the same day;

(2) pay consisting of fees paid on other than a time basis;

(3) pay received by a teacher of the public schools of the District of Columbia for employment in a position during

the summer vacation period;

(4) pay paid by the Tennessee Valley Authority to an employee performing part-time or intermittent work in addition

to his normal duties when the Authority considers it to be in the interest of efficiency and economy;

(5) pay received by an individual holding a position—

(A) the pay of which is paid by the Secretary of the Senate or the Clerk of the House of Representatives; or

(B) under the Architect of the Capitol;

(6) pay paid by the United States Coast Guard to an employee occupying a part-time position of lamplighter; and

(7) pay within the purview of any of the following statutes:

(A) section 162 of title 2;

(B) section 23(b) of title 13;

(C) section 327 of title 15;

(D) section 907 of title 20;

(E) section 873 of title 33; or

(F) section 631 or 631a of title 31, District of Columbia Code.

(e)(1) This section does not apply to an individual employed under sections 174j–1 to 174j–7 or 174k of title 40.

(2) Subsection (c) of this section does not apply to pay received by a teacher of the public schools of the District of

Columbia for employment in a position during the summer vacation period.

5 U.S.C. § 7342. Receipt and disposition of foreign gifts and decorations

(a) For the purpose of this section—

(1) ‘‘employee’’ means—

APPENDIX D 403

(A) an employee as defined by section 2105 of this title and an officer or employee of the United States Postal Service

or of the Postal Rate Commission;

(B) an expert or consultant who is under contract under section 3109 of this title with the United States or any agency,

department, or establishment thereof, including, inthe case of an organization performing services under such section,

any individual involved in the performance of such services;

(C) an individual employed by, or occupying an office or position in, the government of a territory or possession of

the United States or the government of the District of Columbia;

(D) a member of a uniformed service;

(E) the President and the Vice President;

(F) a Member of Congress as defined by section 2106 of this title (except the Vice President) and any Delegate to

the Congress; and

(G) the spouse of an individual described in subparagraphs (A) through (F) (unless such individual and his or her spouse

are separated) or a dependent (within the meaning of section 152 of the Internal Revenue Code of 1986) of such an

individual, other than a spouse or dependent who is an employee under subparagraphs (A) through (F);

(2) ‘‘foreign government’’ means-

(A) any unit of foreign governmental authority, including any foreign national, State, local, and municipal government;

(B) any international or multinational organization whose membership is composed of any unit of foreign government

described in subparagraph (A); and

(C) any agent or representative of any such unit or suchorganization, white acting as such;

(3) ‘‘gift’’ means a tangible or intangible present (other than a decoration) tendered by, or received from, a foreign

government;

(4) ‘‘decoration’’ means an order, device, medal, badge, insignia, emblem, or award tendered by, or received from, a

foreign government;

(5) ‘‘minimal value’’ means a retail value in the United States at the time of acceptance of $100 or less, except that-

(A) on January 1, 1981, and at 3 year intervals thereafter, ‘‘minimal value’’ shall be redefined in regulations prescribed

by the Administrator of General Services, in consultation with the Secretary of State, to reflect changes in the consumer

price index for the immediately preceding 3-year period; and

(B) regulations of an employing agency may define ‘‘minimal value’’ for its employees to be less than the value

established under this paragraph; and (6) ‘‘employing agency’’ means

(A) the Committee on Standards of Official Conduct of the House of Representatives, for Members and employees of

the House of Representatives, except that those responsibilities specified in subsections (c)(2)(A), (e)(1), and (g)(2)(B)

shall be carried out by the Clerk of the House;

(B) the Select Committee on Ethics of the Senate, for Senators and employees of the Senate, except that those

responsibilities (other than responsibilities involving approval of the employing agency) specified in subsections

(c)(2),(d), and (g)(2)(B) shall be carried out by the Secretary of the Senate;

(C) the Administrative Office of the United States Courts, for judges and judicial branch employees; and

(D) the department, agency, office, or other entity in which an employee is employed, for other legislative branch

employees and for all executive branch employees.

(b) An employee may not-

(l) request or otherwise encourage the tender of a gift or decoration; or

(2) accept a gift or decoration, other than in accordance with, the provisions of subsections (c) and (d).

(c)(1) The Congress consents to—

(A) the accepting and retaining by an employee of a gift of minimal value tendered and received as a souvenir or mark

of courtesy; and

(B) the accepting by an employee of a gift of more than minimal value when such gift is in the nature of an educational

scholarship or medical treatment or when it appears that to refuse the gift would likely cause offense or embarrassment

or otherwise adversely affect the foreign relations of the United States, except that

(i) a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and,

upon acceptance, shall become the property of the United States; and

(ii) an employee may accept gifts of travel or expenses for travel taking place entirely outside the United States (such

as transportation, food, and lodging) of more than minimal value if such acceptance .is appropriate, consistent with the

interests of the United States, and permitted by the employing agency and any regulations which may be prescribed

by the employing agency.

(2) Within 60 days after accepting a tangible gift of more than minimal value (other than a gift described in paragraph

(1)(B)(ii)), an employee shall-

(A) deposit the gift for disposal with his or her employing agency; or

(B) subject to the approval of the employing agency, deposit the gift with that agency for official use.Within 30 days

after terminating the official use of a gift under subparagraph (B), the employing agency shall forward the gift to the

Administrator of General Services in accordance with subsection (e)(1) or provide for its disposal in accordance with

subsection (e)(2).

(3) When an employee deposits a gift of more than minimal value for disposal or for official use pursuant to paragraph

(2), or within 30 days after accepting travel or travel expenses as provided in paragraph (1)(B)(ii) unless such travel

or travel expenses are accepted in accordance with specific instructions of his or her employing agency, the employee

shall file a statement with his or her employing agency or its delegate containing the information prescribed in

subsection (f) for that gift.

404 SENATE ETHICS MANUAL

(d) The Congress consents to the accepting, retaining, and wearing by an employee of a decoration tendered in

recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious

performance, subject to the approval of the employing agency of such employee. Without this approval, the decoration

is deemed to have been accepted on behalf of the United States, shall become the property of the United States, and

shall be deposited by the employee, within sixty days of acceptance, with the employing agency for official use, for

forwarding to the Administrator of General Services for disposal in accordance with subsection (e)(1), or for disposal

in accordance with subsection (e)(2).

(e)(1) Except as provided in paragraph (2), gifts and decorations that have been deposited with an employing agency

for disposal shall be (A) returned to the donor, or (B) forwarded to the Administrator of General Services for transfer,

donation, or other disposal in accordance with the provisions of the Federal Property and Administrative Services Act

of 1949. However, no gift or decoration that has been deposited for disposal may be sold without the approval of the

Secretary of State, upon a determination that the sale will not adversely affect the foreign relations of the United States.

Gifts and decorations may be sold by negotiated sale.

(2) Gifts and decorations received by a Senator or an employee of the Senate that are deposited with the Secretary

of the Senate for disposal, or are deposited for an official use which has terminated, shall be disposed of by the

Commission on Arts and Antiquities of the United States Senate. Any such gift or decoration may be returned by the

Commission to the donor or may be transferred or donated by the Commission, subject to such terms and conditions

as it may prescribe,

(A) to an agency or instrumentality of (i) the United States, (ii) a State, territory, or possession of the United States,

or a political subdivision of the foregoing, or (iii) the District of Columbia, or

(B) to an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 which is exempt from

taxation under section 501(a) of such Code. Any such gift or decoration not disposed of as provided in the preceding

sentence shall be forwarded to the Administrator of General Services for disposal in accordance with paragraph (1).

If the Administrator does not dispose of such gift or decoration within one year, he shall, at the request of the

Commission, return it to the Commission and the Commission may dispose of such gift or decoration in such manner

as it considers proper, except that such gift or decoration may be sold only with the approval of the Secretary of State

upon a determination that the sale will not adversely affect the foreign relations of the United States.

(f)(1) Not later than January 31 of each year, each employing agency or its delegate shall compile a listing of all

statements filed during the preceding year by the employees of that agency pursuant to subsection (c)(3) and shall

transmit such listing to the Secretary of State who shall publish a comprehensive listing of all such statements in the

Federal Register.

(2)Such listings shall include for each tangible gift reported(A) the name and position of the employee;

(B) a brief description of the gift and the circumstances justifying acceptance;

(C) the identity, if known, of the foreign government and thename and position of the individual who presented the

gift; (D) the date of acceptance of the gift;

(E) the estimated value in the United States of the gift at the time of acceptance; and

(F) disposition or current location of the gift.

(3) Such listings shall include for each gift of travel or travel expenses-

(A) the name and position of the employee;

(B) a brief description of the gift and the circumstances justifying acceptance; and

(C) the identity, if known, of the foreign government and the name and position of the individual who presented the

gift.

(4) In transmitting such listings for the Central Intelligence Agency, the Director of Central Intelligence may delete

the information described in subparagraphs (A) and (C) of paragraphs (2) and (3) if the Director certifies in writing

to the Secretary of State that the publication of such information could adversely affect United States intelligence

sources.

(g)(1) Each employing agency shall prescribe such regulations as may be necessary to carry out the purpose of this

section. For all employing agencies in the executive branch, such regulations shall be prescribed pursuant to guidance

provided by the Secretary of State. These regulations shall be implemented by each employing agency for its employees.

(2) Each employing agency shall

(A) report to the Attorney General cases in which there is reason to believe that an employee has violated this section;

(B) establish a procedure for obtaining an appraisal, when necessary, of the value of gifts; and

(C) take any other actions necessary to carry out the purpose of this section.

(h) The Attorney General may bring a civil action in any district court of the United States against any employee who

knowingly solicits or accepts a gift from a foreign government not consented to by this section or who fails to deposit

or report such gift as required by this section. The court in which such action is brought may assess a penalty against

such employee in any amount not to exceed the retail value of the gift improperly solicited or received plus $5,000.

(i) The President shall direct all Chiefs of a United States Diplomatic Mission to inform their host governments that

it is a general policy of the United States Government to prohibit United States Government employees from receiving

gifts or decorations of more than minimal value.

(j) Nothing in this section shall be construed to derogate any regulation prescribed by any employing agency which

provides for more stringent limitations on the receipt of gifts and decorations by its employees.

(k) The provisions of this section do not apply to grants and other forms of assistance to which section 108A of the

Mutual Educational and Cultural Exchange Act of 1961 applies.

APPENDIX D 405

5 U.S.C. § 7351. Gifts to superiors

(a) An employee may not—

(1) solicit a contribution from another employee for a gift to an official superior;

(2) make a donation as a gift or give a gift to an official superior; or

(3) accept a gift from an employee receiving less pay than himself.

(b) An employee who violates this section shall be subject to appropriate disciplinary action by the employing agency

or entity.

(c) Each supervising ethics office (as defined in section 7353(d)(1)) is authorized to issue regulations implementing this

section, including regulations exempting voluntary gifts or contributions that are given or received for special occasions

such as marriage or retirement or under other circumstances in which gifts are traditionally given or exchanged.

5 U.S.C. § 7353. Gifts to Federal employees

(a) Except as permitted by subsection (b), no Member of Congress or officer or employee of the executive, legislative,

or judicial branch shall solicit or accept anything of value from a person—

(1) seeking official action from, doing business with, or (in the case of executive branch officers and employees)

conducting activities regulated by, the individual’s employing entity; or

(2) whose interests may be substantially affected by the performance or nonperformance of the individual’s official

duties.

(b)(1) Each supervising ethics office is authorized to issue rules or regulations implementing the provisions of this

section and providing for such reasonable exceptions as may be appropriate.

(2)(A) Subject to subparagraph (B), a Member, officer, or employee may accept a gift pursuant to rules or regulations

established by such individual’s supervising ethics office pursuant to paragraph (1).

(B) No gift may be accepted pursuant to subparagraph (A) in return for being influenced in the performance of any

official act.

(3) Nothing in this section precludes a Member, officer, or employee from accepting gifts on behalf of the United States

Government or any of its agencies in accordance with statutory authority.

(c) A Member of Congress or an officer or employee who violates this section shall be subject to appropriate disciplinary

and other remedial action in accordance with any applicable laws, Executive orders, and rules or regulations.

(d) For purposes of this section—

(1) the term ‘‘supervising ethics office’’ means—

(A) the Committee on Standards of Official Conduct of the House of Representatives or the House of Representatives

as a whole, for Members, officers, and employees of the House of Representatives;

(B) the Select Committee on Ethics of the Senate, or the Senate as a whole, for Senators, officers, and employees of

the Senate;

(C) the Judicial Conference of the United States for judges and judicial branch officers and employees;

(D) the Office of Government Ethics for all executive branch officers and employees; and

(E) in the case of legislative branch officers and employees other than those specified in subparagraphs (A) and (B),

the committee referred to in either such subparagraph to which reports filed by such officers and employees under title

I of the Ethics in Government Act of 1978 are transmitted under such title, except that the authority of this section

may be delegated by such committee with respect to such officers and employees; and

(2) the term ‘‘officer or employee’’ means an individual holding an appointive or elective position in the executive,

legislative, or judicial branch of Government, other than a Member of Congress.

5 U.S.C. App. § 501. Outside earned income limitation

(a) Outside earned income limitation.—

(1) Except as provided by paragraph (2), a Member or an officer or employee who is a noncareer officer or employee

and who occupies a position classified above GS–15 of the General Schedule or, in the case of positions not under

the General Schedule, for which the rate of basic pay is equal to or greater than 120 percent of the minimum rate

of basic pay payable for GS–15 of the General Schedule, may not in any calendar year have outside earned income

attributable to such calendar year which exceeds 15 percent of the annual rate of basic pay for level II of the Executive

Schedule under section 5313 of title 5, United States Code, as of January 1 of such calendar year.

(2) In the case of any individual who during a calendar year becomes a Member or an officer or employee who is

a noncareer officer or employee and who occupies a position classified above GS–15 of the General Schedule or, in

the case of positions not under the General Schedule, for which the rate of basic pay is equal to or greater than 120

percent of the minimum rate of basic pay payable for GS–15 of the General Schedule, such individual may not have

outside earned income attributable to the portion of that calendar year which occurs after such individual becomes a

Member or such an officer or employee which exceeds 15 percent of the annual rate of basic pay for level II of the

Executive Schedule under section 5313 of title 5, United States Code, as of January 1 of such calendar year multiplied

by a fraction the numerator of which is the number of days such individual is a Member or such officer or employee

during such calendar year and the denominator of which is 365.

(b) Honoraria prohibition.—An individual may not receive any honorarium while that individual is a Member, officer

or employee.

(c) Treatment of charitable contributions.—Any honorarium which, except for subsection (b), might be paid to a

406 SENATE ETHICS MANUAL

Member, officer or employee, but which is paid instead on behalf of such Member, officer or employee to a charitable

organization, shall be deemed not to be received by such Member, officer or employee. No such payment shall exceed

$2,000 or be made to a charitable organization from which such individual or a parent, sibling, spouse, child, or

dependent relative of such individual debives any financial benefit.

5 U.S.C. App. § 502. Limitations on outside employment

(a) Limitations.—A Member or an officer or employee who is a noncareer officer or employee and who occupies a

position classified above GS–15 of the General Schedule or, in the case of positions not under the General Schedule,

for which the rate of basic pay is equal to or greater than 120 percent of the minimum rate of basic pay payable for

GS–15 of the General Schedule shall not—

(1) receive compensation for affiliating with or being employed by a firm, partnership, association, corporation, or other

entity which provides professional services involving a fiduciary relationship;

(2) permit that Member’s, officer’s, or employee’s name to be used by any such firm, partnership, association,

corporation, or other entity;

(3) receive compensation for practicing a profession which involves a fiduciary relationship;

(4) serve for compensation as an officer or member of the board of any association, corporation, or other entity; or

(5) receive compensation for teaching, without the prior notification and approval of the appropriate entity referred to

in section 503.

(b) Teaching compensation of justices and judges retired from regular active service.—For purposes of the limitation

under section 501(a), any compensation for teaching approved under subsection (a)(5) of this section shall not be treated

as outside earned income—

(1) when received by a justice of the United States retired from regular active service under section 371(b) of title

28, United States Code;

(2) when received by a judge of the United States retired from regular active service under section 371(b) of title 28,

United States Code, for teaching performed during any calendar year for which such judge has met the requirements

of subsection (f) of section 371 of title 28, United States Code, as certified in accordance with such subsection; or

(3) when received by a justice or judge of the United States retired from regular active service under section 372(a)

of title 28, United States Code.

5 U.S.C. App. § 503. Administration

This title shall be subject to the rules and regulations of—

(1) and administered by—

(A) the Committee on Standards of Official Conduct of the House of Representatives, with respect to Members, officers,

and employees of the House of Representatives; and

(B) in the case of Senators and legislative branch officers and employees other than those officers and employees

specified in subparagraph (A), the committee to which reports filed by such officers and employees under title I are

transmitted under such title, except that the authority of this section may be delegated by such committee with respect

to such officers and employees;

(2) the Office of Government Ethics and administered by designated agency ethics officials with respect to officers and

employees of the executive branch; and

(3) and administered by the Judicial Conference of the United States (or such other agency as it may designate) with

respect to officers and employees of the judicial branch.

5 U.S.C. App. § 504. Civil penalties

(a) Civil action.—The Attorney General may bring a civil action in any appropriate United States district court against

any individual who violates any provision of section 501 or 502. The court in which such action is brought may assess

against such individual a civil penalty of not more than $10,000 or the amount of compensation, if any, which the

individual received for the prohibited conduct, whichever is greater.

(b) Advisory opinions.—Any entity described in section 503 may render advisory opinions interpreting this title, in

writing, to individuals covered by this title. Any individual to whom such an advisory opinion is rendered and any

other individual covered by this title who is involved in a fact situation which is indistinguishable in all material aspects,

and who, after the issuance of such advisory opinion, acts in good faith in accordance with its provisions and findings

shall not, as a result of such actions, be subject to any sanction under subsection (a).

5 U.S.C. App. § 505. Definitions

For purposes of this title:

(1) The term ‘‘Member’’ means a Senator in, a Representative in, or a Delegate or Resident Commissioner to, the

Congress.

(2) The term ‘‘officer or employee’’ means any officer or employee of the Government except any special Government

employee (as defined in section 202 of title 18, United States Code).

APPENDIX D 407

(3) The term ‘‘honorarium’’ means a payment of money or anything of value for an appearance, speech or article

(including a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official

duties or the payment is made because of the individual’s status with the Government) by a Member, officer or

employee, excluding any actual and necessary travel expenses incurred by such individual (and one relative) to the extent

that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced

by the amount of any such expenses to the extent that such expenses are not paid or reimbursed.

(4) The term ‘‘travel expenses’’ means, with respect to a Member, officer or employee, or a relative of any such

individual, the cost of transportation, and the cost of lodging and meals while away from his or her residence or principal

place of employment.

(5) The term ‘‘charitable organization’’ means an organization described in section 170(c) of the Internal Revenue Code

of 1986.

TITLE 18, UNITED STATES CODE

18 U.S.C. § 201. Bribery of public officials and witnesses

(a) For the purpose of this section—

(1) the term ‘‘public official’’ means Member of Congress, Delegate, or Resident Commissioner, either before or after

such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any

department, agency or branch of Government thereof, including the District of Columbia, in any official function, under

or by authority of any such department, agency, or branch of Government, or a juror;

(2) the term ‘‘person who has been selected to be a public official’’ means any person who has been nominated or

appointed to be a public official, or has been officially informed that such person will be so nominated or appointed;

and

(3) the term ‘‘official act’’ means any decision or action on any question, matter, cause, suit, proceeding or controversy,

which may at any time be pending, or which may by law be brought before any public official, in such official’s official

capacity, or in such official’s place of trust or profit.

(b) Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who

has been selected to be a public official, or offers or promises any public official or any person who has been selected

to be a public official to give anything of value to any other person or entity, with intent—

(A) to influence any official act; or

(B) to influence such public official or person who has been selected to be a public official to commit or aid in

committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United

States; or

(C) to induce such public official or such person who has been selected to be a public official to do or omit to do

any act in violation of the lawful duty of such official or person;

(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks,

receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return

for:

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for

the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person;

(3) directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises

such person to give anything of value to any other person or entity, with intent to influence the testimony under oath

or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court,

any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the

laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself

therefrom;

(4) directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value

personally or for any other person or entity in return for being influenced in testimony under oath or affirmation as

a witness upon any such trial, hearing, or other proceeding, or in return for absenting himself therefrom;

shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever

is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office

of honor, trust, or profit under the United States.

(c) Whoever—

(1) otherwise than as provided by law for the proper discharge of official duty—

(A) directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or

person selected to be a public official, for or because of any official act performed or to be performed by such public

official, former public official, or person selected to be a public official; or

(B) being a public official, former public official, or person selected to be a public official, otherwise than as provided

408 SENATE ETHICS MANUAL

by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to

receive or accept anything of value personally for or because of any official act performed or to be performed by such

official or person;

(2) directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony

under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding,

before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer

authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person’s

absence therefrom;

(3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally

for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon any

such trial, hearing, or other proceeding, or for or because of such person’s absence therefrom;

shall be fined under this title or imprisoned for not more than two years, or both.

(d) Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c) shall not be construed to

prohibit the payment or receipt of witness fees provided by law, or the payment, by the party upon whose behalf a

witness is called and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable

value of time lost in attendance at any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable

fee for time spent in the preparation of such opinion, and in appearing and testifying.

(e) The offenses and penalties prescribed in this section are separate from and in addition to those prescribed in sections

1503, 1504, and 1505 of this title.

18 U.S.C. § 202. Definitions

(a) For the purpose of sections 203, 205, 207, 208, and 209 of this title the term ‘‘special Government employee’’

shall mean an officer or employee of the executive or legislative branch of the United States Government, of any

independent agency of the United States or of the District of Columbia, who is retained, designated, appointed, or

employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period

of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis, a parttime United States commissioner, a part-time United States magistrate, or, regardless of the number of days of

appointment, an independent counsel appointed under chapter 40 of title 28 and any person appointed by that

independent counsel under section 594(c) of title 28. Notwithstanding the next preceding sentence, every person serving

as a part-time local representative of a Member of Congress in the Member’s home district or State shall be classified

as a special Government employee. Notwithstanding section 29(c) and (d) of the Act of August 10, 1956 (70A Stat.

632; 5 U.S.C. 30r(c) and (d)), a Reserve officer of the Armed Forces, or an officer of the National Guard of the United

States, unless otherwise an officer or employee of the United States, shall be classified as a special Government

employee while on active duty solely for training. A Reserve officer of the Armed Forces or an officer of the National

Guard of the United States who is voluntarily serving a period of extended active duty in excess of one hundred and

thirty days shall be classified as an officer of the United States within the meaning of section 203 and sections 205

through 209 and 218. A Reserve officer of the Armed Forces or an officer of the National Guard of the United States

who is serving involuntarily shall be classified as a special Government employee. The terms ‘‘officer or employee’’

and ‘‘special Government employee’’ as used in sections 203, 205, 207 through 209, and 218, shall not include enlisted

members of the Armed Forces.

(b) For the purposes of sections 205 and 207 of this title, the term ‘‘official responsibility’’ means the direct

administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either

personally or through subordinates, to approve, disapprove, or otherwise direct Government action.

(c) Except as otherwise provided in such sections, the terms ‘‘officer’’ and ‘‘employee’’ in sections 203, 205, 207

through 209, and 218 of this title shall not include the President, the Vice President, a Member of Congress, or a Federal

judge.

(d) The term ‘‘Member of Congress’’ in sections 204 and 207 means—

(1) a United States Senator; and

(2) a Representative in, or a Delegate or Resident Commissioner to, the House of Representatives.

(e) As used in this chapter, the term—

(1) ‘‘executive branch’’ includes each executive agency as defined in title 5, and any other entity or administrative unit

in the executive branch;

(2) ‘‘judicial branch’’ means the Supreme Court of the United States; the United States courts of appeals; the United

States district courts; the Court of International Trade; the United States bankruptcy courts; any court created pursuant

to article I of the United States Constitution, including the Court of Appeals for the Armed Forces, the United States

Claims Court, and the United States Tax Court, but not including a court of a territory or possession of the United

States; the Federal Judicial Center; and any other agency, office, or entity in the judicial branch; and

(3) ‘‘legislative branch’’ means—

(A) the Congress; and

(B) the Office of the Architect of the Capitol, the United States Botanic Garden, the General Accounting Office, the

Government Printing Office, the Library of Congress, the Office of Technology Assessment, the Congressional Budget

Office, the United States Capitol Police, and any other agency, entity, office, or commission established in the legislative

APPENDIX D 409

branch.

February 7, 1979

79–84

MEMORANDUM OPINION FOR THE SPECIAL COUNSEL, MERIT

SYSTEMS PROTECTION BOARD

Merit Systems Protection Board—Special Counsel—

Employment of Temporary or Intermittent

Attorneys and Investigators (31 U.S.C. § 686)

This responds to yourrequest for our views on whether you desire to employ temporary or

intermittent attorneys and investigators to investigate and assist in the processing of your cases is

consistent with relevant law and ethical considerations.[FN1]

It is our understanding that you want to appoint both employees detailed from other Federal

agencies and individuals from the private sector. They will serve under your supervision on a parttime basis not to exceed 6 months. These employees will be appointed when you have a backlog

of work and will perform the same functions as permanent employees of your Office; in particular,

they will screen cases and interview witnesses.

I.

Temporary or intermittent experts and consultants may be retained by agencies when authorized by an appropriation or other statute. 5 U-S.C. 3109. Although your recent appropriation act

authorizes you to employ experts and consultants, Act of Sept. 29, 1979, Pub. L. No- 96–74, 93

Stat. 572, in our view this appropriation may not be used to hire employees to perform the same

functions as are performed by regular employees in your Office. Subchapter 1–2 of The Federal

Personnel Manual, Chapter 304, provides a definition of ‘‘consultant’’ and ‘‘expert.’’ A consultant

who is excepted from the competitive service is ‘‘a person who serves as an advisor to an officer

or instrumentality of the Government, as distinguished from an officer or employee who carries

out the agency’s duties and responsibilities.’’ A consultant position is defined as ‘‘a position requiring the performance of purely advisory or consultant services, not including performance of operating functions.’’ The definition of expert is somewhat broader but, in our view, does not provide

a basis for the plan you contemplate. The Federal Personnel Manual describes an expert as ‘‘a

person with excellent qualifications and a high degree of attainment in a professional * * * field.

His knowledge and mastery of the principles, practices, problems, methods, and techniques of his

field of activity, or of a specialized area in a field, are clearly superior to those usually possessed

by ordinarily competent persons in that activity.’’ An expert position is one that ‘‘for satisfactory

performance, requires the services of an expert in the particular field * * * and with duties that

cannot be performed satisfactorily by someone not an expert in that field.’’ This, although your

appropriation for temporary experts could most likely be used to hire particularly qualified attorneys or investigators to work on unusually difficult matters, we do not understand this to be your

current plan, and we do not believe that short-term employees hired to perform work exactly like

that of your regular staff can properly be considered experts.

II.

Because we believe that the temporary agency and private-sector employees you want to appoint cannot be considered experts or consultants, the question arises whether there is any other

statutory authorization for hiring them.

EMPLOYEES FROM OTHER FEDERAL AGENCIES

Section 686(a) of title 31, United States Code, authorizes purchase of services by one Federal

Government entity from another Federal Government entity. This statute states:

Any executive department or independent establishment of the Government, or any bureau or

office thereof, if funds are available therefore and if it is determined by the head of such executive

410 SENATE ETHICS MANUAL

department, establishment, bureau, or office to be in the interest of the Government so to do, may

place orders with any other such department, establishment, bureau, or office for * * * services.

of any kind that such requisitioned Federal agency may be in a position to supply or equipped

to render, and shall pay promptly by check to such Federal agency as may be requisitioned, *

* * all or part of the estimated or actual cost thereof * * *.

We read § 686(a) as allowing you to request the services of attorneys and investigators employed in another Federal

Government entity that has authority to conduct activities similar to those the employees will be pursuing for you. Two

prerequisites to your use of funds to reimburse the transferor agency are that the funds were appropriated for the type

of work you will have the detailed attorneys and investigators perform,(fn.2)and that you provide an adequate rationale

why the work cannot be satisfactorily performed by your own staff or by using the funds to increase your agency’s

staff. This second requirement would be met if you can make a showing that Government efficiency is best served

by bringing into your agency on a temporary basis employees who have gained experience in the kind of work to be

performed while working for other agencies rather than hiring new employees and having to train them for a job that

will last at most 6 months.

EMPLOYEES FROM THE PRIVATE SECTOR

You also propose to accept the gratuitous services of attorneys and investigators from the private sector.(fn.3) The acceptance of voluntary services is prohibited by 31 U.S.C. 665(b), which

states that:

No officer or employee of the United States shall accept voluntary service for the United

States or employ personal service in excess of that authorized by law * * *.

This has been interpreted by the Attorney General to prohibit a contract for services for which no payment is required,

but the prohibition on acceptance of voluntary services was not intended to cover services rendered gratuitously in an

official capacity under a regular appointment to a position otherwise permitted by law to be nonsalaried. 30 Op. Att’y.

Gen. 51 (1913). See also subchapter l–4.d of The Federal Personnel Manual, Chapter 311.

Subchapter 1–4 of Chapter 311 defines gratuitous service as that offered and accepted without

pay under an appointment to perform duties the pay for which has not been established by law.

If Congress has fixed a minimum salary for a position, an individual cannot waive that salary.

Glavey v. United States, 182 U.S. 595 (1901). Cf., MacMath v. United States, 248 U.S. 151

(1918). You are in a better position than we to determine as a factual matter whether the attorneys

and investigators you hope to hire from the private sector will be filling jobs for which a minimum

salary has been fixed by law. Even if there is such a minimum salary set, this element of the

definition of gratuitous service could be interpreted to mean that if the Government is to pay anything more than a nominal sum, the minimum salary established by law must be paid, but that

‘‘a position for which no minimum salary is set by law’’ includes all those positions for which

no salary or a nominal salary is paid. Section 5102(c)(13) of title 5, U.S. Code, states that chapter

51 of title 5 providing for the classification of pay and allowances does not apply to employees

who serve without pay or at nominal rates of pay.

We conclude, therefore, that you can appoint attorneys and investigators from the private sector and that you can pay a nominal sum such as you propose to those providing the gratuitous

service. We do not think, as stated above, that your appropriation for hiring temporary consultants

or experts can be used to provide these funds and thus you will have to be able to justify the

appointment and expenditure under 5 U.S.C. 1206(j), authorizing you to appoint the legal administrative and support personnel necessary to perform the functions of your Office, and as an expense

necessary thereto under your recent appropriation act.

III.

Finally, we consider whether the plan you propose is consistent with relevant conflict of interest laws. This advice is necessarily general and does not preclude the need for careful consideration

of particular factual circumstances.

The employees whose services you obtain from other Federal agencies will continue to be

subject to the conflict of interest restrictions for regular Government employees. Your proposed

plan raises no unusual questions as to those employees and therefore we see no need to discuss

the requirements in detail.

Those appointed from the private sector will be subject to the same requirements as regular

Government employees, but they may be made subject to the less stringent conflict of interest requirements for special Government employees if you decide in advance to appoint them to serve

less than 130 days in any 365-day period. 18 U.S.C. 202(a) defines ‘‘special government emVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00424 Fmt 5222 Sfmt 5222 SMANUAL.013 ETHICS1 PsN: ETHICS1
APPENDIX D 411

ployee’’ as ‘‘an officer or employee of the executive or legislative branch of the United States

Government, of any independent agency of the United States * * * who is retained, designated,

appointed, or employed to perform, with or without compensation, for not to exceed one hundred

and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis * * *.’’ In estimating in advance of appointment

the number of days an employee may serve, an agency must in good faith find that the special

Government employee will serve no more than 130 days; a part of a day must be counted as a

full day, and a Saturday, Sunday, or holiday on which duties are to be performed must be counted

equally with a regular work day. Federal Personnel Manual, Chapter 735, Appendix C. If an employee does, however, serve for more than the 130 days, he or she will nevertheless continue to

be regarded as a special Government employee so long as the original estimate was made in good

faith. Id. Once an employee is appointed as a special Government employee, the restrictions imposed by the conflict of interest laws apply even on days the employee does not serve the Government. Id.

COMPENSATION

Sections 203 and 209 of title 18 limit the compensation employees may receive in addition

to their Government salary. The restrictions of § 209 on the receipt of ‘‘salary, or any contribution

to or supplementation of salary’’ as compensation for services as an employee of the United States

from any source other than the Government of the United States is expressly not applicable to

special Government employees. § 209(c). The restrictions found in § 203(a) on receipt of outside

compensation when one is serving as an officer or employee of the United States in relation to

any matter in which the United States is a party or has a direct and substantial interest before

any department, agency, or commission, applies to special Government employees only in relation

to particular matter involving a specific party or parties in which the employee has at any time

participated personally and substantially as a Government employee or as a special Government

employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, or which is pending in the department or agency of the Government in which

he or she is serving.(fn.4) Furthermore, § 203 applies to matters pending in the department only

when a special Government employee has served in the agency for no more than 60 days during

the immediately preceding 365 days. § 203(c).

If you do not hire private employees as special Government employees, they will be subject,

as are the regular Government employees whose services you might utilize, to the restrictions of

§ 203. But even if the private employees were special Government employees, if they serve without compensation, they nevertheless will not be subject to § 209. See § 209(e).

If the employees from the private sector are regular employees and are paid by the Government, § 209 requires [hat their private-sector compensation be reviewed to ensure that it does not

include payment for Government work and to reflect their more limited participation in the private

firm’s business. To satisfy § 203, these employees’ salaries will have to be reviewed further, if

necessary, 10 ensure that they do not share fees for representational services performed by another

as outlined above. (fn.5)

REPRESENTATION RESTRICTIONS

Regular Government employees must refrain from acting as agents or attorneys for anyone

before any department, agency, court, court-martial, officer, or any civil, military, or naval commission, in connection with any particular matter in which the United States is a party or has a direct

and substantial interest. 18 U.S.C. § 205. This section restricts special Government employees in

more limited fashion; such an employee may not act as attorney or agent in relation to any particular matter involving a specific party or parties in which that employee has at any time participated in the course of his or her Government service, or, if the employee has served at least 61

days, any matter that is pending in the department in which he or she is serving. A special Government employee is not otherwise barred from acting as an attorney in court proceedings or in proceedings before other agencies.

Section 208 of title 18 requires an officer or employee (including a special Government employee) to disqualify himself or herself from participating in decisions with regard to particular

matters where he or she, a spouse, minor child. partner, organization in which the employee is

serving as officer, director, trustee, partner, or employee, or any person or organization with whom

he or she is negotiating or has any arrangement concerning prospective employment, has a financial

interest. A waiver is available under certain conditions, § 208(b), and, as with the applicability

412 SENATE ETHICS MANUAL

of all of the conflict of interest sections discussed in this opinion, a careful examination of the

particular facts would have to be made in each individual case.

POST-EMPLOYMENT RESTRICTIONS

Section 207 of title 18 was amended by the Ethics in Government Act of 1978 to require

that regular employees and special Government employees be permanently barred from acting as

attorney or agent or otherwise representing any person other than the United States in making any

communication, with intent to influence, or in making any informal or formal appearance before

any department, agency, commission, or court in relation to any particular matter in which the

United States or the District of Columbia is a party or has a direct and substantial interest and

in which the employee participated personally and substantially, Pub. L. No. 95–521, Title V, T

501(a), as amended by Pub. L. No. 96–28 (92 Stat. 1864, 93 Stat. 76).(6) The employee will also

be prohibited for 2 years from acting as agent or attorney in similar circumstances with regard

to matters under his or her official responsibility, but in all likelihood the realm of official responsibility of the employees you would have would be no broader than the matters in which they participated personally and substantially,

LEON ULMAN

Deputy Assistant Attorney General

Office of Legal Counsel

——————————————————

Endnotes

1. We understand from your staff that you are no longer interested in employing such persons

to train your permanent staff or to assist in the development of a computer-based information retrieval system.

2. Funds appropriated for the hiring of attorneys and investigators to perform the tasks you

intend to have the detailed employees perform may be used only for the purposes for which they

are appropriated, 31 U.S.C.628, but they are available to pay either employees of your own or

those detailed from another agency.

3. We leave aside for the moment the question of whether you can pay each private sector

employee a nominal sum, not to exceed $100, for all services rendered by the participant during

the 6 months of the program.

4. Section 203 applies as well to receipt of compensation by an employee for services rendered by another, such as a law partner.

5. The restrictions of §209 do not prohibit continued participation by employees in bona fide

pension, retirement, group life, health or accident insurance, profit-sharing, stock bonus, or other

employee welfare or benefit plans maintained by a private employer. See §209(b).

6. We assume that the employees you are considering hiring will not be among those designated for more stringent coverage under §207(d).

18 U.S.C. § 203. Compensation to Members of Congress, officers, and others in matters affecting the Government

(a) Whoever, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly—

(1) demands, seeks, receives, accepts, or agrees to receive or accept any compensation for any representational services,

as agent or attorney or otherwise, rendered or to be rendered either personally or by another—

(A) at a time when such person is a Member of Congress, Member of Congress Elect, Delegate, Delegate Elect, Resident

Commissioner, or Resident Commissioner Elect; or

(B) at a time when such person is an officer or employee or Federal judge of the United States in the executive,

legislative, or judicial branch of the Government, or in any agency of the United States, in relation to any proceeding,

application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest or other

particular matter in which the United States is a party or has a direct and substantial interest, before any department,

agency, court, court- martial, officer, or any civil, military, or naval commission; or

(2) knowingly gives, promises, or offers any compensation for any such representational services rendered or to be

rendered at a time when the person to whom the compensation is given, promised, or offered, is or was such a Member,

Member Elect, Delegate, Delegate Elect, Commissioner, Commissioner Elect, Federal judge, officer, or employee;

shall be subject to the penalties set forth in section 216 of this title.

APPENDIX D 413

(b) Whoever, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly—

(1) demands, seeks, receives, accepts, or agrees to receive or accept any compensation for any representational services,

as agent or attorney or otherwise, rendered or to be rendered either personally or by another, at a time when such person

is an officer or employee of the District of Columbia, in relation to any proceeding, application, request for a ruling

or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which the

District of Columbia is a party or has a direct and substantial interest, before any department, agency, court, officer,

or commission; or

(2) knowingly gives, promises, or offers any compensation for any such representational services rendered or to be

rendered at a time when the person to whom the compensation is given, promised, or offered, is or was an officer

or employee of the District of Columbia;shall be subject to the penalties set forth in section 216 of this title.

(c) A special Government employee shall be subject to subsections (a) and (b) only in relation to a particular matter

involving a specific party or parties—

(1) in which such employee has at any time participated personally and substantially as a Government employee or

as a special Government employee through decision, approval, disapproval, recommendation, the rendering of advice,

investigation or otherwise; or

(2) which is pending in the department or agency of the Government in which such employee is serving except that

paragraph (2) of this subsection shall not apply in the case of a special Government employee who has served in such

department or agency no more than sixty days during the immediately preceding period of three hundred and sixtyfive consecutive days.

(d) Nothing in this section prevents an officer or employee, including a special Government employee, from acting,

with or without compensation, as agent or attorney for or otherwise representing his parents, spouse, child, or any person

for whom, or for any estate for which, he is serving as guardian, executor, administrator, trustee, or other personal

fiduciary except—

(1) in those matters in which he has participated personally and substantially as a Government employee or as a special

Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation,

or otherwise; or

(2) in those matters that are the subject of his official responsibility, subject to approval by the Government official

responsible for appointment to his position.

(e) Nothing in this section prevents a special Government employee from acting as agent or attorney for another person

in the performance of work under a grant by, or a contract with or for the benefit of, the United States if the head

of the department or agency concerned with the grant or contract certifies in writing that the national interest so requires

and publishes such certification in the Federal Register.

(f) Nothing in this section prevents an individual from giving testimony under oath or from making statements required

to be made under penalty of perjury.

18 U.S.C. § 204. Practice in United States Claims Court or the United States Court of Appeals for the Federal

Circuit by Members of Congress

Whoever, being a Member of Congress or Member of Congress Elect, practices in the United States Claims Court or

the United States Court of Appeals for the Federal Circuit shall be subject to the penalties set forth in section 216

of this title.

18 U.S.C. § 205. Activities of officers and employees in claims against and other matters affecting the Government

(a) Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the

Government or in any agency of the United States, other than in the proper discharge of his official duties—

(1) acts as agent or attorney for prosecuting any claim against the United States, or receives any gratuity, or any share

of or interest in any such claim, in consideration of assistance in the prosecution of such claim; or

(2) acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or civil, military,

or naval commission in connection with any covered matter in which the United States is a party or has a direct and

substantial interest;

shall be subject to the penalties set forth in section 216 of this title.

(b) Whoever, being an officer or employee of the District of Columbia or an officer or employee of the Office of the

United States Attorney for the District of Columbia, otherwise than in the proper discharge of official duties—

(1) acts as agent or attorney for prosecuting any claim against the District of Columbia, or receives any gratuity, or

any share of or interest in any such claim in consideration of assistance in the prosecution of such claim; or

(2) acts as agent or attorney for anyone before any department, agency, court, officer, or commission in connection

with any covered matter in which the District of Columbia is a party or has a direct and substantial interest;

shall be subject to the penalties set forth in section 216 of this title.

(c) A special Government employee shall be subject to subsections (a) and (b) only in relation to a covered matter

involving a specific party or parties—

(1) in which he has at any time participated personally and substantially as a Government employee or special

Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation,

or otherwise; or

414 SENATE ETHICS MANUAL

(2) which is pending in the department or agency of the Government in which he is serving.

Paragraph (2) shall not apply in the case of a special Government employee who has served in such department or

agency no more than sixty days during the immediately preceding period of three hundred and sixty-five consecutive

days.(d)(1)Nothing in subsection (a) or (b) prevents an officer or employee, if not inconsistent with the faithful

performance of that officer’s or employee’s duties, from acting without compensation as agent or attorney for, or

otherwise representing

‘‘(A) any person who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings; or

‘‘(B) except as provided in paragraph (2), any cooperative, voluntary, professional, recreational, or similar organization or group not established or operated for profit, if a majority of the organization’s or groups’s members are current officers or employees of the

United States or of the District of Columbia, or their spouses or dependent children.

‘‘(2) Paragraph (1)(B)does not apply with respect to a covered matter that—

‘‘(A) is a claim under subsection (a)(1) or (b)(1);

‘‘(B) is a judicial or administrative proceeding where the organization or group is a party;

or

‘‘(C) involves a grant, contract, or other agreement (including a request for any such

grant, contract, or agreement) providing for the disbursement of Federal funds to the organization or group.’’

(e) Nothing in subsection (a) or (b) prevents an officer or employee, including a special Government employee, from

acting, with or without compensation, as agent or attorney for, or otherwise representing, his parents, spouse, child,

or any person for whom, or for any estate for which, he is serving as guardian, executor, administrator, trustee, or other

personal fiduciary except—

(1) in those matters in which he has participated personally and substantially as a Government employee or special

Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation,

or otherwise, or

(2) in those matters which are the subject of his official responsibility, subject to approval by the Government official

responsible for appointment to his position.

(f) Nothing in subsection (a) or (b) prevents a special Government employee from acting as agent or attorney for another

person in the performance of work under a grant by, or a contract with or for the benefit of, the United States if the

head of the department or agency concerned with the grant or contract certifies in writing that the national interest so

requires and publishes such certification in the Federal Register.

(g) Nothing in this section prevents an officer or employee from giving testimony under oath or from making statements

required to be made under penalty for perjury or contempt.

(h) For the purpose of this section, the term ‘‘covered matter’’ means any judicial or other proceeding, application,

request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other

particular matter.

(i)Nothing in this section prevents an employee from acting pursuant to—

(1) chapter 71 of title 5;

(2) section 1004 or chapter 12 of title 39;

(3) section 30 of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831b);

(4) chapter 10 of title I of the Foreign Service Act of 1980 (22 U.S.C, 4104 et seq.);

or

(5) any provision of any other Federal or District of Columbia law that authorizes labormanagement relations between an agency or instrumentality of the United States or the

District of Columbia and any labor organization that represents its employees.’’.

(End section 205).

Department of Justice Representation of Federal Employees in Fair Employment Suits

Government attorneys are not prohibited by 18 U.S.C.§ 205 from representing employees in judicial personnel

administration proceedings, as long as the representation is uncompensated and is not inconsistent with the attorney’s

performance of his or her official duties. However, Department of Justice regulations prohibit department attorneys from

representing federal employees in fair employment suits in federal court, explicitly limiting such representation to

administrative complaint procedures.

July 23, 1982

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY

APPENDIX D 415

GENERAL, CIVIL RIGHTS DIVISION

This responds to your request for the views of this Office regarding the representation by Department of Justice attorneys of federal employees with Equal Employment Opportunity (EEO)

complaints. Specifically, you asked whether a Department of Justice attorney could represent a federal employee in a fair employment suit against a federal agency, and if so, whether such representation depended upon the division or section in which the attorney works, or whether the employee’s claim was against the Department of Justice.

The statute which addresses the ‘‘conflict of interest’’ issues raised by your request is 18

U.S.C. § 205.(fn. 1) This section prohibits ‘‘officer[s] or employee[s] of the United States’’ from

‘‘act[ing] as agent or attorney for prosecuting any claim against the United States, or receiv[ing]

any gratuity, [therefor]’’ or from ‘‘act[ing] as agent or attorney for anyone before any department,

agency, [or] court . . . in connection with any proceeding, . . . in which the United States is a

party or has a direct and substantial interest.’’ Excepted from the prohibitions contained in this

section are ‘‘officer[s] or employee[s] [who,] if not inconsistent with the faithful performance of

[their] duties, . . . act [ ] without compensation as agent or attorney for any person who is the

subject of disciplinary, loyalty, or other personnel administration proceedings in connection with

those proceedings.’’

With respect to Department of Justice employees, the Department has promulgated regulations

with similar language in 28 C.F.R. § 45.735–9(c)(1)(fn.2), and § 45.735–6(c) (1981)(fn. 3). In addition, in 1973 the Department issued DOJ Order 1713.5 establishing its policy regarding volunteer

representation of employees of the Department who are involved in EEO complaint procedures.(fn.

4) This order, which is embraced by regulations most recently revised by the Department in 1980,

prohibits the representation of EEO complainants in federal court by Department attorneys, explicitly limiting such representation to administrative complaint procedures.

As you noted in your opinion request, Attorney General Edward H. Levi issued two memoranda on November 20, 1975, encouraging representation by all government attorneys of federal

employees with EEO complaints ‘‘during all phases of the proceedings ,’’ so long as the representation would not be inconsistent with the employee’s faithful performance of his or her duties and

the employee is not compensated for such work. Levi, Memorandum to All Employees re: Representing Equal Employment Opportunity Complainants at 1 (November 20, 1975); Levi, Memorandum to Heads of Departments and Agencies re: Representation by Federal Employees of EEO

Complainants (November 20, 1975). The memorandum directed to the heads of agencies stated

that, while the Department of Justice found no distinction under § 205 between administrative and

judicial proceedings, the determination whether policy considerations warranted a distinction between administrative and judicial proceedings was the responsibility of each agency.

The memorandum directed to Department of Justice employees did not explicitly prohibit representation by federal employees of EEO complainants in judicial proceedings; however, the

memorandum does appear to have contemplated such a limitation, (fn.5)particularly when considered in the context of the 1973 DOJ Order 1713.5, which established the ‘‘EEO Volunteer Representatives Program’’ for the Department, and current Department regulations citing that

order.(fn.6)

Thus, in answer to your specific question, Department of Justice attorneys are presently prohibited from representing federal EEO complainants in federal courts-without regard to the division

in which the attorney is employed, or whether the complaint has been filed against the Department

of Justice. We would add that this prohibition is based on DOJ Order 1713.5 and current Department regulations, not on our interpretation of the conflict of interest provisions contained in § 205.

Both prior to and since Attorney General Levi’s November 20, 1975, memorandum to agency

heads, this Office has taken the position that § 205 excepts from its general conflicts provision

the representation of federal employees in personnel administration proceedings in court as well

as before agencies, so long as the representation does not, in the judgment of an appropriate official, conflict with the attorney’s official duties.(fn.7)

LARRY L. SIMMS

Deputy Assistant Attorney General

Office of Legal Counsel

————————————————

Endnotes

1. 18 U.S.C. §205 provides in pertinent part:

416 SENATE ETHICS MANUAL

Whoever, being an officer or employee of the United States in the executive, legislative,

or judicial branch of the Government or in any agency of the United States, including the

District of Columbia, otherwise than in the proper discharge of his official duties—

(1) acts as agent or attorney for prosecuting any claim against the United States, or

receives any gratuity, or any share of or interest in any such claim in consideration of assistance in the prosecution of such claim, or

(2) acts as agent or attorney for anyone before any department, agency, court, courtmartial, officer, or any civil, military, or naval commission in connection with any proceeding, application, request for a ruling or other determination, contract, claim, controversy,

charge, accusation, arrest, or other particular matter in which the United States is a party or

has a direct and substantial interest—

Shall be fined not more than $10,000 or imprisoned for not more than two years, or

both.

****

Nothing herein prevents an officer or employee, if not inconsistent with the faithful performance of his duties, from acting without compensation as agent or attorney for any person

who is the subject of disciplinary, loyalty, or other personnel administration proceedings in

connection with those proceedings.

2. Section 45.735–9(c)(1) provides in pertinent part:

Representation of Federal Employees in Equal Employment Opportunity (EEO) complaint procedures may be provided in accordance with §45.735–6(c) of this title and the Department’s established EEO policy (see DOJ order 1713.5) rather than this subsection.

3. Section 45.735–6(c) provides:

(c) Nothing in this part shall be deemed to prohibit an employee, if it is not otherwise

inconsistent with the faithful performance of his duties, from acting without compensation as

agent or attorney for any person in a disciplinary, loyalty, or other Federal personnel administration proceeding involving such person.

4. See Department of Justice Order No. 1713.5, Volunteer Representatives for Employees Involved in EEO Complaint Procedures (Oct. 30, 1973).

5. In discussing the relevant conflict of interest provision, the memorandum states that a federal employee ‘‘representing a person before a government agency in a personnel proceeding, such

as the EEO complaint process,’’ is generally exempt from the conflict of interest laws, so long

as the representation is uncompensated and is not inconsistent with the attorney’s faithful performance of his or her duties. Levi, Memorandum to All Employees, supra at 2 (emphasis added).

6. But cf. Rex E. Lee, Assistant Attorney General, Civil Division, Memorandum to All Section

and Unit Chiefs re: Representation by Federal Employees of EEO Complainants (Mar. 26, 1976)

(concluding that the Levi memorandum to Department employees does authorize representation in

federal courts by Department of Justice attorneys, but advising Civil Division attorneys that they

are not authorized to participate in such representation because of the conflicts that might arise

‘‘since the representation of the government in these cases is a traditional function of the Civil

Division once the case proceeds to litigation.’’ Id. at 1.).

7. See Roger X. Cramton, Assistant Attorney General, Memorandum for the Deputy Attorney

General re: Representation by Department of Justice Attorneys of Federal Workers Claiming Discrimination in Employment (Oct. 31, 1972); Leon Ulman, Acting Assistant Attorney General

Memorandum for the Assistant Attorney General, Criminal Division re: Charles E. Langyher, III,

et al. v. United States—Applicability of 18 U.S.C. §205 to Participation of Counsel (May 10,

1972); Frank Wozencraft, Assistant Attorney General, Letter to the General Counsel, United States

Civil Service Commission (May 8, 1967); Norbert X. Schlei, Assistant Attorney General, Letter

to the General Counsel. Post Office Department (Feb. 26, 1965).

18 U.S.C. § 206. Exemption of retired officers of the uniformed services

Sections 203 and 205 of this title shall not apply to a retired officer of the uniformed services of the United States

while not on active duty and not otherwise an officer or employee of the United States, or to any person specially

excepted by Act of Congress.

18 U.S.C. § 207. Restrictions on former officers, employees, and elected officials of the executive and legislative

branches

APPENDIX D 417

(a) Restrictions on all officers and employees of the executive branch and certain other agencies.—

(1) Permanent restrictions on representation on particular matters.—Any person who is an officer or employee (including

any special Government employee) of the executive branch of the United States (including any independent agency of

the United States), or of the District of Columbia, and who, after the termination of his or her service or employment

with the United States or the District of Columbia, knowingly makes, with the intent to influence, any communication

to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States

or the District of Columbia, on behalf of any other person (except the United States or the District of Columbia) in

connection with a particular matter—

(A) in which the United States or the District of Columbia is a party or has a direct and substantial interest,

(B) in which the person participated personally and substantially as such officer or employee, and

(C) which involved a specific party or specific parties at the time of such participation,

shall be punished as provided in section 216 of this title.

(2) Two-year restrictions concerning particular matters under official responsibility.—Any person subject to the

restrictions contained in paragraph (1) who, within 2 years after the termination of his or her service or employment

with the United States or the District of Columbia, knowingly makes, with the intent to influence, any communication

to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States

or the District of Columbia, on behalf of any other person (except the United States or the District of Columbia), in

connection with a particular matter—

(A) in which the United States or the District of Columbia is a party or has a direct and substantial interest,

(B) which such person knows or reasonably should know was actually pending under his or her official responsibility

as such officer or employee within a period of 1 year before the termination of his or her service or employment with

the United States or the District of Columbia, and

(C) which involved a specific party or specific parties at the time it was so pending,

shall be punished as provided in section 216 of this title.

(3) Clarification of restrictions.—The restrictions contained in paragraphs (1) and (2) shall apply—

(A) in the case of an officer or employee of the executive branch of the United States (including any independent

agency), only with respect to communications to or appearances before any officer or employee of any department,

agency, court, or court-martial of the United States on behalf of any other person (except the United States), and only

with respect to a matter in which the United States is a party or has a direct and substantial interest; and

(B) in the case of an officer or employee of the District of Columbia, only with respect to communications to or

appearances before any officer or employee of any department, agency, or court of the District of Columbia on behalf

of any other person (except the District of Columbia), and only with respect to a matter in which the District of

Columbia is a party or has a direct and substantial interest.

(b) One-year restrictions on aiding or advising.—

(1) In general.—Any person who is a former officer or employee of the executive branch of the United States (including

any independent agency) and is subject to the restrictions contained in subsection (a)(1), or any person who is a former

officer or employee of the legislative branch or a former Member of Congress, who personally and substantially

participated in any ongoing trade or treaty negotiation on behalf of the United States within the 1-year period preceding

the date on which his or her service or employment with the United States terminated, and who had access to

information concerning such trade or treaty negotiation which is exempt from disclosure under section 552 of title 5,

which is so designated by the appropriate department or agency, and which the person knew or should have known

was so designated, shall not, on the basis of that information, knowingly represent, aid, or advise any other person

(except the United States) concerning such ongoing trade or treaty negotiation for a period of 1 year after his or her

service or employment with the United States terminates. Any person who violates this subsection shall be punished

as provided in section 216 of this title.

(2) Definition.—For purposes of this paragraph—

(A) the term ‘‘trade negotiation’’ means negotiations which the President determines to undertake to enter into a trade

agreement pursuant to section 1102 of the Omnibus Trade and Competitiveness Act of 1988, and does not include any

action taken before that determination is made; and

(B) the term ‘‘treaty’’ means an international agreement made by the President that requires the advice and consent

of the Senate.

(c) One-year restrictions on certain senior personnel of the executive branch and independent agencies.—

(1) Restrictions.—In addition to the restrictions set forth in subsections (a) and (b), any person who is an officer or

employee (including any special Government employee) of the executive branch of the United States (including an

independent agency), who is referred to in paragraph (2), and who, within 1 year after the termination of his or her

service or employment as such officer or employee, knowingly makes, with the intent to influence, any communication

to or appearance before any officer or employee of the department or agency in which such person served within 1

year before such termination, on behalf of any other person (except the United States), in connection with any matter

on which such person seeks official action by any officer or employee of such department or agency, shall be punished

as provided in section 216 of this title.

(2) Persons to whom restrictions apply.—(A) Paragraph (1) shall apply to a person (other than a person subject to the

restrictions of subsection (d))—

(i) employed at a rate of pay specified in or fixed according to subchapter II of chapter 53 of title 5,

(ii) employed in a position which is not referred to in clause (i) and for which the basic rate of pay, exclusive of any

418 SENATE ETHICS MANUAL

locality-based pay adjustment under section 5302 of title 5 (or any comparable adjustment pursuant to interim authority

of the President), is equal to or greater than the rate of basic pay payable for level V of the Executive Schedule,

(iii) appointed by the President to a position under section 105(a)(2)(B) of title 3 or by the Vice President to a position

under section 106(a)(1)(B) of title 3, or

(iv) employed in a position which is held by an active duty commissioned officer of the uniformed services who is

serving in a grade or rank for which the pay grade (as specified in section 201 of title 37) is pay grade O–7 or above.

(B) Paragraph (1) shall not apply to a special Government employee who serves less than 60 days in the 1-year period

before his or her service or employment as such employee terminates.

(C) At the request of a department or agency, the Director of the Office of Government Ethics may waive the restrictions

contained in paragraph (1) with respect to any position, or category of positions, referred to in clause (ii) or (iv) of

subparagraph (A), in such department or agency if the Director determines that—

(i) the imposition of the restrictions with respect to such position or positions would create an undue hardship on the

department or agency in obtaining qualified personnel to fill such position or positions, and

(ii) granting the waiver would not create the potential for use of undue influence or unfair advantage.

(d) Restrictions on very senior personnel of the executive branch and independent agencies.—

(1) Restrictions.—In addition to the restrictions set forth in subsections (a) and (b), any person who—

(A) serves in the position of Vice President of the United States,

(B) is employed in a position in the executive branch of the United States (including any independent agency) at a

rate of pay payable for level I of the Executive Schedule or employed in a position in the Executive Office of the

President at a rate of pay payable for level II of the Executive Schedule, or

(C) is appointed by the President to a position under section 105(a)(2)(A) of title 3 or by the Vice President to a position

under section 106(a)(1)(A) of title 3,

and who, within 1 year after the termination of that person’s service in that position, knowingly makes, with the intent

to influence, any communication to or appearance before any person described in paragraph (2), on behalf of any other

person (except the United States), in connection with any matter on which such person seeks official action by any

officer or employee of the executive branch of the United States, shall be punished as provided in section 216 of this

title.

(2) Persons who may not be contacted.—The persons referred to in paragraph (1) with respect to appearances or

communications by a person in a position described in subparagraph (A), (B), or (C) of paragraph (1) are—

(A) any officer or employee of any department or agency in which such person served in such position within a period

of 1 year before such person’s service or employment with the United States Government terminated, and

(B) any person appointed to a position in the executive branch which is listed in sections 5312, 5313, 5314, 5315,

or 5316 of title 5.

(e) Restrictions on Members of Congress and officers and employees of the legislative branch.—

(1) Members of Congress and elected officers.—(A) Any person who is a Member of Congress or an elected officer

of either House of Congress and who, within 1 year after that person leaves office, knowingly makes, with the intent

to influence, any communication to or appearance before any of the persons described in subparagraph (B) or

(C), on behalf of any other person (except the United States) in connection with any matter on which such former

Member of Congress or elected officer seeks action by a Member, officer, or employee of either House of Congress,

in his or her official capacity, shall be punished as provided in section 216 of this title.

(B) The persons referred to in subparagraph (A) with respect to appearances or communications by a former Member

of Congress are any Member, officer, or employee of either House of Congress, and any employee of any other

legislative office of the Congress.

(C) The persons referred to in subparagraph (A) with respect to appearances or communications by a former elected

officer are any Member, officer, or employee of the House of Congress in which the elected officer served.

(2) Personal staff.—(A) Any person who is an employee of a Senator or an employee of a Member of the House of

Representatives and who, within 1 year after the termination of that employment, knowingly makes, with the intent

to influence, any communication to or appearance before any of the persons described in subparagraph (B), on behalf

of any other person (except the United States) in connection with any matter on which such former employee seeks

action by a Member, officer, or employee of either House of Congress, in his or her official capacity, shall be punished

as provided in section 216 of this title.

(B) The persons referred to in subparagraph (A) with respect to appearances or communications by a person who is

a former employee are the following:

(i) the Senator or Member of the House of Representatives for whom that person was an employee; and

(ii) any employee of that Senator or Member of the House of Representatives.

(3) Committee staff.—Any person who is an employee of a committee of Congress and who, within 1 year after the

termination of that person’s employment on such committee, knowingly makes, with the intent to influence, any

communication to or appearance before any person who is a Member or an employee of that committee or who was

a Member of the committee in the year immediately prior to the termination of such person’s employment by the

committee, on behalf of any other person (except the United States) in connection with any matter on which such former

employee seeks action by a Member, officer, or employee of either House of Congress, in his or her official capacity,

shall be punished as provided in section 216 of this title.

(4) Leadership staff.—(A) Any person who is an employee on the leadership staff of the House of Representatives or

an employee on the leadership staff of the Senate and who, within 1 year after the termination of that person’s

APPENDIX D 419

employment on such staff, knowingly makes, with the intent to influence, any communication to or appearance before

any of the persons described in subparagraph (B), on behalf of any other person (except the United States) in connection

with any matter on which such former employee seeks action by a Member, officer, or employee of either House of

Congress, in his or her official capacity, shall be punished as provided in section 216 of this title.

(B) The persons referred to in subparagraph (A) with respect to appearances or communications by a former employee

are the following:

(i) in the case of a former employee on the leadership staff of the House of Representatives, those persons are any

Member of the leadership of the House of Representatives and any employee on the leadership staff of the House of

Representatives; and

(ii) in the case of a former employee on the leadership staff of the Senate, those persons are any Member of the

leadership of the Senate and any employee on the leadership staff of the Senate.

(5) Other legislative offices.—(A) Any person who is an employee of any other legislative office of the Congress and

who, within 1 year after the termination of that persons’s employment in such office, knowingly makes, with the intent

to influence, any communication to or appearance before any of the persons described in subparagraph (B), on behalf

of any other person (except the United States) in connection with any matter on which such former employee seeks

action by any officer or employee of such office, in his or her official capacity, shall be punished as provided in section

216 of this title.

(B) The persons referred to in subparagraph (A) with respect to appearances or communications by a former employee

are the employees and officers of the former legislative office of the Congress of the former employee.

(6) Limitation on restrictions.—(A) The restrictions contained in paragraphs (2), (3), and (4) apply only to acts by a

former employee who, for at least 60 days, in the aggregate, during the 1-year period before that former employee’s

service as such employee terminated, was paid a rate of basic pay equal to or greater than an amount which is 75

percent of the basic rate of pay payable for a Member of the House of Congress in which such employee was employed.

(B) The restrictions contained in paragraph (5) apply only to acts by a former employee who, for at least 60 days,

in the aggregate, during the 1-year period before that former employee’s service as such employee terminated, was

employed in a position for which the rate of basic pay, exclusive of any locality-based pay adjustment under section

5302 of title 5 (or any comparable adjustment pursuant to interim authority of the President), is equal to or greater

than the basic rate of pay payable for level V of the Executive Schedule.

(7) Definitions.—As used in this subsection—

(A) the term ‘‘committee of Congress’’ includes standing committees, joint committees, and select committees;

(B) a person is an employee of a House of Congress if that person is an employee of the Senate or an employee of

the House of Representatives;

(C) the term ‘‘employee of the House of Representatives’’ means an employee of a Member of the House of

Representatives, an employee of a committee of the House of Representatives, an employee of a joint committee of

the Congress whose pay is disbursed by the Clerk of the House of Representatives, and an employee on the leadership

staff of the House of Representatives;

(D) the term ‘‘employee of the Senate’’ means an employee of a Senator, an employee of a committee of the Senate,

an employee of a joint committee of the Congress whose pay is disbursed by the Secretary of the Senate, and an

employee on the leadership staff of the Senate;

(E) a person is an employee of a Member of the House of Representatives if that person is an employee of a Member

of the House of Representatives under the clerk hire allowance;

(F) a person is an employee of a Senator if that person is an employee in a position in the office of a Senator;

(G) the term ‘‘employee of any other legislative office of the Congress’’ means an officer or employee of the Architect

of the Capitol, the United States Botanic Garden, the General Accounting Office, the Government Printing Office, the

Library of Congress, the Office of Technology Assessment, the Congressional Budget Office, the Copyright Royalty

Tribunal, the United States Capitol Police, and any other agency, entity, or office in the legislative branch not covered

by paragraph (1), (2), (3), or (4) of this subsection;

(H) the term ‘‘employee on the leadership staff of the House of Representatives’’ means an employee of the office

of a Member of the leadership of the House of Representatives described in subparagraph (L), and any elected minority

employee of the House of Representatives;

(I) the term ‘‘employee on the leadership staff of the Senate’’ means an employee of the office of a Member of the

leadership of the Senate described in subparagraph (M);

(J) the term ‘‘Member of Congress’’ means a Senator or a Member of the House of Representatives;

(K) the term ‘‘Member of the House of Representatives’’ means a Representative in, or a Delegate or Resident

Commissioner to, the Congress;

(L) the term ‘‘Member of the leadership of the House of Representatives’’ means the Speaker, majority leader, minority

leader, majority whip, minority whip, chief deputy majority whip, chief deputy minority whip, chairman of the

Democratic Steering Committee, chairman and vice chairman of the Democratic Caucus, chairman, vice chairman, and

secretary of the Republican Conference, chairman of the Republican Research Committee, and chairman of the

Republican Policy Committee, of the House of Representatives (or any similar position created on or after the effective

date set forth in section 102(a) of the Ethics Reform Act of 1989);

(M) the term ‘‘Member of the leadership of the Senate’’ means the Vice President, and the President pro tempore,

Deputy President pro tempore, majority leader, minority leader, majority whip, minority whip, chairman and secretary

420 SENATE ETHICS MANUAL

of the Conference of the Majority, chairman and secretary of the Conference of the Minority, chairman and co-chairman

of the Majority Policy Committee, and chairman of the Minority Policy Committee, of the Senate (or any similar

position created on or after the effective date set forth in section 102(a) of the Ethics Reform Act of 1989).

(f) Restrictions relating to foreign entities.—

(1) Restrictions.—Any person who is subject to the restrictions contained in subsection (c), (d), or (e) and who

knowingly, within 1 year after leaving the position, office, or employment referred to in such subsection—

(A) represents a foreign entity before any officer or employee of any department or agency of the United States with

the intent to influence a decision of such officer or employee in carrying out his or her official duties, or

(B) aids or advises a foreign entity with the intent to influence a decision of any officer or employee of any department

or agency of the United States, in carrying out his or her official duties,

shall be punished as provided in section 216 of this title.

(2) Special rule for Trade Representative.—With respect to a person who is the United States Trade Representative or

Deputy United States Trade Representative, the restrictions described in paragraph

(1) shall apply to representing, aiding, or advising foreign entities at any time after the termination of that person’s

service as the United States Trade Representative.

(3) Definition.—For purposes of this subsection, the term ‘‘foreign entity’’ means the government of a foreign country

as defined in section 1(e) of the Foreign Agents Registration Act of 1938, as amended, or a foreign political party

as defined in section 1(f) of that Act.

(g) Special rules for detailees.—For purposes of this section, a person who is detailed from one department, agency,

or other entity to another department, agency, or other entity shall, during the period such person is detailed, be deemed

to be an officer or employee of both departments, agencies, or such entities.

(h) Designations of separate statutory agencies and bureaus.—

(1) Designations.—For purposes of subsection (c) and except as provided in paragraph (2), whenever the Director of

the Office of Government Ethics determines that an agency or bureau within a department or agency in the executive

branch exercises functions which are distinct and separate from the remaining functions of the department or agency

and that there exists no potential for use of undue influence or unfair advantage based on past Government service,

the Director shall by rule designate such agency or bureau as a separate department or agency. On an annual basis

the Director of the Office of Government Ethics shall review the designations and determinations made under this

subparagraph and, in consultation with the department or agency concerned, make such additions and deletions as are

necessary. Departments and agencies shall cooperate to the fullest extent with the Director of the Office of Government

Ethics in the exercise of his or her responsibilities under this paragraph.

(2) Inapplicability of designations.—No agency or bureau within the Executive Office of the President may be designated

under paragraph (1) as a separate department or agency. No designation under paragraph (1) shall apply to persons

referred to in subsection

(c)(2)(A)(i) or (iii).

(i) Definitions.—For purposes of this section—

(1) the term ‘‘officer or employee’’, when used to describe the person to whom a communication is made or before

whom an appearance is made, with the intent to influence, shall include—

(A) in subsections (a), (c), and (d), the President and the Vice President; and

(B) in subsection (f), the President, the Vice President, and Members of Congress;

(2) the term ‘‘participated’’ means an action taken as an officer or employee through decision, approval, disapproval,

recommendation, the rendering of advice, investigation, or other such action; and

(3) the term ‘‘particular matter’’ includes any investigation, application, request for a ruling or determination,

rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding.

(j) Exceptions.—

(1) Official government duties.—The restrictions contained in this section shall not apply to acts done in carrying out

official duties on behalf of the United States or the District of Columbia or as an elected official of a State or local

government.

(2) State and local governments and institutions, hospitals, and organizations.—The restrictions contained in subsections

(c), (d), and (e) shall not apply to acts done in carrying out official duties as an employee of—

(A) an agency or instrumentality of a State or local government if the appearance, communication, or representation

is on behalf of such government, or

(B) an accredited, degree-granting institution of higher education, as defined in section 1201(a) of the Higher Education

Act of 1965, or a hospital or medical research organization, exempted and defined under section 501(c)(3) of the Internal

Revenue Code of 1986, if the appearance, communication, or representation is on behalf of such institution, hospital,

or organization.

(3) International organizations.—The restrictions contained in this section shall not apply to an appearance or

communication on behalf of, or advice or aid to, an international organization in which the United States participates,

if the Secretary of State certifies in advance that such activity is in the interests of the United States.

(4) Special knowledge.—The restrictions contained in subsections (c), (d), and (e) shall not prevent an individual from

making or providing a statement, which is based on the individual’s own special knowledge in the particular area that

is the subject of the statement, if no compensation is thereby received.

(5) Exception for scientific or technological information.—The restrictions contained in subsections (a), (c), and (d) shall

not apply with respect to the making of communications solely for the purpose of furnishing scientific or technological

APPENDIX D 421

information, if such communications are made under procedures acceptable to the department or agency concerned or

if the head of the department or agency concerned with the particular matter, in consultation with the Director of the

Office of Government Ethics, makes a certification, published in the Federal Register, that the former officer or

employee has outstanding qualifications in a scientific, technological, or other technical discipline, and is acting with

respect to a particular matter which requires such qualifications, and that the national interest would be served by the

participation of the former officer or employee. For purposes of this paragraph, the term ‘‘officer or employee’’ includes

the Vice President.

(6) Exception for testimony.—Nothing in this section shall prevent an individual from giving testimony under oath, or

from making statements required to be made under penalty of perjury. Notwithstanding the preceding sentence—

(A) a former officer or employee of the executive branch of the United States (including any independent agency) who

is subject to the restrictions contained in subsection (a)(1) with respect to a particular matter may not, except pursuant

to court order, serve as an expert witness for any other person (except the United States) in that matter; and

(B) a former officer or employee of the District of Columbia who is subject to the restrictions contained in subsection

(a)(1) with respect to a particular matter may not, except pursuant to court order, serve as an expert witness for any

other person (except the District of Columbia) in that matter.

(7) Political parties and campaign committees.—

(A) Except as provided in subparagraph (B), the restrictions contained in subsections (c), (d), and (e) shall not apply

to a communication or appearance made solely on behalf of a candidate in his or her capacity as a candidate, an

authorized committee, a national committee, a national Federal campaign committee, a State committee, or a political

party.

(B) Subparagraph (A) shall not apply to-

(i) any communication to, or appearance before, the Federal Election Commission by a former officer or employee of

the Federal Election Commission; or

(ii) a communication or appearance made by a person who is subject to the restrictions contained in subsections (c),

(d), or (e) if, at the time of the communication or appearance, the person is employed by a person or entity other than-

(I) a candidate, an authorized committee, a national committee, a national Federal campaign committee, a State

committee, or a political party; or

(II) a person or entity who represents, aids, or advises only persons or entities described in subclause (I). (C) For

purposes of this paragraph-

(i) the term ‘‘candidate’’ means any person who seeks nomination for election, or election, to Federal or State office

or who has authorized others to explore on his or her behalf the possibility of seeking nomination for election, or

election, to Federal or State office;

(ii) the term ‘‘authorized committee’’ means any political committee designated in writing by a candidate as authorized

to receive contributions or make expenditures to promote the nomination for election, or the election, of such candidate,

or to explore the possibility of seeking nomination for election, or the election, of such candidate, except that a political

committee that receives contributions or makes expenditures to promote more than 1 candidate may not be designated

as an authorized committee for purposes of subparagraph (A);

(iii) the term ‘‘national committee’’ means the organization which, by virtue of the bylaws of a political party, is

responsible for the day-to-day operation of such political party at the national level;

(iv) the term ‘‘national Federal campaign committee’’ means an organization that, by virtue of the bylaws of a political

party, is established primarily for the purpose of providing assistance, at the national level, to candidates nominated

by that party for election to the office of Senator or Representative in, or Delegate or Resident Commissioner to, the

Congress;

(v) the term ‘‘State committee’’ means the organization which, by virtue of the bylaws of a political party, is responsible

for the day-to-day operation of such political party at the State level;

(vi) the term ‘‘political party’’ means an association, committee, or organization that nominates a candidate for election

to any Federal or State elected office whose name appears on the election ballot as the candidate of such association,

committee, or organization; and

(vii) the term ‘‘State’’ means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico,

and any territory or possession of the United States.

(k)(1)(A) The President may grant a waiver of a restriction imposed by this section to any officer or employee described

in paragraph (2) if the President determines and certifies in writing that it is in the public interest to grant the waiver

and that the services of the officer or employee are critically needed for the benefit of the Federal Government. Not

more than 25 officers and employees currently employed by the Federal Government at any one time may have been

granted waivers under this paragraph.

(B)(i) A waiver granted under this paragraph to any person shall apply only with respect to activities engaged in by

that person after that person’s Federal Government employment is terminated and only to that person’s employment

at a Government-owned, contractor operated entity with which the person served as an officer or employee immediately

before the person’s Federal Government employment began.

(ii) Notwithstanding clause (i), a waiver granted under this paragraph to any person who was an officer or employee

of Lawrence Livermore National Laboratory, Los Alamos National Laboratory, or Sandia National Laboratory

immediately before the person’s Federal Government employment began shall apply to that person’s employment by

any such national laboratory after the person’s employment by the Federal Government is terminated.

422 SENATE ETHICS MANUAL

(2) Waivers under paragraph (1) may be granted only to civilian officers and employees of the executive branch, other

than officers and employees in the Executive Office of the President.

(3) A certification under paragraph (1) shall take effect upon its publication in the Federal Register and shall identify—

(A) the officer or employee covered by the waiver by name and by position, and

(B) the reasons for granting the waiver.

A copy of the certification shall also be provided to the Director of the Office of Government Ethics.

(4) The President may not delegate the authority provided by this subsection.

(5)(A) Each person granted a waiver under this subsection shall prepare reports, in accordance with subparagraph (B),

stating whether the person has engaged in activities otherwise prohibited by this section for each six-month period

described in subparagraph (B), and if so, what those activities were.

(B) A report under subparagraph (A) shall cover each six-month period beginning on the date of the termination of

the person’s Federal Government employment (with respect to which the waiver under this subsection was granted) and

ending two years after that date. Such report shall be filed with the President and the Director of the Office of

Government Ethics not later than 60 days after the end of the six-month period covered by the report. All reports filed

with the Director under this paragraph shall be made available for public inspection and copying.

(C) If a person fails to file any report in accordance with subparagraphs (A) and (B), the President shall revoke the

waiver and shall notify the person of the revocation. The revocation shall take effect upon the person’s receipt of the

notification and shall remain in effect until the report is filed.

(D) Any person who is granted a waiver under this subsection shall be ineligible for appointment in the civil service

unless all reports required of such person by subparagraphs (A) and (B) have been filed.

(E) As used in this subsection, the term ‘‘civil service’’ has the meaning given that term in section 2101 of title 5.

18 U.S.C. § 210. Offer to procure appointive public office

Whoever pays or offers or promises any money or thing of value, to any person, firm, or corporation in consideration

of the use or promise to use any influence to procure any appointive office or place under the United States for any

person, shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. § 211. Acceptance or solicitation to obtain appointive public office

Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of value,

in consideration of the promise of support or use of influence in obtaining for any person any appointive office or

place under the United States, shall be fined under this title or imprisoned not more than one year, or both.

Whoever solicits or receives any thing of value in consideration of aiding a person to obtain employment under the

United States either by referring his name to an executive department or agency of the United States or by requiring

the payment of a fee because such person has secured such employment shall be fined under this title, or imprisoned

not more than one year, or both. This section shall not apply to such services rendered by an employment agency

pursuant to the written request of an executive department or agency of the United States.

18 U.S.C. § 216. Penalties and injunctions

(a) The punishment for an offense under section 203, 204, 205, 207, 208, or 209 of this title is the following:

(1) Whoever engages in the conduct constituting the offense shall be imprisoned for not more than one year or fined

in the amount set forth in this title, or both.

(2) Whoever willfully engages in the conduct constituting the offense shall be imprisoned for not more than five years

or fined in the amount set forth in this title, or both.

(b) The Attorney General may bring a civil action in the appropriate United States district court against any person

who engages in conduct constituting an offense under section 203, 204, 205, 207, 208, or 209 of this title and, upon

proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more

than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited

conduct, whichever amount is greater. The imposition of a civil penalty under this subsection does not preclude any

other criminal or civil statutory, common law, or administrative remedy, which is available by law to the United States

or any other person.

(c) If the Attorney General has reason to believe that a person is engaging in conduct constituting an offense under

section 203, 204, 205, 207, 208, or 209 of this title, the Attorney General may petition an appropriate United States

district court for an order prohibiting that person from engaging in such conduct. The court may issue an order

prohibiting that person from engaging in such conduct if the court finds that the conduct constitutes such an offense.

The filing of a petition under this section does not preclude any other remedy which is available by law to the United

States or any other person.

18 U.S.C. § 219. Officers and employees acting as agents of foreign principals

(a) Whoever, being a public official, is or acts as an agent of a foreign principal required to register under the Foreign

Agents Registration Act of 1938 or a lobbyist required to register under the Lobbying Disclosure Act of 1995 in

APPENDIX D 423

connection with the representation of a foreign entity, as defined in section 3(6) of that Act shall be fined under this

title or imprisoned for not more than two years, or both.

(b) Nothing in this section shall apply to the employment of any agent of a foreign principal as a special Government

employee in any case in which the head of the employing agency certifies that such employment is required in the

national interest. A copy of any certification under this paragraph shall be forwarded by the head of such agency to

the Attorney General who shall cause the same to be filed with the registration statement and other documents filed

by such agent, and made available for public inspection in accordance with section 6 of the Foreign Agents Registration

Act of 1938, as amended.

(c) For the purpose of this section ‘‘public official’’ means Member of Congress, Delegate, or Resident Commissioner,

either before or after he has qualified, or an officer or employee or person acting for or on behalf of the United States,

or any department, agency, or branch of Government thereof, including the District of Columbia, in any official function,

under or by authority of any such department, agency, or branch of Government.

18 U.S.C. § 286. Conspiracy to defraud the Government with respect to claims

Whoever enters into any agreement, combination, or conspiracy to defraud the United States, or any department or

agency thereof, by obtaining or aiding to obtain the payment or allowance of any false, fictitious or fraudulent claim,

shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 287. False, fictitious or fraudulent claims

Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or

to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof,

knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be

subject to a fine in the amount provided in this title.

18 U.S.C. § 431. Contracts by Member of Congress

Whoever, being a Member of or Delegate to Congress, or a Resident Commissioner, either before or after he has

qualified, directly or indirectly, himself, or by any other person in trust for him, or for his use or benefit, or on his

account, undertakes, executes, holds, or enjoys, in whole or in part, any contract or agreement, made or entered into

in behalf of the United States or any agency thereof, by any officer or person authorized to make contracts on its behalf,

shall be fined under this title.

All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is advanced

by the United States or any agency thereof, in consideration of any such contract or agreement, it shall forthwith be

repaid; and in case of failure or refusal to repay the same when demanded by the proper officer of the department

or agency under whose authority such contract or agreement shall have been made or entered into, suit shall at once

be brought against the person so failing or refusing and his sureties for the recovery of the money so advanced.

18 U.S.C. § 432. Officer or employee contracting with Member of Congress

Whoever, being an officer or employee of the United States, on behalf of the United States or any agency thereof,

directly or indirectly makes or enters into any contract, bargain, or agreement, with any Member of or Delegate to

Congress, or any Resident Commissioner, either before or after he has qualified, shall be fined under this title.

18 U.S.C. § 433. Exemptions with respect to certain contracts

Sections 431 and 432 of this title shall not extend to any contract or agreement made or entered into, or accepted by

any incorporated company for the general benefit of such corporation; nor to the purchase or sale of bills of exchange

or other property where the same are ready for delivery and payment therefor is made at the time of making or entering

into the contract or agreement. Nor shall the provisions of such sections apply to advances, loans, discounts, purchase

or repurchase agreements, extensions, or renewals thereof, or acceptances, releases or substitutions of security therefor

or other contracts or agreements made or entered into under the Reconstruction Finance Corporation Act, the Agricultural

Adjustment Act, the Federal Farm Loan Act, the Emergency Farm Mortgage Act of 1933, the Farm Credit Act of 1933,

or the Home Owners Loan Act of 1933, the Farmers’ Home Administration Act of 1946, the Bankhead-Jones Farm

Tenant Act, or to crop insurance agreements or contracts or agreements of a kind which the Secretary of Agriculture

may enter into with farmers.Any exemption permitted by this section shall be made a matter of public record.

18 U.S.C. § 597. Expenditures to influence voting

Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for

or against any candidate; and

424 SENATE ETHICS MANUAL

Whoever solicits, accepts, or receives any such expenditure in consideration of his vote or the withholding of his vote—

Shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall

be fined not more than $10,000 or imprisoned not more than two years, or both.

18 U.S.C. § 598. Coercion by means of relief appropriations

Whoever uses any part of any appropriation made by Congress for work relief, relief, or for increasing employment

by providing loans and grants for public-works projects, or exercises or administers any authority conferred by any

Appropriation Act for the purpose of interfering with, restraining, or coercing any individual in the exercise of his right

to vote at any election, shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. § 599. Promise of appointment by candidate

Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or

support for the appointment of any person to any public or private position or employment, for the purpose of procuring

support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation

was willful, shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. § 600. Promise of employment or other benefit for political activity

Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other

benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in

obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support

of or opposition to any candidate or any political party in connection with any general or special election to any political

office, or in connection with any primary election or political convention or caucus held to select candidates for any

political office, shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. § 601. Deprivation of employment or other benefit for political contribution

(a) Whoever, directly or indirectly, knowingly causes or attempts to cause any person to make a contribution of a thing

of value (including services) for the benefit of any candidate or any political party, by means of the denial or

deprivation, or the threat of the denial or deprivation, of—

(1) any employment, position, or work in or for any agency or other entity of the Government of the United States,

a State, or a political subdivision of a State, or any compensation or benefit of such employment, position, or work;

or

(2) any payment or benefit of a program of the United States, a State, or a political subdivision of a State;

if such employment, position, work, compensation, payment, or benefit is provided for or made possible in whole or

in part by an Act of Congress, shall be fined under this title, or imprisoned not more than one year, or both.

(b) As used in this section—

(1) the term ‘‘candidate’’ means an individual who seeks nomination for election, or election, to Federal, State, or local

office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed

to seek nomination for election, or election, to Federal, State, or local office, if he has (A) taken the action necessary

under the law of a State to qualify himself for nomination for election, or election, or (B) received contributions or

made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with

a view to bringing about his nomination for election, or election, to such office;

(2) the term ‘‘election’’ means (A) a general, special primary, or runoff election, (B) a convention or caucus of a

political party held to nominate a candidate, (C) a primary election held for the selection of delegates to a nominating

convention of a political party, (D) a primary election held for the expression of a preference for the nomination of

persons for election to the office of President, and (E) the election of delegates to a constitutional convention for

proposing amendments to the Constitution of the United States or of any State; and

(3) the term ‘‘State’’ means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico,

or any territory or possession of the United States.

18 U.S.C. § 602. Solicitation of political contributions

(a) It shall be unlawful for—

(1) a candidate for the Congress;

(2) an individual elected to or serving in the office of Senator or Representative in, or Delegate or Resident

Commissioner to, the Congress;

(3) an officer or employee of the United States or any department or agency thereof; or

(4) a person receiving any salary or compensation for services from money derived from the Treasury of the United

States; to knowingly solicit any contribution within the meaning of section 301(8) of the Federal Election Campaign

Act of 1971 from any other such officer, employee, or person. Any person who violates this section shall be fined

APPENDIX D 425

under this title or imprisoned not more than 3 years, or both.

(b) The prohibition in subsection (a) shall not apply to any activity of an employee (as defined in section 7322(1) of

title 5) or any individual employed in or under the United States Postal Service or the Postal Rate Commission, unless

that activity is prohibited by section 7323 or 7324 of such title.

18 U.S.C. § 603. Making political contributions

(a) It shall be unlawful for an officer or employee of the United States or any department or agency thereof, or a person

receiving any salary or compensation for service from money derived from the Treasury of the United States, to make

any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 to any other such

officer, employee or person or to any Senator or Representative in, or Delegate or Resident Commissioner to, the

Congress, if the person receiving such contribution is the employer or employing authority of the person making the

contribution. Any person who violates this section shall be fined under this title or imprisoned not more than three

years, or both.

(b) For purposes of this section, a contribution to an authorized committee as defined in section 302(e) (1) of the Federal

Election Campaign Act of 1971 shall be considered a contribution to the individual who has authorized such committee.

(c) The prohibition in subsection (a) shall not apply to any activity of an employee (as defined in section 7322(1) of

title 5) or any individual employed in or under the United States Postal Service or the Postal Rate Commission, unless

that activity is prohibited by section 7323 or 7324 of such title.

18 U.S.C. § 604. Solicitation from persons on relief

Whoever solicits or receives or is in any manner concerned in soliciting or receiving any assessment, subscription, or

contribution for any political purpose from any person known by him to be entitled to, or receiving compensation,

employment, or other benefit provided for or made possible by any Act of Congress appropriating funds for work relief

or relief purposes, shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. § 605. Disclosure of names of persons on relief

Whoever, for political purposes, furnishes or discloses any list or names of persons receiving compensation, employment

or benefits provided for or made possible by any Act of Congress appropriating, or authorizing the appropriation of

funds for work relief or relief purposes, to a political candidate, committee, campaign manager, or to any person for

delivery to a political candidate, committee, or campaign manager; and

Whoever receives any such list or names for political purposes—Shall be fined under this title or imprisoned not more

than one year, or both.

18 U.S.C. § 606. Intimidation to secure political contributions

Whoever, being one of the officers or employees of the United States mentioned in section 602 of this title, discharges,

or promotes, or degrades, or in any manner changes the official rank or compensation of any other officer or employee,

or promises or threatens so to do, for giving or withholding or neglecting to make any contribution of money or other

valuable thing for any political purpose, shall be fined under this title or imprisoned not more than three years, or both.

18 U.S.C. § 607. Place of solicitation

(a) It shall be unlawful for any person to solicit or receive any contribution within the meaning of section 301(8) of

the Federal Election Campaign Act of 1971 in any room or building occupied in the discharge of official duties by

any person mentioned in section 603, or in any navy yard, fort, or arsenal. Any person who violates this section shall

be fined under this title or imprisoned not more than three years, or both.

(b) The prohibition in subsection (a) shall not apply to the receipt of contributions by persons on the staff of a Senator

or Representative in, or Delegate or Resident Commissioner to, the Congress, provided, that such contributions have

not been solicited in any manner which directs the contributor to mail or deliver a contribution to any room, building,

or other facility referred to in subsection (a), and provided that such contributions are transferred within seven days

of receipt to a political committee within the meaning of section 302(e) of the Federal Election Campaign Act of 1971.

18 U.S.C. § 641. Public money, property or records

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells,

conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or

agency thereof, or any property made or being made under contract for the United States or any department or agency

thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been

embezzled, stolen, purloined or converted—

426 SENATE ETHICS MANUAL

Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property does

not exceed the sum of $1000, he shall be fined under this title or imprisoned not more than one year, or both.

The word ‘‘value’’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

18 U.S.C. § 713. Use of likenesses of the great seal of the United States, the seals of the President and Vice

President, and the seal of the United States Senate

(a) Whoever knowingly displays any printed or other likeness of the great seal of the United States, or of the seals

of the President or the Vice President of the United States, or the seal of the United States Senate, or any facsimile

thereof, in, or in connection with, any advertisement, poster, circular, book, pamphlet, or other publication, public

meeting, play, motion picture, telecast, or other production, or on any building, monument, or stationery, for the purpose

of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the

Government of the United States or by any department, agency, or instrumentality thereof, shall be fined under this

title or imprisoned not more than six months, or both.

(b) Whoever, except as authorized under regulations promulgated by the President and published in the Federal Register,

knowingly manufactures, reproduces, sells, or purchases for resale, either separately or appended to any article

manufactured or sold, any likeness of the seals of the President or Vice President, or any substantial part thereof, except

for manufacture or sale of the article for the official use of the Government of the United States, shall be fined under

this title or imprisoned not more than six months, or both.

(c) Whoever, except as directed by the United States Senate, or the Secretary of the Senate on its behalf, knowingly

uses, manufactures, reproduces, sells or purchases for resale, either separately or appended to any article manufactured

or sold, any likeness of the seal of the United States Senate, or any substantial part thereof, except for manufacture

or sale of the article for the official use of the Government of the United States, shall be fined under this title or

imprisoned not more than six months, or both.

(d) A violation of the provisions of this section may be enjoined at the suit of the Attorney General,

(1) in the case of the great seal of the United States and the seals of the President and Vice President, upon complaint

by any authorized representative of any department or agency of the United States; and

(2) in the case of the seal of the United States Senate, upon complaint by the Secretary of the Senate.

18 U.S.C. § 1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive,

legislative, or judicial branch of the Government of the United States, knowingly and willfully-

(I) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious or

fraudulent statement or entry;

shall be fined under this title or imprisoned not more than 5 years or both.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements,

representations, writings or documents submitted by such partyor counsel to a judge or magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to-

(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services,

personnel or employment practices, or support services, or a document required by law, rule, or regulation to be

submitted to the Congress or any office or officer within the legislative branch; or

(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or

office of the Congress, consistent with applicable rules of the House or Senate.

18 U.S.C. § 1719. Franking privilege

Whoever makes use of any official envelope, label, or indorsement authorized by law, to avoid the payment of postage

or registry fee on his private letter, packet, package, or other matter in the mail, shall be fined under this title.

18 U.S.C. § 1905. Disclosure of confidential information generally

Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting

on behalf of the Office of Federal Housing Enterprise Oversight, or agent of the Department of Justice as defined in

the Antitrust Civil Process Act (15 U.S.C. 1311–1314), publishes, divulges, discloses, or makes known in any manner

or to any extent not authorized by law any information coming to him in the course of his employment or official

duties or by reason of any examination or investigation made by, or return, report or record made to or filed with,

such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets,

processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of

any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any

income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by

any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year,

APPENDIX D 427

or both; and shall be removed from office or employment.

18 U.S.C. § 1913. Lobbying with appropriated moneys

No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by

Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed

or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor

or oppose, by vote or otherwise, any legislation or appropriation by Congress, whether before or after the introduction

of any bill or resolution proposing such legislation or appropriation; but this shall not prevent officers or employees

of the United States or of its departments or agencies from communicating to Members of Congress on the request

of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which

they deem necessary for the efficient conduct of the public business.

Whoever, being an officer or employee of the United States or of any department or agency thereof, violates or attempts

to violate this section, shall be fined under this title or imprisoned not more than one year, or both; and after notice

and hearing by the superior officer vested with the power of removing him, shall be removed from office or

employment.

TITLE 22, UNITED STATES CODE

22 U.S.C. § 2458a. Federal employee participation in cultural exchange programs (Section 108A, Mutual

Educational and Cultural Exchange Act of 1961, as amended)

(a) Grants and other foreign government assistance; family or household expense assistance prohibited; ‘‘Federal

employee’’ defined

(1) Congress consents to the acceptance by a Federal employee of grants and other forms of assistance provided by

a foreign government to facilitate the participation of such Federal employee in a cultural exchange—

(A) which is of the type described in section 2452(a)(2)(i) of this title,

(B) which is conducted for a purpose comparable to the purpose stated in section 2451 of this title, and

(C) which is specifically approved by the Director of the United States Information Agency for purposes of this section;

but the Congress does not consent to the acceptance by any Federal employee of any portion of any such grant or

other form of assistance which provides assistance with respect to any expenses incurred by or for any member of the

family or household of such Federal employee.

(2) For purposes of this section, the term ‘‘Federal employee’’ means any employee as defined in subparagraphs (A)

through (F) of section 7342(a)(1) of Title 5, but does not include a person described in subparagraph (G) of such section.

(b) Foreign grants and other assistance not gifts for purposes of section 7342 of Title 5

The grants and other forms of assistance with respect to which the consent of Congress is given in subsection (a) of

this section shall not constitute gifts for purposes of section 7342 of Title 5.

(c) Regulations

The Director of the United States Information Agency is authorized to promulgate regulations for purposes of this

section.

TITLE 26, UNITED STATES CODE

26 U.S.C. § 7701(k). Definitions

(k) Treatment of certain amounts paid to charity.—In the case of any payment which, except for section 501(b) of the

Ethics in Government Act of 1978, might be made to any officer or employee of the Federal Government but which

is made instead on behalf of such officer or employee to an organization described in section 170(c)—

(1) such payment shall not be treated as received by such officer or employee for all purposes of this title and for

all purposes of any tax law of a State or political subdivision thereof, and

(2) no deduction shall be allowed under any provision of this title (or of any tax law of a State or political subdivision

thereof) to such officer or employee by reason of having such payment made to such organization.

For purposes of this subsection, a Senator, a Representative in, or a Delegate or Resident Commissioner to, the Congress

shall be treated as an officer or employee of the Federal Government.

4TITLE 31, UNITED STATES CODE

31 U.S.C. § 1301. Application [of Appropriated Funds]

(a) Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise

provided by law.

(b) The reappropriation and diversion of the unexpended balance of an appropriation for a purpose other than that for

which the appropriation originally was made shall be construed and accounted for as a new appropriation. The

unexpended balance shall be reduced by the amount to be diverted.

428 SENATE ETHICS MANUAL

(c) An appropriation in a regular, annual appropriation law may be construed to be permanent or available continuously

only if the appropriation—

(1) is for rivers and harbors, lighthouses, public buildings, or the pay of the Navy and Marine Corps; or

(2) expressly provides that it is available after the fiscal year covered by the law in which it appears.

(d) A law may be construed to make an appropriation out of the Treasury or to authorize making a contract for the

payment of money in excess of an appropriation only if the law specifically states that an appropriation is made or

that such a contract may be made.

TITLE 39, UNITED STATES CODE

39 U.S.C. § 1002. Political recommendations

(a) Except as provided in subsection (e) of this section, each appointment, promotion, assignment, transfer, or

designation, interim or otherwise, of an officer or employee in the Postal Service (except a Governor or member of

the Postal Rate Commission) shall be made without regard to any recommendation or statement, oral or written, with

respect to any person who requests or is under consideration for such appointment, promotion, assignment, transfer, or

designation, made by—

(1) any Member of the Senate or House of Representatives (including the Resident Commissioner from Puerto Rico);

(2) any elected official of the government of any State (including the Commonwealth of Puerto Rico) or of any county,

city, or other political subdivision of such State or Commonwealth;

(3) any official of a national political party or of a political party of any State (including the Commonwealth of Puerto

Rico), county, city, or other subdivision of such State or Commonwealth; or

(4) any other individual or organization.

(b) Except as provided in subsection (e) of this section, a person or organization referred to in clause (1), (2), (3),

or (4) of subsection (a) of this section is prohibited from making or transmitting to the Postal Service, or to any other

officer or employee of the Government of the United States, any recommendation or statement, oral or written, with

respect to any person who requests or is under consideration for any such appointment, promotion, assignment, transfer,

or designation. The Postal Service and any officer or employee of the Government of the United States, subject to

subsection (e) of this section—

(1) shall not solicit, request, consider, or accept any such recommendation or statement; and

(2) shall return any such written recommendation or statement received by him, appropriately marked as in violation

of this section, to the person or organization making or transmitting the same.

(c) A person who requests or is under consideration for any such appointment, promotion, assignment, transfer, or

designation is prohibited from requesting or soliciting any such recommendation or statement from any person or

organization except a statement of the type referred to in subsection (e)(2) of this section.

(d) Each employment form of the Postal Service used in connection with any such appointment, promotion, assignment,

transfer, or designation shall contain appropriate language in boldface type informing all persons concerned of the

provisions of this section. During the time any such appointment, promotion, assignment, transfer, or designation is under

consideration, appropriate notice of the provisions of this section printed in boldface type shall be posted in the post

office concerned.

(e) The Postal Service or any authorized officer or employee of the Government of the United States may solicit, accept,

and consider, and any other individual or organization may furnish or transmit to the Postal Service or such authorized

officer or employee, any statement with respect to a person who requests or is under consideration for such appointment,

promotion, assignment, transfer, or designation, if—

(1) the statement is furnished pursuant to a request or requirement of the Postal Service and consists solely of an

evaluation of the work performance, ability, aptitude, and general qualifications of such person;

(2) the statement relates solely to the character and residence of such person;

(3) the statement is furnished pursuant to a request made by an authorized representative of the Government of the

United States solely in order to determine whether such person meets the loyalty, suitability, and character requirements

for employment with the Government of the United States; or

(4) the statement is furnished by a former employer of such person pursuant to a request of the Postal Service, and

consists solely of an evaluation of the work performance, ability, aptitude, and general qualifications of such person

during his employment with such former employer.

(f) The Postal Service shall take any action it determines necessary and proper, including but not limited to suspension,

removal from office, or disqualification from the Postal Service, to enforce the provisions of this section.

(g) The provisions of this section shall not affect the right of an officer or employee of the Postal Service to petition

Congress as authorized by section 7211 of title 5.

TITLE 41, UNITED STATES CODE

41 U.S.C. § 22. Interest of member of Congress

No Member of Congress shall be admitted to any share or part of any contract or agreement made, entered into, or

accepted by or on behalf of the United States, or to any benefit to arise thereupon. Nor shall the provisions of this

APPENDIX D 429

section apply to any contracts or agreements heretofore or hereafter entered into under the Agricultural Adjustment Act

[7 U.S.C.A. § 601 et seq.], the Federal Farm Loan Act, the Emergency Farm Mortgage Act of 1933, the Federal Farm

Mortgage Corporation Act, the Farm Credit Act of 1933, and the Home Owners’ Loan Act of 1933 [12 U.S.C.A. §

1461 et seq.], and shall not apply to contracts or agreements of a kind which the Secretary of Agriculture may enter

into with farmers: Provided, That such exemption shall be made a matter of public record.

TITLE 44, UNITED STATES CODE

44 U.S.C. § 1106 Inserting ‘‘compliments’’ forbidden

A report, document, or publication distributed by or from an executive department or independent agency or

establishment of the Government may not contain a notice that it is sent with ‘‘the compliments’’ of an officer of the

Government, or with a special notice that it is so sent, except that notice that it has been sent, with a request for an

acknowledgment of its receipt, may be given. (Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1261.)

430 SENATE ETHICS MANUAL

STATUTES and RULES CREATING

OVERLAPPING OR SHARED JURISDICTION

BETWEEN

LEGISLATIVE and EXECUTIVE BRANCH

STATUTE/RULE COMMITTEE

JURISDICTION

EXECUTIVE BRANCH

JURISDICTION

Financial Disclosure

(5 U.S.C. App. 101, and Rule 34)

Filing and review of Financial Disclosure ReportsDept. of Justice: Civil penalties for

failure to file in compliance with

the Act . (Forms are signed under

penalty of perjury; also, look for

amendment to 18 USC 1001 applying it to the legislative branch.)

Outside Earned Income

(5 U.S.C. App. 501, and Rule 36)

Administration of provision Dept. of Justice: Civil penalties for

violations under the statute

Prohibition of Honoraria

(5 U.S.C. App. 501, and Rule 36)

Administration of provision. Rule

continues in force, notwithstanding

the Supreme Court ruling in U.S.

v. NTEU.

Dept. of Justice: Civil penalties for

violations under the statute (enforcement suspended per Feb. 26,

1996 DOJ Office of Legal Counsel

Memorandum following United

States v. National Treasury

Employees Union, 115 S. Ct.

1003 (1995).

Foreign Gifts and Decorations

Act

(5 U.S.C. 7342, and Rule

35.1(c)(15))

Administration of provision Dept. of Justice: Civil penalties for

violations under the statute

Mutual Educational and Cultural Exchange Act

(22 U.S.C. 2458a, and Rule

35.1(c)(15))

Advise whether necessary expenses

are consistent with the law and

Senate Rule; Committee may make

inquiry based on inherent authority

United States Information Agency retains jurisdiction to issue regulations concerning the Act.

Bribery of Public Officials and

Witnesses

(18 U.S.C. 201, and Rule 37.1 & 2)

Administration of the Rule, and

Committee may make inquiry

based on inherent authority

Dept. of Justice: Criminal penalties

for violations under the statute

Compensation to Members, Officers, and Employees in matters affecting the Government

(18 U.S.C. 203, and Rule 37.1 & 2)

Administration of the Rule, and

Committee may make inquiry

based on inherent authority

Dept. of Justice: Criminal penalties

for violations under the statute

Activities of Officers and Employees in claims against and

other matters affecting Government

(18 U.S.C. 205, and Rule 37.1 & 2)

Administration of the Rule, and

Committee may make inquiry

based on inherent authority

Dept. of Justice: Criminal penalties

for violations under the statute

Restrictions on Former Officers

and Employees

(18 U.S.C. 207, and Rule 37.8 & 9)

Administration of the Rule Dept. of Justice: Criminal penalties

for violations under the statute

(431)

APPENDIX E

432

1 In February 1980, press reports linked Harrison A. Williams, Jr. to the FBI’s ABSCAM sting operation and investigation of business crime and political corruption. Williams was indicted on October 30, 1980, on nine counts, including

bribery, receipt of an unlawful gratuity, conflict of interest, and conspiracy to defraud the United States. The Select

Committee on Ethics commenced a preliminary inquiry after the initial press reports appeared in 1980, but deferred

further action until after the trial. On May 1, 1981, the jury found Williams guilty on all counts. On May 5, the Committee adopted a resolution authorizing an investigation of the Senator, and held hearings at which Williams was represented by counsel and was permitted to call and examine witnesses.

Despite Senator Williams’ claims that he never engaged in illegal conduct, on August 24 the Committee found

his conduct ‘‘ethically repugnant’’ and recommended his expulsion. In its report, the Committee concluded,

among other things, that the Senator had offered to use his influence to win a government contract and that

he intended to conceal his interest in the mining venture. The report declared that these and Williams’ other

actions tended ‘‘to bring the Senate into dishonor and disrepute, and only the most severe sanction is appropriate for such an abuse of the public trust.’’

On March 3, 1982 the Senate began debating whether to expel Senator Williams. Several Senators suggested

that censure was a more appropriate sanction. However, when it became apparent that the censure movement

lacked support and that the Senate would most likely vote for expulsion, Senator Williams resigned from the

Senate on March 11, 1982. Senate Report 97- 187 (September 3, 1981). 2When asked about the types of misconduct the committee might investigate, Senator John Sherman Cooper explained as follows: ‘‘I cannot foresee every case . . . I believe one of the great duties of such a committee would

be to have the judgment to know what it should investigate and what it should not, after looking into a question.’’

110 Cong. Record 16,933 (1964) 3 S. Res. 338, 88th Cong., 2d. Sess. (1964), as amended by S. Res. 110, 95th Cong., 1st Sess. (1977).

IMPROPER CONDUCT REFLECTING UPON THE SENATE

AND

GENERAL PRINCIPLES OF PUBLIC SERVICE

IMPROPER CONDUCT REFLECTING UPON THE SENATE

Certain conduct has been deemed by the Senate in prior cases to be unethical and improper even

though such conduct may not necessarily have violated any written law, or Senate rule or regulation. Such conduct has been characterized as ‘‘improper conduct which may reflect upon the Senate,’’ and has provided the basis for the Senate’s most serious disciplinary cases in modern times. 1

The Senate did not attempt to delineate all the types of conduct or the guidelines which should

be followed in determining which actions by a Member would constitute ‘‘improper conduct’’ reflecting on the Senate. 2 The drafters of the resolution in 1964 intended that ‘‘improper conduct’’

be cognizable by the Senate when it was so notorious or reprehensible that it could discredit the

institution as a whole, not just the individual, thereby invoking the Senate’s inherent and constitutional right to protect its own integrity and reputation.

Senate Resolution 338, as amended, makes it the duty of the Select Committee to—‘‘receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as

Members of the Senate, or as officers or employees of the Senate, and to make appropriate findings of fact and conclusions with respect thereto . . .’’ 3 (emphasis added)

S. Res. 338 gives the Committee the authority to investigate Members who engage in ‘‘improper

conduct which may reflect upon the Senate,’’ regardless of whether such conduct violates a specific statute, Senate Rule, or regulation. Indeed, the original Rules Committee proposal, rejected

by the Senate, would have given the Committee the authority to investigate only alleged violations

APPENDIX E 433

4 S. Rep. No. 1147, 88th Cong., 2d Sess. 1 (1964).

5 S. Res. 338, § 2(a)(1) (1964); 110 Cong. Rec. 16939 (1964)(emphasis added).

6 S. Rep. No. 1125, 88th Cong., 2d Sess. 13 (1964).

7 110 Cong. Rec. 16933 (1964)(emphasis added).

8 114 Cong. Rec. 6833 (1968).

9 Id. at 6842.

10 In a report of a 1964 investigation into certain activities undertaken by Bobby Baker, then Secretary to the Majority of the Senate, the Committee on Rules and Administration stated: ‘‘It is possible for anyone to follow the ‘letter

of the law’ and avoid being indicted for a criminal act, but in the case of employees of the Senate, they are expected,

and rightly so, to follow not only the ‘letter’ but also the ‘spirit’ of the law.’’ S. Rep. No. 1175, 88th Cong., 2d Sess.

5(1964). 11 See In Re Chapman, 166 U.S. 661, 669–670 (1897).

12 S. Doc. No. 7, 92d Cong., 1st Sess. 6 (1972) (Expulsion and Censure Cases).

13The Senate decided not to act on the Committee’s recommendation before the end of the session, and Senator

Patterson left the Senate at the end of his term. S. Rep. No. 519, 42d Cong., 3rd Sess. VIII-X (1873).

of the rules of the Senate. 4 In offering the amendment containing the language adopted by the

Senate 5, Senator Cooper described his amendment as authorizing the new committee ‘‘to receive

complaints of unethical, improper, illegal conduct of members.’’ 6 Senator Case, in discussing this

amendment, noted that the Committee ‘‘would not be limited to alleged violations of Senate rules,

but it would take into account all improper conduct of any kind whatsoever.’’ 7

In 1966, pursuant to S. Res. 338, the Select Committee on Standards and Conduct began to develop recommendations for rules and regulations regarding Senators’ conduct. The Committee ultimately proposed S. Res. 266, the Senate Code of Official Conduct, which addressed outside employment, disclosure of financial interests, and campaign contributions. The floor debate on this

resolution demonstrates that the Rules were not intended to be a comprehensive code of conduct

for Senators, but were targeted at a limited area of activity, and more importantly, that they were

not intended to displace generally accepted norms of conduct. During that debate, the Committee’s

Chairman, Senator John Stennis, stated:

‘‘We do not try to write a full code of regulations . . . . [O]ur effort is merely to add rules and

not to replace that great body of unwritten but generally accepted standards that will, of course,

continue in effect.’’ 8

In addition, the Committee’s Vice Chairman, Senator Wallace Bennett, stated that it was impossible to develop written rules that address every possible area of misconduct. 9

The phrase ‘‘improper conduct’’ as used by S. Res. 338 can be given meaning by reference to

generally accepted standards of conduct, the letter and spirit of laws and Rules, 10 and by reference

to past cases where the Senate has disciplined its Members for conduct that was deemed improper,

regardless of whether it violated any law or Senate rule or regulation.

As early as 1797, Senator William Blount was expelled from the Senate for inciting Native Americans against the government, despite the fact that he had committed no crime, and neither acted

in his official capacity nor during a session of Congress. 11 In 1811, the Senate censured Senator

Thomas Pickering for reading a confidential communication on the Senate floor, despite the fact

that there was no written rule prohibiting such conduct. 12 In 1873, a Senate Committee recommended the expulsion of Senator James Patterson, for accepting stock at a reduced price knowing that the offeror intended to influence him in his official duties, for giving a false account of

the transaction, suppressing material facts, and denying the existence of material facts which must

have been known to him. 13

In 1929, the Senate condemned Senator Hiram Bingham for placing an employee of a trade association with a direct interest in pending tariff legislation on the Senate payroll. In 1954, the Senate

condemned Senator Joseph McCarthy for his lack of cooperation with and abuse of two Senate

committees that investigated his conduct.

434 SENATE ETHICS MANUAL

14 S. Rep. No. 193, 90th Cong., 1st Sess. (1967).

15 S. Res. 112, 90th Cong., 1st Sess. (1967).

16 S. Rep. No. 382, 101st Cong., 2d Sess. 14 (1990).

17 136 Cong. Rec. 510,560 (daily ed. July 25, 1990) (statement of Senator Heflin).

None of these cases involved conduct that was found to violate any law, rule, or regulation, but

in each case, the conduct was deemed to violate accepted standards and values controlling Senators’ conduct.

After the passage of S. Res. 338 establishing the Select Committee on Standards and Conduct,

the first case involving a finding of improper conduct was the investigation of Senator Thomas

Dodd. The Committee investigated allegations of unethical conduct concerning the Senator’s relationship with a private businessman with overseas interests; the conversion of campaign contributions to personal use; the free use of loaned automobiles; and the acceptance of reimbursements

from both the Senate and private sources. Although no Senate rule or law prohibited the use of

campaign funds for personal use at that time, the Committee found that the testimonial dinners

investigated were political in character, and thus the proceeds should not have been converted to

personal use. 14

The Committee recommended, and the Senate adopted, a resolution censuring Senator Dodd for

having engaged in a course of conduct

‘‘exercising the influence and power of his office as a United States Senator . . . to obtain, and

use for his personal benefit, funds from the public through political testimonials and a political

campaign.’’

Such conduct, although not violative of any specific law or Senate rule in force at that time, was

found to be ‘‘contrary to accepted morals, derogates from the public trust expected of a Senator,

and tends to bring the Senate into dishonor and disrepute.’’ 15

In 1980, the Select Committee on Ethics investigated charges of financial irregularities in the office of Senator Talmadge, concerning excess official reimbursements, inaccurate financial disclosure and reporting, failure timely and properly to file campaign disclosures, and the personal use

of campaign funds, potentially in violation of various federal laws and Senate rules. Finding that

Senator Talmadge ‘‘either knew, or should have know, of these improper acts and omissions’’,

the Committee recommended and the Senate adopted a finding that the conduct was ‘‘reprehensible and tends to bring the Senate into dishonor and disrepute and is hereby denounced.’’

S.Rpt.No. 96–337, 96th Cong., 1st Sess. 18 (1979).

A ‘‘denouncement’’ was expressly recommended because the Committee felt that the facts were

‘‘distinguishable from those of earlier matters in which the Senate ‘censured’ or ‘condemned’ a

Member,’’ and that the judgment of the Committee and the Senate concerning such conduct could

be made using ‘‘words that do not depend on analogy to dissimilar historical circumstances for

interpretation.’’ S.Rpt. No. 96–337, supra at 18.

In 1990, upon the recommendation of the Committee, the Senate denounced Senator David Durenberger, in part based on his financial arrangements in connection with a condominium he owned

in Minneapolis, finding that his conduct was deemed to have ‘‘brought discredit upon the United

States Senate’’ by a ‘‘pattern of improper conduct,’’ although the Committee did not find that

any law or rule had been violated in connection with the condominium. 16 However, the Committee Chairman noted that the Senator’s conduct violated the spirit of 18 U.S.C. § 431, which

generally prohibits a Member from benefiting from a contract with the federal government. 17

In 1991 the Committee concluded that Senator Alan Cranston engaged in improper conduct which

reflected on the Senate by engaging in an impermissible pattern of conduct in which fund raising

and official activities were substantially linked. The Committee found that for about two years,

Senator Cranston had personally or through his staff contacted the Federal Home Loan Bank Board

APPENDIX E 435

18 S. Rep. No. 223, 102d Cong., 1st Sess. 36 (1991).

19 Decision of the Committee Concerning Senator DeConcini (aggressive conduct with regulators was inappropriate,

intervention with regulators gave appearance of being improper and was attended with insensitivity and poor judgment),

February 27, 1991; Decision of the Committee Concerning Senator Glenn (exercised poor judgment in arranging a meeting with Congressman), February 27, 1991; Decision of the Committee Concerning Senator McCain (exercised poor

judgment in intervening with regulators), February 27, 1991; and Decision of the Committee Concerning Senator Riegle

(conduct regarding intervention with regulators not condoned, created appearance of being improper, attended with insensitivity and poor judgment), February 27, 1991; Statement of the Committee Regarding Senator D’Amato (conducting

the business of his office in an improper and inappropriate manner, negligent in failing to establish appropriate standards

for operation of office). August 2, 1991.

on behalf of Lincoln Savings and Loan during a period when he was soliciting and accepting substantial contributions from Mr. Keating (Lincoln Savings and Loan) or his affiliates, and that Senator Cranston’s office practices further evidenced an impermissible pattern of conduct in which

fund raising and official activities were substantially linked. The Committee specifically found that

none of the activities of Senator Cranston violated any law or Senate rule. Nonetheless, the Committee found that his impermissible pattern of conduct

‘‘violated established norms of behavior in the Senate, and was improper conduct that reflects

upon the Senate, as contemplated in Section 2(a)(1) of S. Res. 338, 88th Congress, as amended.’’ 18

The Committee found that Senator Cranston’s conduct was improper and repugnant, and that it

deserved the ‘‘fullest, strongest, and most severe sanction which the Committee has the authority

to impose.’’ The Committee issued a strong and severe reprimand of Senator Cranston.

In 1992, the Committee found that Senator Hatfield engaged in improper conduct reflecting upon

the Senate by failing to disclose certain gifts and travel reimbursements as required by the Ethics

in Government Act of 1978 (Senate Rule 34). Based upon this finding, at the conclusion of its

Preliminary Inquiry, the Committee (with the Senator’s agreement to accept it), issued a ‘‘rebuke’’

to the Senator, thereby resolving the matter without further proceeding (See Committee Rule

4(f)(3)).

Most recently, in 1995, the Committee recommended the expulsion of Senator Bob Packwood of

Oregon based upon its findings that:

1) Senator Packwood endeavored to obstruct and impede the Committee’s inquiry, acts which the

Committee found to be reprehensible and contemptuous of the Senate’s constitutional self- disciplinary process, a violation of his duty of trust to the Senate, and an abuse of his position as a Senator reflecting discredit upon the Senate;

2) Senator Packwood engaged in a pattern of abuse of power and authority by repeatedly committing sexual misconduct through 18 unwanted and unwelcome sexual advances between 1969 and

1990, acts which the Committee found to bring discredit and dishonor upon the Senate and conduct unbecoming a Senator; and

3) Senator Packwood abused his position of power and authority by engaging in a deliberate and

systematic plan to enhance his personal financial position by soliciting, encouraging and coordinating employment opportunities for his wife from persons who had a particular interest in legislation or issues that he could influence, acts which the Committee found to bring discredit and dishonor upon the Senate and conduct unbecoming a Senator.

On September 8, Senator Packwood announced on the Senate floor his intention to resign from

the Senate; his resignation was effective October 1, 1995.

In other circumstances the Committee has stopped short of finding that alleged conduct was ‘‘improper conduct reflecting upon the Senate,’’ but has found that the conduct should not be condoned or should otherwise be criticized in a public statement by the Committee. 19

436 SENATE ETHICS MANUAL

20 Decision and Public Letter of Admonition of the Committee severely admonishing Senator Torricelli (accepted

items after payment of less than fair market value, accepted loan of artwork without due respect of Senate Rules governing such loans, acquiesced in gifts to his sister, friend and employee and continued a relationship with an individual

attempting to ingratiate himself with the Senator while the Senator was taking official actions of benefit to the individual) July 30, 2002.

21The Code of Ethics for Government Service, H. Con. Res. 175, 85th Cong., 2d Sess., July 11, 1958 (72 Stat.

B12).

The Code further states that any person in Government service should:

2.Uphold the Constitution, laws, and legal regulations of the United States and of all governments therein and

never be a party to their evasion.

3.Give a full day’s labor for a full day’s pay; giving to the performance of his duties his earnest effort and

best thought.

4.Seek to find and employ more efficient and economical waysof getting tasks accomplished.

5.Never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not; and never accept for himself or his family, favors or benefits under circumstances which might

be construed by reasonable persons as influencing the performance of his governmental duties.

6.Make no private promises of any kind binding upon the duties of office, since a Government employee has

no private word which can be binding on public duty.

7.Engage in no business with the Government, either directly or indirectly which is inconsistent with the conscientious performance of his governmental duties.

8.Never use any information coming to him confidentially in the performance of governmental duties as a

means for making private profit.

9.Expose corruption wherever discovered.

Finally, the Committee’s Rules also permit the Committee to determine that inadvertent, technical

or de minimis violations may be disposed of by issuing a public or private letter of admonition

which shall not be considered discipline and which is not subject to appeal to the Senate. 20

GENERAL PRINCIPLES OF PUBLIC SERVICE

The Code of Ethics for Government Service, passed by Concurrent Resolution on July 11, 1958,

is also specifically listed in the Committee’s Rules as a source of jurisdiction for the Committee

under S. Res. 338. It sets out ten broadly-worded standards that should be adhered to by all government employees, including office-holders. The first and last of these standards state that any

person in government service should:

‘‘1. Put loyalty to the highest moral principles and to country above loyalty to persons, party,

or Government department.

10. Uphold these principles, ever conscious that public office is a public trust.’’ 21

Again, these principles generally encompass conduct that may not violate a specific law, rule, or

regulation, but that is not consistent with ‘‘loyalty to the highest moral principles.’’ A violation

of this Code has not, to date, been used as a basis for Senate disciplinary action, although the

House has disciplined its Members for violations of the Code on several occasions. The Select

Committee’s Rules of Procedure (See Appendix C) set out the sources of the Committee’s subject

matter jurisdiction, which include the Preamble to S. Res. 266, and the Code of Ethics for Government Service.

The Preamble to S. Res. 266, by which the Senate Code of Official Conduct was first adopted

in 1968, reiterated the guiding principle that ‘‘a public office is a public trust.’’ This Preamble

remains a part of Senate’s Standing Orders.

(437)

APPENDIX F

(438)

Regulations Governing

THE USE OF THE

MAILING FRANK

by

Members and Officers of The

United States Senate

(S. Pub. 107–12)

May, 2001

SELECT COMMITTEE ON ETHICS

UNITED STATES SENATE

SELECT COMMITTEE ON ETHICS

Pat Roberts, Kansas, Chairman

Harry Reid, Nevada, Vice Chairman

George Voinovich, Ohio

Craig Thomas, Wyoming

Daniel Akaka, Hawaii

Blanche Lincoln, Arkansas

Victor Baird, Staff Director and Chief Counsel

Annette Gillis, Chief Clerk

(439)

CONTENTS

FOREWORD ........................................................................................................................ 441

CHAPTER ONE

WHO MAY USE THE MAILING FRANK ........................................................................ 442

1. Senators and Officers of the Senate .............................................................................. 442

2. Responsibility for Use of the Mailing Frank ................................................................. 442

3. Senator-elect .................................................................................................................... 442

4. Prohibition on Loan of the Frank .................................................................................. 442

5. Senator Who Has Resigned ............................................................................................ 443

6. Upon the Death of a Senator; Responding to Letters of Condolence Upon the

Death of a Senator’s Spouse ........................................................................................... 444

7. Committees ...................................................................................................................... 444

8. Penalty for Unauthorized Use ........................................................................................ 444

CHAPTER TWO

CONTENTS OF FRANKABLE MAIL ............................................................................... 445

1. Policy of Congress ........................................................................................................... 445

2. Intent of Congress ........................................................................................................... 445

3. Matters of Public Concern or Public Service ................................................................ 445

4. Newsletters and News Releases ..................................................................................... 445

5. Questionnaire Seeking Public Opinion .......................................................................... 446

6. Mail Between a Senator’s Washington Office and Home State Offices ...................... 446

7. Mail to Other Legislators ............................................................................................... 447

8. Congratulatory Messages ............................................................................................... 447

9. Federal and Other Publications ..................................................................................... 447

10. Congressional Record .................................................................................................... 447

11. Books .............................................................................................................................. 447

12. Public Service Material ................................................................................................. 448

13. Voting Information ........................................................................................................ 448

14. Biographical Matter ...................................................................................................... 448

15. The Picture of a Senator ............................................................................................... 449

Page

440

16. Personal Matter ............................................................................................................. 449

17. Political Matter ............................................................................................................. 450

18. Solicitation of Funds ..................................................................................................... 450

19. Seeds and Agricultural Reports ................................................................................... 450

20. Correction of Mailing Lists ........................................................................................... 450

CHAPTER THREE

MASS MAILING ................................................................................................................. 452

1. Definition of a Mass Mailing .......................................................................................... 452

2. Definition of a Candidate ............................................................................................... 452

3. Definition of a Primary or General Election ................................................................. 452

4. Registration of Mass Mailing ......................................................................................... 453

5. Moratorium on the Use of the Frank for Mass Mailings ............................................. 453

6. Restrictions on the Use of Mass Mailing by All Senators Prior to a Biennial

Federal General Election ................................................................................................ 453

7. Restrictions on the Use of Mass Mailing by Candidates Prior to a Primary,

General, or Special Election ............................................................................................ 453

8. Preparation of Mass Mailing Material .......................................................................... 453

9. Use of Senate Computer Facilities ................................................................................ 454

10. Prior Review of Mass Mailings .................................................................................... 454

CHAPTER FOUR

VIOLATIONS ...................................................................................................................... 455

1. Proper Use of Frank ....................................................................................................... 455

2. Responsibility of Senators’ Assistants ........................................................................... 455

3. Complaints ....................................................................................................................... 455

4. Restitution for Mistake ................................................................................................... 455

APPENDIX .......................................................................................................................... 456

LAWS RELATING TO THE MAILING OF CONGRESSIONAL FRANKED MAIL ..... 456

REGULATIONS GOVERNING OFFICIAL MAIL ........................................................... 462

441

FOREWORD

The Senate Select Committee on Ethics has established these Regulations in an effort to provide

guidance and assistance on the use of the franked mail privilege. The Regulations define frankable

mail matter and discuss the procedures surrounding the use of the frank.

The Regulations apply to all Members of the Senate, and Senate officials who are authorized to

use the frank. While day-to-day decisions on the use of the frank are usually made by staff assistants, the responsibility for proper use rests with individual Members and officers of the Senate.

Staff should, therefore, familiarize themselves with these Regulations.

The Members of the Ethics Committee, and its staff, are available to answer written and oral questions on the proper use of the frank.

442 SENATE ETHICS MANUAL

CHAPTER ONE

WHO MAY USE THE MAILING FRANK

1. Senators and Officers of the Senate

Senators and others authorized to use the mailing frank by sections 3210, 3211, and 3218

of Title 39 of the United States Code include:

(a) a Senator, until the expiration of the 90 day period immediately following the date

on which he leaves office;

(b) a Senator-elect;

(c) the Vice-President;

(d) the Secretary of the Senate;

(e) the Sergeant at Arms of the Senate;

(f) the Legislative Counsel of the Senate;

(g) the Senate Legal Counsel;

(h) any authorized person in case of a vacancy in the offices of (d), (e), (f) or (g) above;

and

(i) the surviving spouse or a designated surviving relative of a Senator who died during

his or her term of office, for not more than 180 days after the Senator’s death.

2. Responsibility for Use of the Mailing Frank

The franked mail privilege is the personal responsibility of each Senator (see Chapter Four,

paragraph 1 of these Regulations). While individual employees within the office of a Senator have

the day-to-day use of the mailing frank, as authorized by section 3210 et seq., and as directed

by the Senator, it remains the responsibility of the Senator to oversee the use of the franked mail

privilege by his or her office and to ensure that the use of the privilege is consistent with the

requirements established by the statute, these Regulations, the Standing Rules of the Senate, Interpretative Rulings of the Select Committee on Ethics, and Regulations established by the Committee

on Rules and Administration.

3. Senator-elect

A Senator-elect may use the frank to mail matter relating to his or her official duties and

functions. Examples of such frankable mail would include correspondence relating to official meetings attended and legislative initiatives to be pursued. While mail matter regarding personal, political, or other non-official undertakings would not be frankable, a Senator-elect may use the franked

mail privilege to respond to inquiries from constituents on official business and activities, and the

privilege may be used to respond to letters of congratulations on the Senator’s election.

4. Prohibition on Loan of the Frank

(a) Section 3215 of Title 39, U.S. Code, states: ‘‘A person entitled to use a frank may not

lend it or permit its use by any committee, organization, or association, or permit its use by any

person for the benefit or use of any committee, organization, or association. This section does not

apply to any standing, select, special or joint committee or subcommittee thereof, or commission,

of the Senate, House of Representatives, or Congress, composed of Members of Congress, or to

the Democratic Caucus or the Republican Conference of the House of Representatives or of the

Senate.’’

APPENDIX F 443

1The non-Senate group must be reimbursed for the cost of the labels provided and for the cost of the printing

labeling process.

Reimbursement is not required where the non-Senate organization is an agency of the Federal government or

a State university. (See Paragraph 2 of Senate Rule 40, Senate Rule 38, and Paragraph 8 of Chapter 3 below,

concerning the preperation of mass mailing material.)

(b) This prohibition on the loan of the frank means that a Senator or official authorized to

franked mail matter may not allow the frank to be used in any way that would inure to the benefit

of any third party not permitted to use the frank. Such organizations include:

-charitable fund-raising organization(s)

-political campaign committee(s)

-testimonial fund-raising dinner sponsor(s)

-trade organization(s)

-bar committee(s)

-political party(ies)

-State society(ies)

Other sections of the statute prohibit personal, partisan, and political uses of the frank. Any

solicitation of funds for any purpose is likewise prohibited. If a mailing under the frank would

result in an economic benefit to a non-Senate organization which otherwise would have had to

pay postage on the mailing, use of the frank would be improper.

Similarly, because of the potential for abuse, a non-Senate organization is not permitted to

stuff or mail franked envelopes, or to prepare and mail self-mailers. This restriction does not apply

to the labeling of self-mailers or unstuffed, unsealed franked envelopes by a non-Senate organization under the direct supervision of an employee from a Senator’s office. Such envelopes or selfmailers must be returned to the Senate Service Department or to an office of the Senator for stuffing and mailing. 1

(c) The sending back of a return-addressed and franked piece of mail to a Senator, or to an

officer of the Senate, by an addressee does not constitute a loan of the frank if the mail matter

is frankable and if the return of the frank remains under the Senator’s or officer’s control and

is used solely to expedite the conduct of official Senate business. The following are examples of

proper uses of the frank:

- A Senator may provide a franked envelope to a radio or television station to facilitate

the return of a frankable radio or television tape.

- The Secretary of the Senate may enclose a franked self-addressed envelope in a letter

to State officials requesting the return of certain forms and reports required to be filed under

Federal election laws.

- A Senate committee which maintains a mailing list for its official reports may use a

franked return-address postal card for addresses to indicate its continued desire to receive reports.

- A Senator may provide a franked, pre-addressed mailer or envelope for the return to

the Senator of responses to a qualified survey questionnaire.

(See paragraph 5 of Chapter 2, below, and Appendix 2.)

5. Senator Who Has Resigned

A Senator who resigns his office is entitled, under section 3210(b)(3) of Title 39, U.S. Code,

to use the frank for matters of official business relating to the closing of his office during the

90- day period immediately following his resignation.

444 SENATE ETHICS MANUAL

6. Upon the Death of a Senator; Responding to Letters of Condolence Upon the Death of a Senator’s Spouse

(a) Section 3218 provides that upon the death of a Senator, the surviving spouse of the Senator (or, if there is no surviving spouse, a member of the immediate family of the Senator designated by the Secretary of the Senate) may send non-political correspondence relating to the death

of the Senator for a period not to exceed 180 days after the Senator’s death.

(b) All frankable correspondence involving legislative and constituent service matters being

handled by the office of the deceased Senator is to be mailed using the franked mail privilege

of the Secretary of the Senate, under procedures established by the Secretary.

(c) Although the franked mail statute does not authorize the use of the mailing frank to mail

letters of condolence to the public, a Senator may use the franked mail privilege to send replies

to letters of condolence received from the public upon the death of a member of the Senator’s

immediate family.

7. Committees

(a) Mail matter of any standing, select or special committee established by a Resolution of

the Senate, or of any joint committee or commission established by Congress, whose chairman

is a Senator, may be sent under the frank of the chairman, if the mail matter is frankable under

section 3210. Mail matter must relate, in the case of a standing, select or special committee of

the Congress, exclusively to the official business of the committee and may not focus unduly upon

the chairman or any other Member of the Committee.

The Democratic Caucus and the Republican Conference of the Senate may use the frank under

the authority of section 3215 to mail matter which meets the tests of frankability set forth in section 3210. Mail matter sent under the frank of either the Democratic Caucus or the Republican

Conference must relate exclusively to the official legislative and related activities of the Congress

and may not be partisan or political. (See Chapter Two, paragraph 1 of these Regulations and

2 U.S.C. 439(b)).

(b) The services of a campaign committee, political party or other partisan political organization, or an organization utilizing a list of names and addresses developed for or by such a campaign committee or political organization, may not be used to prepare or process any part of a

franked mailing.

8. Penalty for Unauthorized Use

Section 1719 of Title 18, U.S. Code, states: ‘‘Whoever makes use of any official envelope,

label, or endorsement authorized by law, to avoid the payment of postage or registry fee on his

private letter, packet, package, or other matter in the mail, shall be fined not more than $300.’’

APPENDIX F 445

CHAPTER TWO

CONTENTS OF FRANKABLE MAIL

1. Policy of Congress

Section 3210(a)(1) of Title 39, U.S. Code, as enacted by Public Law 93–191 and as amended

by Public Law 94–177, states, It is the policy of the Congress that the privilege of sending mail

as franked mail shall be established under this section in order to assist and expedite the conduct

of the official business, activities, and duties of the Congress of the United States.

2. Intent of Congress

Section 3210(a)(2) states, ‘‘It is the intent of the Congress that such official business, activities, and duties cover all matters which directly or indirectly pertain to the legislative process or

to any congressional representative functions generally, or to the functioning, working, or operating

of the Congress and the performance of official duties in connection therewith, and shall include,

but not be limited to, the conveying of information to the public, and the requesting of the views

of the public, or the views and information of another authority of Government, as a guide or

a means of assistance in the performance of those functions.’’

3. Matters of Public Concern or Public Service

Section 3210(a)(3)(A) authorizes the franking of mail matter ‘‘regarding programs, decisions,

and other related matters of public concern or public service, including any matter relating to actions of a past or current Congress.’’

These matters generally relate to legislative actions or the official business of a Senator’s office and must relate principally to the Federal government. There are some limited instances where

the frank may properly be used to send material of purely State and local concern. For example,

a Senator may communicate with State and local officials on matters of State and local concern,

and with constituents who have inquired or communicated on State or local matters. Nevertheless,

mass mailings sent at a Senator’s initiative should relate to federal matters and the impact of federal policies on States, communities, and individual citizens, and should not contain matters of

purely State and local concern.

(See also paragraph 4, below.)

4. Newsletters and News Releases

Section 3210(a)(3)(B) authorizes the franking of newsletters and press re-leases dealing with

‘‘such matters as the impact of laws and decisions on State and local governments and individual

citizens; reports on public and official actions taken by Members of Congress; and discussions

of proposed or pending legislation or governmental actions and the positions of the Members of

Congress on, and arguments for or against, such matters.’’

Personal material or material of a partisan political nature shall not be included in newsletters

and news releases mailed under the frank. For an explanation of what constitutes unfrankable personal material and unfrankable political material, see also paragraphs 16 and 17 respectively in

this chapter.

Biographical matter concerning the Senator or any member of his family shall not be included

in a newsletter, as stated in paragraph 14 of this chapter. The inclusion of pictures of the Senator

in a newsletter shall be limited by the provisions of paragraph 15 of this chapter.

446 SENATE ETHICS MANUAL

The type in which the Senator’s name appears anywhere in a newsletter, other than the masthead, may not exceed 1/4′′ in height.

A ‘‘personal reference’’ (the use of a Senator’s name or the word ‘‘Senator’’ in place of the

Senator’s name) may not appear in a newsletter or other mass mailing more than an average of

eight times per page. For example, in a two-page newsletter, page one could contain ten ‘‘personal

references’’, and page two could contain five ‘‘personal references’’, as long as, taken together,

they would not exceed sixteen—an average of eight per page. For purposes of this limitation, the

use of a Senator’s name, preceded by the word ‘‘Senator’’, as in ‘‘Senator Smith’’, or ‘‘Senator

John Smith’’, constitutes only one ‘‘personal reference.’’

(1) This limitation does not include the Senator’s name in the frank on the self-mailer, or

on the masthead, nor does it apply to the mass mailing of otherwise frankable official Government

records or publications. For example, the personal reference rule does not apply to the mass mailing of hearing transcripts or a copy of, or an excerpt from, the Congressional Record. If, however,

portions or excerpts are reprinted from such sources in the text of a newsletter or other mass mailing, then the personal reference rule does apply and personal references are limited to no more

than an average of eight per page.

(2) The personal reference limitation is not applicable to a frankable opening statement by

a Senator before a committee of the Congress.

For the purposes of the limitation on personally phrased references to the Senator, a ‘‘page’’

is each side of an 8 1/2′′ by 11′′ or 8 1/2′′ by 14′′ sheet of paper, irrespective of the number

of folds utilized in the design of the matter mailed. Thus, if a newsletter is on a legal-size sheet

of paper and has print on both sides, it would be a two-page newsletter, even if the paper were

folded to resemble a four-page pamphlet.

(See paragraph 5 of Chapter 3, ‘‘Moratorium on Use of the Frank for Mass Mailings’’ and

paragraph 9 of Chapter 3, ‘‘Preparation of Mass Mailing Material.’’)

5. Questionnaire Seeking Public Opinion

Section 3210(a)(3)(C) authorizes franking of questionnaires ‘‘seeking public opinion on any

law, pending or proposed legislation, public issue, or subject.’’ Such questionnaires must be designed to aid a Senator in the conduct of the official business of the Senate and must relate to

existing Federal law, pending or proposed legislation, or public policy questions and issues with

which the Senator is concerned.

The Committee on Rules and Administration has established guidelines on the use of the frank

for the return of questionnaires. (See Appendix 2 to these Regulations.)

A tabulation of the results of questionnaires received by the Senator may be included in his

newsletter or other frankable reports to his constituents.

6. Mail Between a Senator’s Washington Office and Home State Offices

Section 3210(a)(3)(D) authorizes the franking of ‘‘mail matter dispatched by a Member of

Congress between his Washington office and any Congressional district offices, or between his

district offices.’’

As applied to Senators, Congressional district offices refer to home State offices.

Mail matter franked under this provision must relate to the official duties of a Senator and

is subject to the restrictions on the frankability of mail matter in general, including those relating

to the use of personal or political material set forth in paragraphs 16 and 17 respectively of this

chapter.

APPENDIX F 447

7. Mail to Other Legislators

Section 3210(a)(3)(E) authorizes the franking of ‘‘mail matter directed by one Member of

Congress to another Member of Congress or to representatives of the legislative bodies of State

and local governments.’’

Mail matter franked under this provision must relate to the official duties of a Senator and

is subject to the restrictions on the frankability of mail matter in general, including those relating

to the use of personal or political material set forth in paragraphs 16 and 17 respectively of this

chapter.

8. Congratulatory Messages

Section 3210(a)(3)(F) authorizes the franking of ‘‘mail matter expressing congratulations to

a person who has achieved some public distinction.’’

This provision precludes the use of the franking privilege for mailing letters of congratulations

and condolences upon occasions such as birth, graduation from high school and college, marriage,

death and other landmark occasions which, although they may as well be viewed as a personal

or private distinction, mark neither a unique public occasion, nor the achievement of a public distinction accorded in recognition of unusual public service to community, state, or nation.

The following examples are ‘‘public distinctions’’ for which the frank could be used to mail

a letter of congratulations: senior citizens who have received a high school diploma through an

adult education program; newly naturalized American citizens; enlisting or re-enlisting in the

Armed Forces of the United States; and becoming an Eagle Scout, VFW State Commander, American Legion State Commander, or head of a state or regional union council.

9. Federal and Other Publications

Section 3210(a)(3)(G) authorizes the franking of ‘‘mail matter, including general mass mailings, which consist of Federal laws, Federal regulations, other Federal publications, publications

purchased with Federal funds, or publications containing items of general information.’’

Frankable Federal publications include the Agricultural Yearbook, Congressional Directory,

Senate wall calendar, Department of Agriculture pamphlets, and any other publication printed by

order of Congress which relates to the legislative process. Seeds and agricultural reports from the

Department of Agriculture are specifically frankable as stated under paragraph 19 of this chapter.

10. Congressional Record

(a) Section 3212 authorizes Senators to send the Congressional Record as franked mail. That

section also states, ‘‘Members of Congress may send, as franked mail, any part of, or a reprint

of any part of, the Congressional Record, including speeches or reports contained therein, if such

matter is mailable as franked mail under section 3210. . . .’’

(b) Matter reprinted from the Congressional Record does not become frankable under section

3210 et seq., simply because it has appeared in the Congressional Record.

11. Books

The personal books belonging to a Senator, other than Federal publications, are not frankable.

Surplus and other books and publications from the Library of Congress are frankable to other

libraries or persons. A Senator may provide franked labels to the Library of Congress to be used

in shipping such books or publications as long as the Senator takes such steps as may be necessary

to avoid misuse resulting in an improper loan of the frank. (See paragraph 4 of Chapter 1.)

448 SENATE ETHICS MANUAL

Ordinarily, a book which is printed privately under the authorship or editorship of a Senator

is not frankable; however, if the book is substantially biographical under the provisions of paragraph 14 of this chapter, it may be mailed under the frank in response to a specific request for

biographical material.

12. Public Service Material

Section 3210(f) provides that:

‘‘Any mass mailing which otherwise would be permitted to be mailed as franked mail

under this section shall not be so mailed unless the cost of preparing and printing of the mail

matter is paid exclusively from the funds appropriated by Congress, except that an otherwise

frankable mass mailing may contain, as an enclosure or supplement, any public service material which is purely instructional or informational in nature, and which in content is frankable

under this section.’’

Rule 40 (Franking Privilege and Radio and Television Studios)

Paragraph 2 provides:

‘‘A Senator shall use only official funds of the Senate, including his official Senate allowances, to purchase paper, to print, or to prepare any mass mailing material which is to be

sent out under the frank.’’

The franked mail statute, 39 U.S.C. 3210 (a)(5)(D) authorizes the Select Committee to prescribe regulations as the Committee considers necessary and proper for Members of the Senate

to conform to the provisions of the statute. Under this authority the Select Committee is presently

engaged in an effort to properly define the parameters of the term frankable public service material. Pending a definitive opinion by the Committee in defining this term, Members and staff are

cautioned to employ a narrow reading of the term frankable public service material and where

a question exists as to public service material which is intended to be used in a franked mass

mailing, the Committee will provide guidance on a case-by-case basis for Members before the

mailing is sent out under the franked mail statute.

13. Voting Information

Section 3210(a)(3)(H) authorizes the franking of ‘‘mail matter which consists of voter registration or election information or assistance prepared and mailed in a non-partisan manner.’’

Letters from a Senator thus may be sent under the frank to new student voters, recently naturalized citizens, and other newly enfranchised voters encouraging them to vote by providing information or assistance. Special caution must be exercised, however, to ensure that this mail does

not include unfrankable political material as described in paragraph 17 of this chapter.

Voter registration or election information or assistance of a non-partisan nature may be included in an otherwise frankable newsletter.

14. Biographical Matter

Section 3210(a)(3)(I) authorizes the franking of ‘‘mail matter which constitutes or includes

a biography or autobiography of any Member of, or Member-elect to, Congress or any biographical or autobiographical material concerning such Member or Member-elect or the spouse or other

members of the family of such Member or Member-elect, and which is so mailed as a part of

a Federal publication or in response to a specific request therefor and is not included for publicity

purposes in a newsletter or other general mass mailing of the Member or Member-elect under the

franking privilege.’’

APPENDIX F 449

This matter may be a book or a part of a book, a specially printed brochure, a newspaper

or magazine article, a copy of a speech, or other available form.

The frankability of biographical matter could be affected by the inclusion of personal matter

for publicity, advertising, or potential use for political purposes. (See paragraphs 16 and 17 of

this chapter.)

15. The Picture of a Senator

Section 3210(a)(3)(J) authorizes the franking of ‘‘mail matter which contains a picture, sketch,

or other likeness of any Member or Member-elect and which is so mailed as a part of a Federal

publication or in response to a specific request therefor and, when contained in a newsletter or

other general mass mailing of any Member or Member-elect, is not of such size, or does not occur

with such frequency in the mail matter concerned, as to lead to the conclusion that the purpose

of such picture, sketch, or likeness is to advertise the Member or Member-elect rather than to illustrate accompanying text.’’

Any picture, sketch, or other likeness in which a Senator appears in a newsletteror other mass

mailing shall conform to the following requirements:

-Such pictures, sketches, or other likenesses must relate to the content of the newsletter;

i.e., a brief caption will not be deemed sufficient as accompanying text if the picture, sketch,

or other likeness is otherwise unrelated to the body of the newsletter.

-The total number of pictures, sketches, or other likeness (excluding a photograph, sketch,

or other illustration in the masthead) in which the Senator appears in a single issue may not

be more than four.

-A picture, sketch, or other likeness of a Senator alone shall be no larger than 12 square

inches.

-A picture, sketch, or other likeness of a Senator with one or more other persons shall

be no larger than 20 square inches.

Photographs of a Senator may only be mailed in direct response to specific requests from

the public.

16. Personal Matter

(a) Section 3210(a)(4) prohibits the use of the frank for ‘‘the transmission through the mail

. . . of matter which in its nature is purely personal to the sender or to any other person and

is unrelated to the official business, activities, and duties of the public officials covered by subsection (b)(1) of this section (who are authorized to use the frank).’’

(b) Section 3210(a)(5)(A) prohibits the use of the frank for ‘‘mail matter which constitutes

or includes any article, account, sketch, narration, or other text laudatory and complimentary of

any Member of, or Member-elect to, Congress on a purely personal or political basis rather than

on the basis of performance of official duties as a Member or on the basis of activities as a Member-elect.’’

Mail matter complimenting a Senator is frankable only if it relates to achievements in the

performance of Senate duties. However, the use, in a newsletter or other mass mailing, of matter

which is laudatory or complimentary to the Senator, no matter how deserving or how accurate

may give the impression that the Senator is advertising himself for political purposes.

(c) Section 3210 (a)(5)(B)(i) permits a Member or Member-elect to express greetings from

his or her spouse or members of the family of such Member or Member-elect if such greetings

are brief and incidental to an otherwise frankable mailing.

450 SENATE ETHICS MANUAL

(d) Section 3210 (a)(5)(B)(ii) prohibits the use of the frank for ‘‘reports of how or when such

Member or Member-elect, or the spouse or any other member of the family of such Member or

Member-elect, spends time other than in the performance of, or in connection with, the legislative,

representative, and other official functions of such Member or the activities of such Member-elect

as a Member-elect.’’

(e) Section 3210(a)(5)(B)(iii) prohibits the use of the frank for -any card expressing holiday

greetings from (a Senator).- This prohibition extends to acknowledgments of holiday greetings sent

to a Senator, but does not preclude an expression of holiday greetings at the commencement or

conclusion of otherwise frankable correspondence.

17. Political Matter

(a) Section 3210(a)(3)(B) authorizes the frank for mail matter which reports on ‘‘public and

official actions taken by Members of Congress’’ or which discusses ‘‘proposed or pending legislation or governmental actions and the positions of the Members of Congress on, and arguments

for or against, such matters.’’

(b) Mail matter may, therefore, include arguments or opinions which explain or advocate support or opposition to potential, proposed, or pending legislation, or policy positions of any branch

or agency of government, provided that the arguments or opinions focus on the merits of the policy issues and not on political considerations.

(c) Section 3210(a)(5)(C) prohibits the use of the frank for ‘‘mail matter which specifically

solicits political support for the sender or any other person or any political party or a vote or

financial assistance for any candidate for any political office.’’

(d) Mail matter which mentions that the Senator or an employee of a Senator is a candidate

for political office is not frankable. Similarly, mail matter which constitutes electioneering, or

which advocates the election or defeat of any individuals, or a political party is not frankable.

(e) The use of the political designation ‘‘D’’ or ‘‘R’’ when used for purposes of party identification in an otherwise frankable mailing is not prohibited.

(f) After general election for his office, a Senator who was a candidate may send under his

frank and in response to a specific request from a history scholar, library, museum, or individual

collector the following types of material: platform statements, bumper stickers, posters and buttons.

18. Solicitation of Funds

No solicitation of funds for any purpose may be made under the franked mail privilege (2

U.S.C. 439(b)).

19. Seeds and Agricultural Reports

(a) Section 3213 authorizes the use of the frank to mail seeds and agricultural reports emanating from the Department of Agriculture in response to a specific request of a Senator.

(b) Former members of Congress are entitled to use the frank to mail seeds and such agricultural reports in response to a specific request during the 90-day period immediately following the

expiration of their term of office.

20. Correction of Mailing Lists

Instructions to a local postmaster to make any necessary changes to the name and address

may be printed on the front of an envelope or self-mailer used in a frankable mailing.

APPENDIX F 451

(a) Postal Service Regulation 122.5 states that mailing lists submitted by Members of Congress will be corrected as frequently as requested and that payment for correction of lists submitted

by Members of Congress is made under the official mail reimbursement program.

(b) A Senator may include instructions, on the front of a franked envelope or self-mailer, to

a local postmaster to make any necessary changes to the name and address printed on the franked

envelope or self-mailer, so long as the frank is used, in this instance, in connection with a frankable mailing.

(c) A Senator may not use the mailing list of a private organization in a franked mailing and,

subsequently, provide the organization with information to be used to update its mailing list.

(d) The chairman of a committee or subcommittee of the Senate may use his frank to update

the mailing list of his committee or subcommittee, so long as the mailing list is compiled from

specific requests and is used only to mail official publications, such as transcripts of hearings, reports, news releases and announcements. For this purpose, the chairman may also use his frank

to send return address cards to addresses on the list.

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CHAPTER THREE

MASS MAILING

1. Definition of a Mass Mailing

As defined by Pub.L. 103–283 effective Oct. 1, 1994, the term ‘‘mass mailing’’ means, with

respect to a session of Congress, any mailing of news-letters or other pieces of mail with substantially identical content (whether such mail is deposited singly or in bulk, or at the same time or

different times), totaling more than 500 pieces in that session, except that such term does not include any mailing:

(i) of matter in direct response to a communication from a person to whom the matter is

mailed;

(ii) to other Members of Congress, or to Federal, State or local government officials;

(iii) of a news release to the communications media;

(iv) of a town meeting notice, but no such mailing may be made fewer than 60 days immediately before the date of any primary election or general election (whether regular, special, or

runoff) for any Federal, State, or local office in which a Member of the Senate is a candidate

for election; or

(v) of a Federal publication or other item that is provided by the Senate to all Senators or

made available by the Senate for purchase by all Senators from official funds specifically for distribution.

Any mailing which meets any one of the five exceptions above is not a ‘‘mass mailing’’ and

is therefore not subject to the moratorium or registration requirements, which are described in paragraphs 4, 5, and 6, of this chapter.

A franked mailing made specifically and solely in response to, and mailed not more than 120

days after the date of receipt of, a written request, inquiry, or expression of opinion or concern

from the person to whom it is addressed is not a mass mailing. (S. Res. 212 Section 13 Nov.

19, 1989)

No mailing to Government officials is a mass mailing. Government officials (whether Federal,

State, or local) include any elected or appointed official of the United States and of any state or

territory or a political subdivision thereof.

No mailing of news releases to the communications media is a mass mailing.

2. Definition of a Candidate

The term ‘‘candidate’’ means an individual who seeks nomination for election, or election,

to Federal office, and for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election-

(a) if such individual has received contributions aggregating in excess of $5,000 or has made

expenditures aggregating in excess of $5,000; or

(b) if such individual has given his or her consent to another person to receive contributions

or make expenditures on behalf of such individual- and if such person has received such contributions aggregating in excess of $5,000 or has made such expenditures aggregating in excess of

$5,000. (2 U.S.C. Section 431(2))

3. Definition of a Primary or General Election

A primary or general election includes a party convention or caucus which has authority to

nominate a candidate for the Senate and any subsequent primary or general election.

APPENDIX F 453

4. Registration of Mass Mailing

Paragraph 3 of Rule 40 provides that a Senator must register each mass mailing which he

or she sends under the frank. Section 323 of the Legislative Branch Appropriations Act, 1991,

requires that such registration be quarterly. Registration is made quarterly by filing with the Secretary of the Senate a copy of the mailing attached to a form providing a description of the group

or groups of persons to whom the mass mailing was sent. For example, quarterly registrations

of mailings sent during each quarter are due by the close of the quarter, but may be made at

the time each mass mailing is sent.

5. Moratorium on the Use of the Frank for Mass Mailings

Section 3210(a)(6)(C) provides that: ‘‘No Member of the Senate may mail any mass mailings

as franked mail if such mass mailing is mailed fewer than 60 days immediately before the date

of any primary election or general election (whether regular, special, or runoff) for any national,

State or local office in which such Member is a candidate for election.’’ The moratorium also

applies to the period before any convention which has the authority to nominate a candidate for

the Senate.

The moratorium does not apply to a Senator who does not face any convention, primary, or

general election opposition. The moratorium does apply, however, if there is even the possibility

under applicable State law of any opposition, including the possibility of write-in opposition. (See

Senate Rule 40.1, as amended by S. Res. 224, June 21, 1994)

The moratorium also does not apply to the mass mailings of a Senate committee which are

mailed under the frank of the chairman of the committee. Such mass mailings must relate only

to the committee’s business and may not focus on a Member in a manner that reasonably could

be deemed to be personal or partisan in nature.

6. Restrictions on the Use of Mass Mailing by All Senators Prior to a Biennial Federal General Election

Regulations promulgated by the Committee on Rules and Administration provide that no Senator shall send any mass mailing during the period beginning 60 days before the date of a biennial

Federal election. These Regulations are reprinted in their entirety (see page 27).

7. Restrictions on the Use of Mass Mailing by Candidates Prior to a Primary, General, or Special Election

A Senator who is a candidate may not send any franked mass mailing unless such mailing

is delivered to a postal facility at least 60 days prior to the date of a primary, its equivalent, or

a general, or special election. Similarly, Senators subject to the 60-day moratorium regarding the

biennial Federal election shall not send any franked mass mailing unless such mailing is delivered

to a postal facility at least 60 days prior to the date of the election. In computing this 60-day

period, the date of the election is excluded and the time of mailing is determined by the time

of delivery to a postal facility. Thus, delivery before midnight of the 60th day before the election

would be in compliance with the moratorium. For example, if the primary election in which a

Senator is a candidate is September 10th, the 60th day before the election is July 12th.

In order to comply with this limitation, each Member has the responsibility to ascertain from

the Service Department how far in advance of the deadline he or she must submit such material

so that it can be prepared, printed and delivered to the Postal Service in compliance with the law.

8. Preparation of Mass Mailing Material

All mass mailing must be prepared and mailed by the Senate Service Department, which shall

provide the Financial Clerk a monthly certification of each Senator’s mass mailing costs, to be

454 SENATE ETHICS MANUAL

debited from the Senator’s Official Personnel and Office Expense Account. Mass mailings charged

against the Account may not exceed $50,000 in any fiscal year. Funds in a Senator’s Official Mail

Account may not be used for the postal costs of mass mailings. [Pub.L. 103–283]

Section 3210(f) provides that:

‘‘Any mass mailing which otherwise would be permitted to be mailed as franked mail

under this section shall not be so mailed unless the cost of preparing and printing the mail

matter is paid exclusively from funds appropriated by Congress, except that an otherwise

frankable mass mailing may contain, as an enclosure or supplement, any public service material which is purely instructional or informational in nature, and which in content is frankable

under this section.’’

Rule 40 (Franking Privilege and Radio and Television Studios)

Paragraph 2 provides:

‘‘A Senator shall use only official funds of the Senate, including his official Senate allowances, to purchase paper, to print, or to prepare any mass mailing material which is to be sent

out under the frank.’’

The franked mail statute, 39 U.S.C. 3210(a)(5)(D) authorizes the Select Committee to prescribe regulations as the Committee considers necessary and proper for Members of the Senate

to conform to the provisions of the statute. Under this authority the Select Committee is presently

engaged in an effort to properly define the parameters of the term ‘‘frankable public service material.’’ Pending a definitive opinion by the Committee in defining this term, Members and staff

are cautioned to employ a narrow reading of the term ‘‘frankable public service material’’ and

where a question exists as to public service material which is intended to be used in a frankable

mass mailing, the Committee will provide guidance on a case-by-case basis for Members before

the mailing is sent out under the franked mail statute.

9. Use of Senate Computer Facilities

Paragraph 5 of Senate Rule 40 provides:

‘‘The Senate computer facilities shall not be used (a) to store, maintain, or otherwise

process any lists of names and addresses identifying the individuals included in such lists as

campaign workers or contributors, as members of a political party, or by any other partisan

political designation, (b) to produce computer printouts except as authorized by user guides

approved by the Committee on Rules and Administration, or (c) to produce mailing labels

for mass mailings, or computer tapes and discs, for use other than in service facilities maintained and operated by the Senate or under contract to the Senate. The Committee on Rules

and Administration shall prescribe such regulations not inconsistent with the purposes of this

paragraph as it determines necessary to carry out such purposes.’’

10. Prior Review of Mass Mailings

At the request of a Senator or employee, the Select Committee will examine the proposed

mail matter and render an opinion as to whether the mailing is in compliance with section 3210

and the regulations promulgated thereunder.

APPENDIX F 455

CHAPTER FOUR

VIOLATIONS

1. Proper Use of Frank

The use of the frank as authorized by law is a privilege which Senators and others must view

as a personal responsibility and which must be vigilantly safeguarded against abuse. Mail sent

under the frank is not free; its cost is paid by the Congress and is ultimately paid by the taxpayer.

Every citizen has the right, therefore, to expect that a Senator will use his frank only in the proper

exercise of the duties of his office.

2. Responsibility of Senators’ Assistants

The actual determination of whether or not to send a particular piece of mail under a Senator’s

frank probably will be made by the Senator’s assistants who prepare mail for delivery. An improper use of the frank by an assistant, ranging from an inadvertent mistake on a single letter

to a willful abuse of the frank in connection with a mass mailing, will be imputed to the employing Senator under most circumstances. To help avoid these violations of the franking law, Senators

should assure that their assistants know what kinds of mail are frankable by providing for the

training and supervision of their employees and their familiarization with these Regulations.

3. Complaints

The Select Committee on Ethics is assigned the responsibility of receiving and disposing of

complaints that a violation of the use of the mailing frank has occurred or is about to occur. The

Committee is empowered, if it determines there is a reasonable justification for the complaint, to

conduct an investigation of the matter, afford due process, conduct a hearing, issue a decision,

take appropriate action, and recommend disciplinary measures.

4. Restitution for Mistake

A mistake exists when a Senator, or an assistant to a Senator acting within the scope of his

employment, improperly or unlawfully uses the frank through ignorance or forgetfulness.

A Senator who uses the frank mistakenly may offer to pay for the cost of the mailing. Such

an offer will be viewed as an act of good faith by the Select Committee on Ethics in deciding

whether to conduct further proceedings in case of a complaint against the Senator because of the

mailing. The Committee may then direct that the payment be made.

Section 3216(d) of Title 39, United States Code provides, ‘‘Money collected for matter improperly mailed under the franking privilege shall be deposited as miscellaneous receipts in the

general fund of the Treasury.’’

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APPENDIX

LAWS RELATING TO THE MAILING

OF CONGRESSIONAL FRANKED MAIL

Section 3210. Franked mail transmitted by the Vice President, Members of Congress, and congressional officials

(a)(1) It is the policy of the Congress that the privilege of sending mail as franked mail shall

be established under this section in order to assist and expedite the conduct of the official business,

activities, and duties of the Congress of the United States.

(2) It is the intent of the Congress that such official business, activities, and duties cover all

matters which directly or indirectly pertain to the legislative process or to any congressional representative functions generally, or to the functioning, working or operating of the Congress and

the performance of official duties in connection therewith, and shall include, but not be limited

to, the conveying of information to the public, and the requesting of the views of the public, or

the views and information of other authority of government, as a guide or a means of assistance

in the performance of those functions.

(3) It is the intent of the Congress that mail matter which is frankable specifically includes,

but is not limited to-

(A) mail matter to any person and to all agencies and officials of Federal, State, and local

governments regarding programs, decisions, and other related matters of public concerns or

public service, including any matter relating to actions of a past or current Congress;

(B) the usual and customary congressional newsletter or press release which may deal

with such matters as the impact of laws and decisions on State and local governments and

individual citizens; reports on public and official actions taken by Members of Congress; and

discussions of proposed or pending legislation or governmental actions and the positions of

Members of Congress on, and arguments for or against, such matters;

(C) the usual and customary congressional questionnaire seeking public opinion on any

law, pending or proposed legislation, public issue, or subject;

(D) mail matter dispatched by a Member of Congress between his Washington office and

any congressional district offices, or between his district offices;

(E) mail matter directed by one Member of Congress to another Member of Congress

or to representatives of the legislative bodies of State and local governments;

(F) mail matter expressing congratulations to a person who has achieved some public distinction;

(G) mail matter, including general mass mailings, which consists of Federal laws, Federal

regulations, other Federal publications, publications purchased with Federal funds, or publications containing items of general information;

(H) mail matter which consists of voter registration or election information or assistance

prepared and mailed in a non-partisan manner;

(I) mail matter which constitutes or includes a biography or autobiography of any Member

of, or Member-elect to, Congress or any biographical or autobiographical material concerning

such Member or Member-elect or the spouse or other members of the family of such Member

or Member-elect, and which is so mailed as a part of a Federal publication or in response

to a specific request therefor and is not included for publicity purposes in a newsletter or other

general mass mailing of the Member or Member-elect under the franking privilege; or

(J) mail matter which contains a picture, sketch, or other likeness of any Member or

Member-elect and which is so mailed as a part of a Federal publication or in response to

APPENDIX F 457

a specific request therefor and when contained in a newsletter or other general mass mailing

of any Member or Member-elect, is not of such size, or does not occur with such frequency

in the mail matter concerned, as to lead to the conclusion that the purpose of such picture,

sketch, or likeness is to advertise the Member or Member-elect rather than to illustrate accompanying text.

(4) It is the intent of the Congress that the franking privilege under this section shall not permit, and may not be used for, the transmission through the mails as franked mail of matter which

in its nature is purely personal to the sender or to any other person and is unrelated to the official

business, activities, and duties of the public officials covered by subsection (b)(1) of this section.

(5) It is the intent of the Congress that a Member of or Member-elect to Congress may not

mail as franked mail-

(A) mail matter which constitutes or includes any article, account, sketch, narration, or

other text laudatory and complimentary of any Member of, or Member-elect to, Congress on

a purely personal or political basis rather than on the basis of performance of official duties

as a Member or on the basis of activities as a Member-elect;

(B) mail matter which constitutes or includes-

(i) greetings from the spouse or other members of the family of such Member or Memberelect unless it is a brief reference in otherwise frankable mail;

(ii) reports of how or when such Member or Member-elect, or the spouse or any other

member of the family of such Member or Member-elect, spends time other than in the

performance of, or in connection with, the legislative, representative, and other official

functions of such Member or the activities of such Member-elect as a Member-elect; or

(iii) any card expressing holiday greetings from such Member or Member-elect; or

(C) mail matter which specifically solicits political support for the sender or any other

person or any political party, or a vote or financial assistance for any candidate for any public

office.

The House Commission on Congressional Mailing Standards and the Select Committee on Standards and Conduct of the Senate shall prescribe for their respective Houses such rules and regulations and shall take such other action, as the Commission or Committee considers necessary and

proper for the Members and Members-elect to conform to the provisions of this clause and applicable rules and regulations. Such rules and regulations shall include, but not be limited to, provisions prescribing the time within which such mailings shall be mailed at or delivered to any postal

facility to attain compliance with this clause and the time when such mailings shall be deemed

to have been so mailed or delivered and such compliance attained.

(6)(A) It is the intent of Congress that a Member of, or Member-elect to,Congress may not

mail any mass mailing as franked mail-

(i) if the mass mailing is postmarked fewer than 60 days immediately before the date

of any primary election or general election (whether regular, special, or runoff) in which the

Member is a candidate for reelection; or

(ii) in the case of a Member of, or Member-elect to, the House who is a candidate for

any other public office, if the mass mailing-

(I) is prepared for delivery within any portion of the jurisdiction of or the area covered

by the public office which is outside the area constituting the congressional district from

which the Member or Member-elect was elected; or

(II) is mailed fewer than 60 days immediately before the date of any primary election

or general election (whether regular, special, or runoff) in which the Member or Memberelect is a candidate for any other public office.

458 SENATE ETHICS MANUAL

(B) Any mass mailing which is mailed by the chairman of any organization referred to in

the last sentence of section 3215 of this title which relates to the normal and regular business

of the organization may be mailed without regard to the provisions of this paragraph.

(C) No Member of the Senate may mail any mass mailing as franked mail if such mass mailing is mailed fewer than 60 days immediately before the date of any primary election or general

election (whether regular, special, or runoff) for any national, State, or local office in which such

Member is a candidate for election.

(D) The Select Committee on Ethics of the Senate and the House Commission on Congressional Mailing Standards shall prescribe for their respective House rules and regulations, and shall

take other action as the Committee or the Commission considers necessary and proper for Members and Members-elect to comply with the provisions of this paragraph and applicable rules and

regulations. The rules and regulations shall include provisions prescribing the time within which

mailings shall be mailed at or delivered to any postal facility and the time when the mailings shall

be deemed to have been mailed or delivered to comply with the provisions of this paragraph.

For purposes of this section, ‘‘. . . the term mass mailing’ means, with respect to a session

of Congress, a mailing of more than five hundred newsletters or other pieces of mail with substantially identical content (whether such mail is deposited singly or in bulk, or at the same time or

different times), but does not include any mailing’’(i) of matter in direct response to a communication from a person to whom the matter is mailed; (ii) to other Members of Congress, or to Federal,

State, or local government officials; or (iii) of a news release to the communications media; or

(iv) of a town meeting notice, but no such mailing may be made fewer than 60 days immediately

before the date of any primary election or general election (whether regular, special, or runoff)

for any Federal, State, or local office in which a Member of the Senate is a candidate for election;

or (v) of a Federal publication or other item that is provided by the Senate to all Senators or

made available by the Senate for purchase by all Senators from official funds specifically for distribution.’’ With respect to (i), a franked mailing made specifically and solely in response to, and

mailed not more than 120 days after the date of receipt of a written request, inquiry, or expression

of opinion or concern from the person to whom it is addressed is not a mass mailing. S. Res.

212 (101st Congress).

(b)(1) The Vice President, each Member of or Member-elect to Congress, the Secretary of

the Senate, the Sergeant at Arms of the Senate, each of the elected officers of the House of Representatives (other than a Member of the House), the Legislative Counsels of the House of Representatives, and the Senate, the Law Revision Counsel of the House of Representatives, and the

Senate Legal Counsel, may send, as franked mail, matter relating to their official business, activities, and duties, as intended by Congress to be mailable as franked mail under subsection (a)(2)

and (3) of this section.

(2) If a vacancy occurs in the Office of the Secretary of the Senate, the Sergeant at Arms

of the Senate, an elected officer of the House of Representatives (other than a Member of the

House), the Legislative Counsel of the House of Representatives or the Senate, the Law Revision

Counsel of the House of Representatives, or the Senate Legal Counsel, any authorized person may

exercise the franking privilege in the officer’s name during the period of vacancy.

(3) The Vice President, each Member of Congress, the Secretary of the Senate, the Sergeant

at Arms of the Senate, and each of the elected officers of the House (other than a Member of

the House), during the 90-day period immediately following the date on which they leave office,

may send, as franked mail, matter on official business relating to the closing of their respective

offices. The House Commission on Congressional Mailing Standards and the Select Committee

on Standards and Conduct of the Senate shall prescribe for their respective Houses such rules and

regulations, and shall take such other action as the Commission or Committee considers necessary

and proper to carry out the provisions of this paragraph.

APPENDIX F 459

(c) Franked mail may be in any form appropriate for mail matter, including, but not limited

to, correspondence, newsletters, questionnaires, recordings, facsimiles, reprints, and reproductions.

Franked mail shall not include matter which is intended by Congress to be nonmailable as franked

mail under subsection (a)(4) and (5) of this section.

(d)(1) A Member of the Congress may mail franked mail with a simplified form of address

for delivery-

(A) within that area constituting the congressional district or State from which he was

elected; and

(B) with respect to a Member of the House of Representatives on and after the date on

which the proposed redistricting of congressional districts in his State by legislative or judicial

proceedings is initially completed (whether or not the redistricting is actually in effect), within

any additional area of each congressional district proposed or established in such redistricting

and containing all or part of the area constituting the congressional district from which he

was elected, unless or until the congressional district so proposed or established is changed

by legislative or judicial proceedings.

(2) A Member-elect to the Congress may mail franked mail with a simplified form of address

for delivery within that area constituting the congressional district or State from which he was

elected.

(3) A Delegate, Delegate-elect, Resident Commissioner, or Resident Commissioner-elect to the

House of Representatives may mail franked mail with a simplified form of address for delivery

within the area from which he was elected.

(4) Any franked mail which is mailed under this subsection shall be mailed at the equivalent

rate of postage which assures that the mail will be sent by the most economical means practicable.

(5) The Senate Committee on Rules and Administration and the House Commission on congressional Mailing Standards shall prescribe for their respective Houses rules and regulations governing any franked mail which is mailed under this subsection and shall by regulation limit the

number of such mailings allowed under this subsection.

(6)(A) Any Member of, or Member-elect to, the House of Representatives entitled to make

any mailing as franked mail under this subsection shall, before making any mailing, submit a sample or description of the mail matter involved to the House Commission on Congressional Mailing

Standards for an advisory opinion as to whether the proposed mailing is in compliance with the

provisions of this subsection.

(B) The Senate Select Committee on Ethics may require any Member of, or Member-elect

to, the Senate entitled to make any mailings as franked mail under this subsection to submit a

sample or description of the mail matter to the Committee for an advisory opinion as to whether

the proposed mailing is in compliance with the provisions of this subsection.

(7) Franked mail mailed with a simplified form of address under this subsection-

(A) shall be prepared as directed by the Postal Service; and

(B) may be delivered to-

(i) each box holder or family on a rural or star route;

(ii) each post office box holder; and

(iii) each stop or box on a city carrier route.

(8) For the purposes of this subsection, a congressional district includes, in the case of a Representative at Large or Representative at Large-elect, the State from which he was elected.

(e) The frankability of mail matter shall be determined under the provisions of this section

by the type and content of the mail sent, or to be sent.

460 SENATE ETHICS MANUAL

(f) Any mass mailing which otherwise would be permitted to be mailed as franked mail under

this section shall not be so mailed unless the cost of preparing and printing the mail matter is

paid exclusively from funds appropriated by Congress, except that an otherwise frankable mass

mailing may contain, as an enclosure or supplement, any public service material which is purely

instructional or informational in nature, and which in content is frankable under this section.

(g) Notwithstanding any other provision of Federal, State, or local law, or any regulation

thereunder, the equivalent amount of postage determined under section 3216 of this title on franked

mail mailed under the frank of the Vice President or a Member of Congress, and the cost of preparing or printing such frankable matter for such mailing under the frank, shall not be considered

as a contribution to, or an expenditure by, the Vice President or a Member of Congress for the

purpose of determining any limitation on expenditures or contributions with respect to any such

official, imposed by any Federal, State, or local law or regulation, in connection with any campaign of such official for election to any Federal office.

(h) All mass mailing material must be prepared and mailed by the Senate Service Department,

which shall provide the Financial Clerk a monthly certification of each Senator’s mass mailing

costs, to be debited from the Senator’s Official Personnel and Office Expense Account. Mass mailings charged against the Account may not exceed $50,000 in any fiscal year. Funds in a Senator’s

Official Mail Account may not be used for the postal costs of mass mailings. [Pub.L. 103–283]

§3211. Public documents

The Vice President, Members of Congress, the Secretary of the Senate, the Sergeant at Arms

of the Senate, each of the elected officers of the House of Representatives (other than a Member

of the House) during the 90-day period immediately following the expiration of their respective

terms of office, may send and receive as franked mail all public documents printed by order of

Congress.

§ 3212. Congressional Record under frank of Members of Congress

(a) Members of Congress may send the Congressional Record as franked mail.

(b) Members of Congress may send, as franked mail, any part of, or reprint of any part of,

the Congressional Record, including speeches or reports contained therein, if such matter is mailable as franked mail under section 3210 of this title.

§ 3213. Seeds and reports from Department of Agriculture

Seeds and agriculture reports emanating from the Department of Agriculture may be mailed-

(1) as penalty mail by the Secretary of Agriculture; and

(2) during the 90-day period immediately following the expiration of their terms of office,

as franked mail by Members of Congress.

* * * * * * *

§ 3215. Lending or permitting use of frank unlawful

A person entitled to use a frank may not lend it or permit its use by any committee, organization, or association, or permit its use by any person for the benefit or use of any committee, organization, or association. This section does not apply to any standing, select, special, or joint committee, or subcommittee thereof, or commission, of the Senate, House of Representatives, or Congress, composed of Members of Congress, or to the Democratic caucus or the Republican conference of the House of Representatives or of the Senate.

APPENDIX F 461

1The Senate limits expenditures for franked mail costs by imposing allocations on its Members and officers. Contact the Rules Committee, Ext. 4–6686, for information on current allocation figures.

§ 3216. Reimbursement for franked mailings 1

(a) The equivalent of-

(1) postage on, and fees and charges in connection with, mail matter sent through the

mails-

(A) under the franking privilege (other than under section 3219 of this title), by the Vice

President, Members of and Members-elect to Congress, the Secretary of the Senate, the

Sergeant at Arms of the Senate, each of the elected officers of the House of Representatives (other than a Member of the House), the Legislative Counsels of the House of Representatives and the Senate, the Law Revision Counsel and the Senate Legal Counsel; and

(B) by the survivors of a Member of Congress under section 3218 of this title; and

* * * * * * *

§ 3218. Franked mail for survivors of Members of Congress

Upon the death of a Member during his term of office, the surviving spouse of such Member

(or, if there is no surviving spouse, a member of the immediate family of the Member designated

by the Secretary of the Senate or the Clerk of the House of Representatives, as appropriate, in

accordance with rules and procedures established by the Secretary or the Clerk) may send, for

a period not to exceed 180 days after his death, as franked mail, nonpolitical correspondence relating to the death of the Member.

* * * * * * *

462 SENATE ETHICS MANUAL

REGULATIONS GOVERNING OFFICIAL MAIL

Adopted by the

Committee on Rules and Administration

United States Senate

October 30, 1997Amended on September 30, 1998

DEFINITIONS

Sec. 1. As used in these regulations --

(a) the term ‘‘election fiscal year’’ means a Federal fiscal year in which regular biennial general elections of Senators are held;

(b) the term ‘‘final printing and mailing clearance’’ means an approval of a blue line, color

key, or other page proof giving final authorization to print and mail material submitted by a Senate

office to the Sergeant at Arms;

(c) the term ‘‘franked mail’’ as defined in section 3201(4) of title 39, United States Code

means:

‘‘...mail which is transmitted in the mail under a frank.’’

(d) the term ‘‘mass mailing’’ as defined in section 3210(a)(6)(E) of title 39, United States

Code, as amended by the Legislative Branch Appropriations Act, 1995 (P.L. 103-283) means:

‘‘....with respect to a session of Congress, a mailing of more than five hundred newsletters

or other pieces of mail with substantially identical content (whether such mail is deposited

singly or in bulk, or at the same time or different times), but does not include any mailing-

-(i) of matter in direct response to a communication from a person to whom the matter is

mailed; (ii) to other Members of Congress, or to Federal, State, or local government officials,

or (iii) of a news release to the communications media, or (iv) of a town meeting notice,

but no such mailing may be made fewer than 60 days immediately before the date of any

primary election or general election (whether regular, special, or runoff) for any Federal, State,

or local office in which a Member of the Senate is a candidate for election, or (v) of a Federal

publication or other item that is provided by the Senate to all Senators or made available by

the Senate for purchase by all Senators from official funds specifically for distribution.’’ With

respect to (i), a franked mailing made specifically and solely in response to, and mailed not

more than 120 days after the date of receipt of a written request, inquiry, or expression of

opinion or concern from the person to whom it is addressed is not a mass mailing. S.Res.212

(101st Congress)

(e) the term ‘‘name addressed mail’’ means any mailing sent to named individuals at specific

addresses;

(f) the term ‘‘newsletter’’ means any professionally photo-composed mailing consisting of

documents which set forth, in textual and graphic form (or both), factual information and commentary on prospective, pending, or past issues of public policy. Newsletters may not be mailed

in franked envelopes;

(g) the term ‘‘non-election fiscal year’’ means a Federal fiscal year other than an election

fiscal year;

(h) the term ‘‘postal patron mail’’ means any mailing prepared and mailed pursuant to section

3210(d) of title 39, United States Code;

(i) the term ‘‘official mail costs’’ means the equivalent of--

(1) postage on, and fees and charges in connection with, mail matter sent through the

mail under the franking privilege; and

APPENDIX F 463

(2) the portions of the fees and charges paid for handling and delivery by the Postal Service of mailgrams considered as franked mail under section 3219 of title 39, United States

Code; and

(3) all other official mail other than the franking privileged as defined in section

58(a)(3)(B) and (C) of title 2, United States Code.

(j) the term ‘‘opinion survey’’ means any assemblage of mass mailings and related individual

mailings, including, but not limited to, survey questionnaires, pre-survey letters, response forms,

follow-up letters, and instructions that are sent to a sample group of individuals for the purpose

of obtaining a reliable estimate of the opinion of the population from which the survey sample

is drawn and are processed in accordance with the ‘‘Guidelines for Opinion Surveys’’ issued by

the Committee on Rules and Administration in September 1979;

(k) the term ‘‘Senate office’’ means the Vice President of the United States, a United States

Senator, a United States Senator-elect, a committee of the Senate, the Joint Committee on Printing,

the Joint Economic Committee, an officer of the Senate, or an office of the Senate authorized

by section 3210(b)(1) of title 39, United States Code, to send franked mail;

(l) the term ‘‘town meeting notice’’ means any mailing which relates solely to a notice of

the time and place at which a Senator or a member or members of his or her staff will be available

to meet constituents regarding legislative issues or problems with Federal programs. The notice

may include a short description as to the subject matter or purpose of the town meeting and an

official photo in the banner of the notice;

(m) the term ‘‘prepared’’ means all necessary preparation prior to mailing; including the production of additional copies of a mailing, the folding of the mailing, and inserting of the mail

into envelopes.

POSTAL ALLOCATIONS

FOR NON-ELECTION FISCAL YEARS

Sec. 2. (a) With respect to a non-election fiscal year, as soon as practicable after the enactment of the appropriation for Senate franked mail costs for such year, the Committee on Rules

and Administration shall determine the following amounts:

(1) the amount that has been appropriated for franked mail costs of the Senate for the

non-election fiscal year;

(2) the amount necessary to be reserved for contingencies, which shall not exceed 10 percent of the amount determined pursuant to paragraph (1);

(3) the amount necessary for franked mail costs of Senate offices other than Senators for

the non-election fiscal year;

(4) the amount necessary for each Senator to send one State-wide postal patron mailing,

based on total addresses in each state;

(5) 1/3 of the amount appropriated in (2)(a)(1), after deducting the amount necessary for

contingencies and offices other than Senators;

(6) the amount which may be available for allocation to Senators, when the amount in

(2)(a)(5) and amounts in (2)(a)(2) and (2)(a)(3) are subtracted from the amount appropriated

for official mail paragraph (2)(a)(1);

(7) the factor to be used to equitably distribute remaining appropriated funds, determined

by dividing the amount in paragraph (2)(a)(6) by the sum of the amounts in paragraph

(2)(a)(4);

464 SENATE ETHICS MANUAL

(b) As soon as practicable after making the determination described in section (a), the Committee on Rules and Administration shall make the following allocations:

(1) the allocation to Senate offices (other than a Senator’s personal office) for the nonelection fiscal year;

(2) the allocation for contingencies;

(3) the allocation to each Senator--

(A) to include the amount determined in subsection (2)(a)(5), divided by 100, establishing the base amount for each office plus,

(B) the amount to be allocated to each Member, determined by multiplying each

amount in (2)(a)(4) by the prorated percentage determined in subsection (2)(a)(7).

POSTAL ALLOCATIONS FOR

ELECTION FISCAL YEARS

Sec. 3 (a) With respect to an election fiscal year, as soon as practicable after the enactment

of the appropriation for Senate franked mail costs for such year, the Committee on Rules and Administration shall determine the following amounts:

(1) the amount that has been appropriated for franked mail costs of the Senate for the

election fiscal year;

(2) the amount necessary to be reserved for contingencies, which shall not exceed 10 percent of the amount determined in paragraph (3)(a)(1);

(3) for the election fiscal year, the amount necessary for franked mail costs of Senate

offices other than Senators and Senators-elect;

(4) one-third of the amount appropriated in (3)(a)(1), after deducting the amount necessary

for contingencies and offices other than Senators;

(5) the amount which may be available for allocation to Senators, for an election fiscal

year, when the amount in (3)(a)(4), and the amounts in (3)(a)(2), and (3)(a)(3) are subtracted

from the amount appropriated for official mail in paragraph (3)(a)(1);

(6) for the period beginning on the date immediately following the date of the general

election and ending January 3 of the election fiscal year, 10 percent of two-twelfths of the

full funding amount necessary for each Senator-elect to send one State-wide postal patron

mailing;

(7) for the period January 3 through September 30 of the election fiscal year, 75 percent

of the full funding amount necessary for each newly-elected Senator to send one State-wide

postal patron mailing;

(8) for the period October 1 through January 3 of the election fiscal year, 25 percent of

the full funding amount necessary for each Senator whose service as a Senator will end on

January 3 of the election fiscal year to send one State-wide postal patron mailing;

(9) for the period January 3 through April 3 of the election fiscal year, 10 percent of

25 percent of the full funding amount necessary for each Senator whose service as a Senator

will end on January 3 of the election fiscal year to send one State-wide postal patron mailing;

(10) for the election fiscal year, the full funding amounts necessary for each Senator,

other than those Senators whose terms of service as Senators will begin or end on January

3 of the election fiscal year, to send one State-wide postal patron mailing;

APPENDIX F 465

(11) the factor to be used to equitably distribute remaining election fiscal year appropriated funds, determined by dividing the amount in paragraph (3)(a)(5) by the sum of the

amounts in paragraph (3)(a)(6) through (3)(a)(10).

(b) As soon as practicable after making the determination described in subsection (b), the

Committee on Rules and Administration shall make the following allocations:

(1) the allocation to a Senate office (other than a Senator or Senator-elect) for the election

fiscal year;

(2) the allocation for contingencies;

(3) the allocation to each Senator--

(A) to include the amount determined in subsection (3)(a)(4), divided by 100, establishing

the base amount for each office (3/4 of the individual amount to Senators-elect, and 1/

4 to departing Senators), plus,

(B) the amount determined in (3)(a)(5), allocated;

(i) to each Senator referred to in (3)(a)(6), adjusted by the amount determined

in (3)(a)(11);

(ii) to each Senator referred to in (3)(a)(7), adjusted by the amount determined

in (3)(a)(11);

(iii) to each Senator referred to in (3)(a)(8), adjusted by the amount determined

in (3)(a)(11);

(iv) to each Senator referred to in (3)(a)(9), adjusted by the amount determined

in (3)(a)(11);

(v) to each Senator referred to in (3)(a)(10), adjusted by the amount determined

in (3)(a)(11).

USES OF FUNDS RESERVED FOR CONTINGENCIES

Sec. 4. The amounts described in sections 2(a)(2) and 3(a)(2) shall be available for distribution

by the Committee on Rules and Administration only for---

(a) providing a Senator appointed to complete the term of a Senator who dies or retires

with an allocation for the fiscal year in which such appointment is effective;

(b) providing the Secretary of the Senate with sufficient postage to send franked mail as

provided for by section 3218 of title 39, United States Code; and

(c) reimbursing a Senator for a charge to the Senator’s allocation for franked mail costs

when the charge is the result of an error on the part of an office of the Sergeant at Arms.

COST DETERMINATION AND REPORTING

Franked Mail, Mass Mail, Mail Prepared Pursuant to Section 9

of these Regulations

Sec. 5. (a)(1) The postage on all franked mail shall be determined by the Senate Customer

Service Records Section and reported to the U. S. Postal Service. State offices must advise their

D.C. offices of their franked mail counts on a monthly basis. By the 5th of each month, the D.C.

offices will inform the Service Department of these counts. Timely and accurate reports are required to ensure proper accounting of franked mail.

466 SENATE ETHICS MANUAL

(2) Not more than 250 extra copies of a mass mailing printed with the frank may be returned

to an office for distribution in reception rooms and at town meetings. Additional copies, printed

without the frank, may be requested on a separate work order.

(3) No mass mailing and no mailing prepared pursuant to section 9 shall be mailed until the

density analysis, indicating the total number of pieces to be mailed and the locations to which

they will be mailed, has been approved by the office for which the mail is being sent. Such approval shall be signified by signing a statement of approval on the density analysis sheet. The

approved copy of the density analysis shall be retained by the Customer Service Records Section

with the work order and a copy of the mail matter.

(4) Before processing a request for a mass mailing submitted by a Member office, the Sergeant at Arms shall determine: (A) the postage cost of the mailing, and (B) that the postage cost

of the request, when added to costs incurred or encumbered for mass mailings by that Member

in the fiscal year, will not exceed the amount ($50,000) allowed for mass mailings by each Member each fiscal year (P.L. 103-283). If the requested mailing exceeds that amount, the Sergeant

at Arms shall notify the Member and take no further action on the request.

Record Keeping

(b) (1) The Sergeant at Arms shall maintain records of the following information for each

Senate office to which postage allocations are applicable:

(A) the amount of the allocation for franked mail costs;

(B) each amount of franked mail cost determined pursuant to this section;

(C) the amount of the allocation for franked mail costs for such Senate office which remains after the amount described in paragraph (B) is added to or subtracted from, as appropriate, the amount described in paragraph (A).

(2) The Sergeant at Arms shall provide offices with monthly reports on the status of their

postal allocations.

(3) The Sergeant at Arms shall provide to each Member a monthly report detailing the postage

costs associated with franked mailings and mass mailings, and shall provide the office of the Financial Clerk of the Senate a monthly certification of franked mailing and mass mailing costs for

each Member. The Financial Clerk of the Senate shall debit these costs from the respective expense accounts for such franked mailing and mass mailing, and issue a check in payment.

Publication of Mass Mail Costs

(c) Two weeks after the close of each calendar quarter, or as soon as practicable thereafter,

the Sergeant at Arms and Doorkeeper of the Senate shall send to each Senate office a statement

of the cost of postage and paper and of the other operating expenses incurred as a result of mass

mailings processed for such Senate office during such quarter. The statement shall provide information regarding the cost of postage and paper and other costs, and shall distinguish the costs

attributable to mass mailings. The statement shall also include the total cost per capita in the State.

A compilation of all such statements shall be sent to the Senate Committee on Rules and Administration. A summary tabulation of such information shall be published quarterly in the Congressional Record and included in the semiannual Report of the Secretary of the Senate. Such summary

tabulation shall set forth for each Senate office the following information: the Senate office’s

name, the total number of pieces of mass mail mailed during the quarter, the total cost of such

mail, and, in the case of Senators, the cost of such mail divided by the total population of the

State from which the Senator was elected, and the total number of pieces of mass mail divided

APPENDIX F 467

by the total population of the State from which the Senator was elected, and the allocation made

to each Senator from the appropriation for official mail expenses.

PREPARATION OF OFFICIAL MAIL

Sec. 6. (a) All mass mailings shall be submitted to and mailed by the Sergeant at Arms and

shall be charged against the Senator’s Official Personnel Office Expense Account, pursuant to the

Legislative Branch Appropriations Act, 1995 (P.L. 103-283). All mailings are to be presented to

the Sergeant at Arms for accountability prior to mailing. Such mailings shall not exceed total postage cost of $50,000 in any fiscal year, and must adhere to all regulations pertaining to mass mailings.

Two Sheet Limit

(b) A mass mailing by a Senator shall not exceed 2 sheets of legal size paper (or their equivalent), including any enclosure that---

(1) is prepared by or for the Senator who makes the mailing; or

(2) contains information concerning, expresses the views of, or otherwise relates to the

Senator who makes the mailing.

Taxpayer Expense Notice

(c) Each mass mailing by a Senate office shall contain the following notice in a prominent

place on the bottom of the cover page of the document: ‘‘PREPARED, PUBLISHED, AND

MAILED AT TAXPAYER EXPENSE.’’ The notice shall be printed in a type size not smaller

than seven point.

Mail to be Mailed under the Frank

(d) All mass mailings by Senate offices shall be mailed under the frank.

Mail to be Mailed by the Sergeant at Arms

(e) The following mail matter shall be mailed through the Sergeant at Arms --

(1) all mass mailings by Senate offices, whether printed on the Sergeant at Arms high

speed laser printers or elsewhere;

(2) all mail prepared pursuant to section 9 of these regulations;

Town Meeting Notices

(3) Town meeting notices shall be processed as postal patron mail, unless sending name

addressed mail to selected persons in the area served by the town meeting would be more

economical, or the town meeting is to be on a subject or subjects that would not be of interest

to all the people who would receive a postal patron mailing. Town meeting notices may not

be mailed in franked envelopes;

(4) All franked and mass mail sent from D.C. offices, including flats and parcels, and

constituent response mail and comparable mail prepared through an offices’ Office Automation System shall be picked up by the Senate Post Office and delivered by the Senate Post

Office to the Sergeant at Arms;

(5) Constituent response mail mailed through the Sergeant at Arms shall be sorted and

bundled by zip code and endorsed with the most economical rate unless otherwise specified

468 SENATE ETHICS MANUAL

by the Senator for whom the mail is mailed. Senators may specify that such mail be endorsed

‘‘AUTO PRESORT’’ or ‘‘BLK. RATE.’’

Survey Questionnaires

(f) Mass mailings, other than opinion surveys, shall not contain franked response cards or

forms. Any mass mailing containing a questionnaire shall contain instructions to the recipients on

how to properly return their responses.

Rates and Endorsements

(g) (1) Name addressed mass mailings shall be sent at the lowest postal rate for which the

mail qualifies, unless the office for whom the mail is being mailed directs, in writing, that it be

mailed at a higher rate.

(2) Bulk rate mail will have no endorsement other than ‘‘BLK RATE’’ or ‘‘AUTO

PRESORT.’’

Pictures of Missing Children

(h) (1) Unless (A) a Senator, committee chairman, or other office head for whom a mass mailing or automated mail system mailing is being sent directs that such picture and information not

be printed on a particular mailing; or (B) the Sergeant at Arms finds, with respect to any or all

of the mass mailings in a period of time, that the printing of such pictures and information will

significantly slow the processing of the mail, all mass-mailings that are mailed as self-mailers shall

bear on the address panel a picture of and information about a missing child in accordance with

this subsection, and all letters prepared, folded, inserted in envelopes, and mailed by the Sergeant

at Arms shall be inserted in window envelopes bearing the picture of and information about the

same missing child whose picture appears on mass mailings during the same work-week. No other

official mail of the Senate shall be used for the mass dissemination of pictures of, and information

about, missing children.

(2) Only pictures of, and information about, missing children that are provided by the National

Center for Missing and Exploited Children (hereinafter in this section referred to as the Center)

are to be printed on mass mail and envelopes subject to this section. The Sergeant at Arms shall

be the liaison with the Center for obtaining such pictures and information.

(3) The Sergeant at Arms and the Director of the Center or his or her designee shall make

arrangements for the Sergeant at Arms to periodically receive photographs of and information

about a missing child for each State from which the Center has such photographs and information.

(4) The pictures of, and information about, missing children shall be made part of the printing

plates prepared for mailings subject to this section. To the greatest extent possible, mail prepared

for a Senator shall bear the photograph of, and information about, a missing child from the Senator’s State.

(5) Whenever information is received from the Center that a child has been found whose picture and information are currently being printed on Senate mail, the Sergeant at Arms shall determine whether or not printing plates currently in use or awaiting use shall be discarded and new

plates prepared. Whenever information is received from the Center that a child has been found

whose picture and information were previously printed on Senate mail, the Sergeant at Arms shall

notify offices on whose mail such picture and information were printed, and such offices shall

destroy any extra copies of such mail that are on hand.

APPENDIX F 469

(6) The Sergeant at Arms shall transmit to the Center at the end of each month a list of the

mass mailings and automated mail system letters mailed that month indicating for each mailing

the State to which mailed, the number of pieces, and the child whose picture appeared thereon.

ORANGE BAG MAIL AND EXPRESS MAIL

Orange Bag Mail

Sec. 7. (a)Orange bags are used by offices only for intra-office mail from Washington,D.C. to State offices. These bags are charged at priority rates. (Orange bags used by

State offices are only for transportation of franked mail to the Post Office).Express Mail

(b) The frank may not be used for express mail. Expenses for non-frankable official mail,

such as Express mail, Overseas mail, Registered and Certified mail, etc., may be defrayed from

any source of funds only as provided by subsections (d) and (I) of section 311 of the Legislative

Branch Appropriations Act of 1991, Public Law 101-520. Offices are advised that the Senate Post

Office has created a system through which offices may present express mail, together with an authorization card similar to the cards used to purchase office supplies from the Keeper of Stationery,

and have the cost of the express mail charged to the office’s official office expense account. Offices choosing to use express mail originating outside Washington may establish commercial accounts with the U.S. Postal Service instead of pre-paying each mailing.

RESTRICTION ON THE USE OF MASS MAIL AND TOWN MEETING NOTICES

PRIOR TO A PRIMARY OR BIENNIAL FEDERAL GENERAL ELECTION

Sec. 8. (a) NO SENATOR MAY SEND mass mailings during the period beginning 60 days

before the date of any biennial Federal general election. The 60-day pre-election moratorium on

mass mailings does not apply to a committee when such mass mailings are mailed under the frank

of the Chairman and relate to the normal and regular business of the committee.

Use of mass mail by Senators who are candidates is further restricted (unless the Senator’s

candidacy has been certified as uncontested pursuant to procedures of the Committee on Rules

and Administration);

(b) Mass mailings may not be sent fewer than 60 days immediately before the date of any

primary or general election (whether regular, special, or runoff) for any Federal, State, or local

office in which a Member of the Senate is a candidate for election, unless the candidacy of the

Senator in such elections is uncontested.

(c) Town meeting notices in excess of 500 notices per town meeting may not be sent fewer

than 60 days immediately before the date of any primary or general election (whether regular,

special, or runoff) for any Federal, State, or local office in which a Member of the Senate is a

candidate for election. There is no exception for uncontested candidacies (P.L. 103-283).

(d) Solicitation forms provided by a Member through a mass mailing which are intended to

be mailed back by constituents, may not be responded to during the 60 days immediately before

the date of any primary or general election (whether regular, special, or runoff) for any Federal,

State, or local office in which a Member of the Senate is a candidate for election.

RESPONSES TO ORGANIZED MAIL CAMPAIGNS

Sec. 9. (a) Whenever a Senator determines that he or she is the recipient of mail generated

by an organized mail campaign and that the resources of his or her office are not sufficient to

enter the names and addresses into the offices’ mail management system, the Senator may use

470 SENATE ETHICS MANUAL

the services of commercial vendors under contracts approved by the Committee on Rules and Administration. This service converts names and addresses to machine readable media which then

may be added to such Senator’s mail management system. The Sergeant at Arms has the responsibility for the processing and administrative support for this service.

(b) Expenses for work performed in accordance with this section shall be paid from funds

from a Senator’s Official Personnel and Office Expense Account and shall be reported to offices

with their quarterly mass mail cost reports required by section 5(c).

CHANGE OF ADDRESS PROGRAMS

Sec. 10. Offices may have names and address on their mail files processed through the National Change of Address (NCOA) Program. A Senator may use any of the vendors certified by

the U. S. Postal Service to provide NCOA service. A current list of vendors can be obtained from

the Senate Computer Center. Processing costs charged by the NCOA vendor and transportation

costs charged by the delivery service shall be billed to, and paid by, such Senator from his or

her Official Personnel and Office Expense Account.

(a) Such Senator shall request the Senate Computer Center to prepare his or her mail file for

shipment to the vendor selected by the Senator, using the delivery service selected by the Senator.

A Sergeant at Arms ‘‘Request for Assistance’’ form shall be used for this purpose, and shall include a statement in the following format:

Processing and shipping costs will be paid by the

Office of Senator —————————————————(insert name).

Bills are to be submitted to —————————————(insert address).

———————————————————————————————

Senator’s Signature

(b) The Senate Computer Center will provide the Senator with information about the mail file

that will assist the Senator in estimating processing costs that will be incurred. Sergeant at Arms

should be contacted for other options regarding change of address.

(c) The Computer Center will prepare the Senator’s file for processing, and arrange for transportation, using the delivery service designated by the Senator. The NCOA vendor and the delivery

service will be provided with copies of the ‘‘Request for Assistance’’ for their use in billing the

Senator for their services. On receipt of the corrected file from the NCOA vendor, the Senate

Computer Center will restore it to the Senate Mail File System or provide the updated file to the

appropriate vendor.

PAPER AND ENVELOPE ALLOWANCES

Sec. 12. (a)(1)(A) Each year the Secretary of the Senate shall provide each Senator with the

greater of---

(i) one and one-third sheets of blank paper per adult constituent, as reported by the Bureau of the Census; or

(ii) 1,800,000 sheets of blank paper.

(B) each year the Secretary of the Senate shall provide each Senator with letterhead paper

and envelopes in the greater of the following quantities:

(i) 100 sheets and 100 envelopes per 1,000 constituents of the Senator; or

APPENDIX F 471

(ii) 180,000 sheets and 180,000 envelopes.

(2) a portion of a Senator’s allowance for paper that is unused at the end of a year may

be used during the following year but lapses at the end of that year and shall not be available

for use thereafter.

(3) a portion of a Senator’s allowance for paper that is unused at the time the Senator

resigns, retires, or otherwise leaves office shall lapse and shall not be available for use thereafter.

(4) No portion of the paper allowance of a Senator may be given or otherwise transferred

to another Senate office.

(b) (1) Each year the Secretary of the Senate shall provide each office set forth below with

180,000 sheets of blank paper, 180,000 sheets of letterhead paper, and 180,000 envelopes:

(A) each standing committee of the Senate;

(B) each select committee of the Senate;

(C) each special committee of the Senate;

(D) each impeachment trial committee of the Senate

(2) A portion of an allowance for paper made pursuant to paragraph (1) that is unused

at the end of a year shall not be available for use thereafter.

(c) (1) The Secretary of the Senate shall provide each of the following offices with such quantities of paper and envelopes as may be necessary for the performance of its official duties:

(A) the Joint Committee on the Library;

(B) the Joint Committee on Printing;

(C) the Joint Committee on Taxation;

(D) the Joint Economic Committee;

(E) the President of the Senate;

(F) the President pro tempore of the Senate;

(G) the Majority Leader of the Senate;

(H) the Assistant Majority Leader of the Senate;

(I) the Secretary for the Majority;

(J) the Minority Leader of the Senate;

(K) the Assistant Minority Leader of the Senate;

(L) the Secretary for the Minority;

(M) the Republican Conference;

(N) the Republican Policy Committee;

(O) the Republican Steering Committee;

(P) the Democratic Conference;

(Q) the Democratic Policy Committee;

(R) the Democratic Steering Committee;

(S) the Architect of the Capitol, including the Senate Restaurants and the Superintendent

of the Senate Office Buildings;

(T) the Attending Physician;

(U) the Capitol Police;

(V) the Chaplain of the Senate;

(W) the Secretary of the Senate, including all offices reporting thereto;

472 SENATE ETHICS MANUAL

(X) the Senate Legislative Counsel;

(Y) the Senate Legal Counsel;

(Z) the Senate Sergeant at Arms, including all offices reporting thereto;

(AA) the Congressional Budget Office;

(BB) the Democratic Senatorial Campaign Committee;

(CC) the Republican Senatorial Campaign Committee;

(DD) the Senate Employees’ Federal Credit Union;

(EE) the Senate Day Care Center;

(FF) the Senate Defense Liaison Office;

(HH) the Senate Press Galleries;.

(2) Except as provided in paragraph (3), no portion of an allowance for paper made pursuant to paragraph (1) may be given or otherwise transferred to a Senator or an office named

in subsection (b)(1).

(3) Paper from the allowance of the Sergeant at Arms may be used to reprint matter previously printed and charged to the allowance of another office if---

(A) an error in the previously printed matter was caused by the Sergeant at Arms; and

(B) (i) the previously printed matter was destroyed prior to distribution; or

(ii) the previously printed matter was distributed before the discovery of the error, and

the reprinted matter is noted as a corrected version of such previously printed matter.

(d) For the purposes of this section---

(1) blank paper means paper that is 8.5 inches by 11 inches or 8.5 inches by 14 inches;

and

(2) letterhead paper means paper that is 8.5 inches by 11 inches.

(e) For the purposes of this section, the term ‘‘year’’ means the period beginning on January

3 of a calendar year and ending on January 2 of the following year. Paper for any mass mailing

the work order for which is submitted prior to the close of business of the Sergeant at Arms on

January 2 of any year shall be charged to the allotment for such year ending on January 2 (or,

in the case of Senators, to any remaining balance from the previous year) if the office for which

the mass mailing is being prepared gives the Sergeant at Arms, by its close of business the following February 14, a final printing and mailing clearance. If final clearance for printing is not

given by close of business on February 14, the work order for such work shall be canceled and,

if the office still desires to have the work completed, a new work order shall be prepared and

the paper charged to the year in which such work order is dated (or, in the case of Senators,

to any remaining balance from the previous year). Costs incurred in processing a work order that

is canceled because the final clearance for printing was not received prior to close of business

February 14 shall be reported in the cost report for the quarter ending March 31.

PRINTING OF LETTERHEAD

STATIONERY AND ENVELOPES

Sec. 13. (a) The return address on envelopes to be used with franked mail must bear the ninedigit zip code of the office sending the mail.

(b) Envelopes with Senators’ return addresses and nine-digit zip codes shall not be used for

mail from committees. Envelopes with committee return addresses and nine-digit zip codes shall

not be used for mail from Senators’ offices.

APPENDIX F 473

(c) Senators’ letterhead stationery and envelope allowances may be used for personal office

letterhead stationery and envelopes and committee letterhead stationery. Such allowances shall not

be used for committee envelopes.

(d) Paper used for the following purposes shall not be charged to an office’s paper allowance-

(1) mailings that relate solely to a notice of appearance or scheduled itinerary of a Senator

in the State represented by the Senator and which is mailed to the part of the State where

such appearance is to occur;

(2) ‘‘Dear friend’’ letters or post cards processed in accordance with section 9 of these

regulations;

(3) non-personalized Senate letterhead stationery used for automated mail system letters

printed on the Sergeant at Arms high speed laser printers.

(e) Committee envelopes may bear only the frank of the chairman or the ranking minority

member, the name and address of the full committee, including the nine-digit zip code of the committee, and ‘‘Official Business’’ or ‘‘Public Document.’’

(474)

APPENDIX G

(475)

(476)

477

WHO MUST FILE UNDER AMENDED SENATE RULE 35

2. (a)(1) A reimbursement (including payment in kind) to a Member, officer, or employee

from an individual other than a registered lobbyist or agent of a foreign principal for necessary

transportation, lodging and related expenses for travel to a meeting, speaking engagement, fact

finding trip or similar event in connection with the duties of the Member, officer, or employee

as an officeholder shall be deemed to be a reimbursement to the Senate and not a gift prohibited

by this rule, if the Member, officer, or employee-

(A) in the case of an employee, receives advance authorization, from the Member or officer under whose direct supervision the employee works, to accept reimbursement; and

(B) discloses the expenses reimbursed or to be reimbursed and the authorization to the

Secretary of the Senate within 30 days after the travel is completed.

(2) For purposes of clause (1) events, the activities of which are substantially recreational in

nature, shall not be considered to be in connection with the duties of a Member, officer, or employee as an officeholder.

(b) Each advance authorization to accept reimbursement shall be signed by the Member or

officer under whose direct supervision the employee works and shall include-

(1) the name of the employee;

(2) the name of the person who will make the reimbursement;

(3) the time, place, and purpose of the travel; and

(4) a determination that the travel is in connection with the duties of the employee as

an officeholder and would not create the appearance that the employee is using public office

for private gain.

(c) Each disclosure made under subparagraph (a)(1) of expenses reimbursed or to be reimbursed shall be signed by the Member or officer (in the case of travel by that Member or officer)

or by the Member or officer under whose direct supervision the employee works (in the case of

travel by an employee) and shall include-

(l) a good faith estimate of total transportation expenses reimbursed or to be reimbursed;

(2) a good faith estimate of total lodging expenses reimbursed or to be reimbursed;

(3) a good faith estimate of total meal experts reimbursed or to be reimbursed;

(4) a good faith estimate of the total of other expenses reimbursed or to be reimbursed;

(5) a determination that all such expenses are necessary transportation, lodging, and related expenses as defined in this paragraph; and

(6) in the case of a reimbursement to a Member or officer, a determination that the travel

was in connection with the duties of the Member or officer as an officeholder and would not

create the appearance that the Member or officer is using public office for private gain.

‘‘(d) For the purposes of this paragraph, the term ‘‘necessary transportation, lodging, and related expenses’’-

(1) includes reasonable expenses that are necessary for travel for a period not exceeding

3 days exclusive of travel time within the United States or 7 days exclusive of travel time

outside of the United States unless approved in advance by the Select Committee on Ethics;

478 SENATE ETHICS MANUAL

(2) is limited to reasonable expenditures for transportation, lodging, conference fees and

materials, and food and refreshments, including reimbursement for necessary transportation,

whether or not such transportation occurs within the periods described in clause (1);

(3) does not include expenditures for recreational activities, nor does it include entertainment other than that provided to all attendees as an integral part of the event, except for activities or entertainment otherwise permissible under this rule; and

(4) may include travel expenses incurred on behalf of either the spouse or a child of the

Member, officer, or employee, subject to a determination signed by the Member or officer

(or in the case of an employee, the Member or officer under whose direct supervision the

employee works) that the attendance of the spouse or child is appropriate to assist in the representation of the Senate.

(e) The Secretary of the Senate shall make available to the public all advance authorizations

and disclosures of reimbursement filed pursuant to subparagraph (a) as soon as possible after they

are received.

APPENDIX G 479

January 24, 2002

Dear Colleague:

The Foreign Gifts and Decorations Act, 5 U.S.C. 7342, requires that no later than January 31 of each year, the

Select Committee on Ethics shall compile a list of certain gifts which Members, officers, or employees of the

Senate, or a spouse or dependent of any such person, have received from a foreign government or a multinational

organization during the preceding calendar year. The Committee must send this list to the Secretary of State, who

then is required to publish the data in the Federal Register.

Gifts which must be listed are (1) tangible gifts with a value in excess of $100, and (2) travel or expenses of

travel with a value in excess of $100, taking place entirely outside of the United States excluding travel or

expenses of travel accepted under 108A of the Mutual Educational Cultural Exchange Act of 1961. The Foreign

Gifts and Decorations Act places an obligation upon recipients of such gifts to report certain details to the Ethics

Committee. The information which is required for each tangible gift is as follows:

(A) the name and position of the recipient;

(B) a brief description of the gift and the circumstances justifying acceptance;

(C) the identity of the foreign government and the name and position of the individual, if known, who

presented the gift;

(D) the date of acceptance of the gift;

(E) the estimated value in the United States of the gift at the time of acceptance; and

(F) disposition and current location of the gift.

Information which is required for gifts of travel or expenses of travel is as follows:

(A) the name and position of the recipient;

(B) a brief description of the gift and the circumstances justifying acceptance;

(C) the identity, if known, of the foreign government and the name and position of the individual who

presented the gift; and

(D) the date travel took place.

Tangible gifts, deemed to have been accepted on behalf of the United States, are required to be deposited with

the Secretary of the Senate within 60 days of acceptance. The recipient must make the report to the Ethics

Committee at the time of deposit. Reports concerning gifts of travel or expenses of travel must be made to the

Ethics Committee within 30 days of acceptance. If you or an officer or employee whom you supervise, or the

spouse or dependent of any of these persons, have accepted any gifts described above during calendar year 2001,

and if you have not already reported the acceptance and required details in writing to the Ethics Committee, we

request that each individual recipient complete a copy of the attached form and return it to the Ethics Committee

no later than January 15, 2002.

The attached form should also be used to report details of foreign gifts, pursuant to the statute, as they might be

received during calendar year 2002. For your guidance in the future, the Foreign Gifts and Decorations Act does

not permit acceptance from a foreign government of tangible gifts of more than $100 in value unless accepted on

behalf of the United States Government and the gift is deposited with the government within 60 days, nor does it

permit acceptance of travel or expenses of travel (transportation, food, lodging, and entertainment) with a value of

more than $100 unless the travel takes place entirely outside of the United States, or is approved by the USIA

under Section 108A of the Mutual Educational and Cultural Exchange Act of 1961.

Sincerely,

Harry Reid Pat Roberts

Chairman Vice Chairman

(480)

(481)

(482)

APPENDIX H

483

Mr. Smith. Mr. President, consistent with the provisions of Senate Resolution 321, adopted

October 3, 1996, I ask that the Regulations Regarding Disclosure of Certain Pro Bono

Legal Service, adopted by the Senate Select Committee on Ethics on February 13, 1997, be printed

in the Congressional Record of the 105th Congress.

SENATE SELECT COMMITTEE ON ETHICS REGULATIONS

On October 3, 1996, the Senate agreed to S. Res. 321, which provides:

Resolved, That (a) notwithstanding the provisions of the Standing Rules of the Senate or Senate Resolution 508, adopted by the Senate on September 4, 1980, pro bono legal services provided

to a Member of the Senate with respect to a civil action challenging the validity of a Federal

statute that expressly authorizes a Member to file an action -

(1) shall not be deemed a gift to the Member;

(2) shall not be deemed to be a contribution to the office account of the Member; and

(3) shall not require the establishment of a legal expense trust fund.

(b) The Select Committee on Ethics shall establish regulations providing for the public disclosure of information relating to pro bono legal services performed as authorized by this resolution.

The following regulations, adopted on and effective as of February 13, 1997, are promulgated

by the Select Committee on Ethics pursuant to S. Res. 321, and are applicable to Members of

the United States Senate during the time of their service in or to the Senate.

REGULATIONS REGARDING

DISCLOSURE

OF

CERTAIN PRO BONO LEGAL SERVICES

A Member who accepts pro bono legal services with respect to a civil action challenging the

validity of a Federal statute as authorized by S. Res. 32I shall submit a report to the Office of

Public Records of the Secretary of the Senate and the Senate Select Committee on Ethics within

30 days of the date on which an attorney or law firm begins performance of the pro bono services

for the Member (or, for such services provided to a Member prior to the publication of these regulations, within 30 days of the publication of these regulations in the Congressional Record).

All reports filed pursuant to these Regulations shall include the following information:

(1) a description of the nature of the civil action, including the Federal statute to be challenged;

(2) the caption of the case and the cause number, as well as the court in which the action

pending, if the civil action has been filed in court; and

(3) the name and address of each attorney who performed pro bono services for the Member

with respect to the civil action, as well as the name and address of the firm, if any, with which

the attorney is affiliated.

All documents filed pursuant to these regulations shall be available at the Office of Public

Records of the Secretary of the Senate for public inspection and copying within two business days

following receipt of the documents by that office.

484 SENATE ETHICS MANUAL

Any person requesting a copy of such documents shall be required to pay a reasonable fee

to cover the cost of reproduction.

REMINDER REGARDING AMICUS CURIAE

The disclosure requirements for accepting certain pro bono legal services pursuant to S. Res.

321 do NOT affect the ability of a Member to accept pro bono legal services to appear in a legal

proceeding by amicus curiae brief without necessity of a Legal Expense Trust Fund and without

disclosure or reporting. See, Committee Interpretative Ruling 442 (4/15/92), and Committee Regulations Governing Trust Funds (9/30/8O, amended 8/10/88).

(485)

APPENDIX I

486

Regulations Governing Trust Funds

to Defray Legal Expenses Incurred by

Members, Officers and Employees of the United States Senate

Adopted:September 30, 1980

Amended:August 10, 1988

Select Committee on Ethics

United States Senate

Table of Contents

Foreword

Chapter One - ‘‘Purposes, Uses and Establishment of Legal Expense Trust Funds’’

A. Who May Establish a Legal Expense Trust Fund

B. Circumstances Under Which a Legal Expense Trust Fund May Be Established.

C. Expenses Which May Be Defrayed by a Legal Expense Trust Fund

D. How a Legal Expense Trust Fund is Established

E. Number of Legal Expense Trust Funds

Chapter Two - ‘‘Administration of a Legal Expense Trust Fund’’

A. Who May Serve as Trustee

B. Duties of the Trustee

Chapter Three - ‘‘Contributions’’

A. Who May Contribute

B. How Much May Be Contributed

C. Definition of First Fiscal Year of the Trust Fund

D. Segregation of Funds

Chapter Four - ‘‘Disclosure and Reporting Requirements’’

A. When Reports Must Be Filed

B. What Must Be Reported

C. Public Availability of Documents

Chapter Five - ‘‘Termination’’

A. When Shall a Legal Expense Trust Fund Be Terminated

B. Distribution of Unexpended Funds Upon Termination

C. Final Reports

Chapter Six - ‘‘Enforcement’’

A. Audits

B. Who Performs the Audit

C. Involuntary Termination

D. Sanctions

Chapter Seven - ‘‘Retroactivity’’

Chapter Eight - ‘‘Interpretative Rulings’’

APPENDIX I 487

Foreword

From time to time, Members, officers, and employees of the United States Senate may find

it necessary to defend themselves against charges (or in a rare case, to initiate a civil lawsuit)

in proceedings which would not have arisen but for their positions, or by virtue of their service

in or to the United States Senate. The expenses of such investigative, civil, criminal, or other legal

proceeding could be substantial, thereby necessitating that Members, officers, and employees avail

themselves of contributions from friends, supporters, constituents, and others to defray legal expenses which would not have been incurred but for their positions, or by virtue of their service

in or to the United States Senate. Provisions of the Standing Rules of the Senate, however, may

place Members, officers, and employees at a disadvantage in this regard relative to their fellow

citizens, should the latter choose to raise funds to defray legal expenses which they incur. Rule

35 places limitations on gifts which may be received by Members, officers, and employees, and

on the circumstances under which such gifts may be received. In addition, Rule 38 prohibits, under

certain circumstances, the establishment by Members of ‘‘unofficial office accounts’’ for the purpose of defraying allowable but otherwise unreimbursed expenses incurred in connection with official duties.

To eliminate any doubt as to the permissibility under Senate Rules of Members, officers, and

employees of the Senate (or their spouses or dependents) accepting funds to defray investigative,

civil, criminal or other legal expenses, the Senate, on September 30, 1980, agreed to S. Res. 508.

Senate Resolution 508 provides:

Nothing in the provisions of the Standing Rules of the Senate shall be construed to limit

contributions to defray investigative, civil, criminal, or other legal expenses of Members, officers, or employees of the Senate relating to their service in the United States Senate, subject

to limitations, regulations, procedures and reporting requirements as shall be promulgated by

the Select Committee on Ethics. Nothing in the provisions of the Standing Rules of the Senate

shall be construed to limit contributions to defray the legal expenses of the spouses or dependents of Members, officers, or employees of the Senate.

These regulations are promulgated by the Select Committee on Ethics pursuant to S. Res. 508,

and are applicable to Members, officers, and employees of the United States Senate during the

time of their service in or to the Senate. These regulations governing legal expense funds do not

apply to the spouse or dependents of any Member, officer, or employee of the Senate; i.e., there

are no limitations on, or regulations prohibiting, the solicitation, receipt, or disbursement of contributions by spouses or dependents from funds established to defray legal expenses incurred on

their own behalf and for their own benefit.

Members, officers, and their staffs are encouraged to familiarize themselves with these regulations. The Committee welcomes comments and recommendations for its consideration in future

revisions of these regulations.

Chapter One

Purposes, Uses and Establishments of Legal Expense Trust Funds

A Member, officer, or employee of the Senate may establish a trust fund which shall be used

to defray legal expenses incurred by the Member, officer, or employee in investigative, civil,

criminal, or other legal proceedings relating to or arising by virtue of his or her service in or

to the United States Senate.

A. Who May Establish a Legal Expense Trust Fund?

Any Member, officer or employee of the Senate may establish a trust fund.

488 SENATE ETHICS MANUAL

B. Circumstances Under Which a Legal Expense Fund May Be Established

A legal expense trust fund may be established in circumstances in which a Member, officer,

or employee incurs or reasonably expects to incur legal expenses in the course of any investigative,

civil, criminal, or other legal proceeding relating to or arising by virtue of his or her service in

or to the Senate.

Funds may be raised to defray the costs of legal proceedings of any nature—including, but

not limited to, a Congressional inquiry or investigation; a criminal investigation or proceedings—

provided that such proceedings relate to or arise by virtue of the service of the Member, officer,

or employee in or to the Senate.

Funds to defray legal expenses may not be established in cases in which the legal expenses

are for purely personal matters, to include—but not be limited to—such matters as tax planning,

personal injury litigation, protection of property rights, divorces, or the probate of an estate. A

trust fund may be established, however, for a Member, officer, or employee to defray legal expenses incurred, either as plaintiff or defendant, in a defamation suit, if it meets the criteria set

forth above.

It should be noted that there may be institutional issues of interest to the Senate involved

in certain of these proceedings. Nothing in these regulations, however, is intended to alter existing

provisions of statutes, case law, or the Standing Rules and Orders of the Senate, which govern

the standing of Members or the Senate to institute legal proceedings affecting the institution, including, but not limited to, their standing to file suit, assert defenses, or raise issues involving

institutional interests of the Senate which may require a Senate Resolution, or in which the office

of Senate Legal Counsel may have responsibility.

Nothing in these regulations shall be construed to require or provide for the establishment of

a legal expense trust fund where a Senate Member, officer, or employee appears in a legal proceeding by amicus curiae brief.

C. Expenses Which May Be Defrayed By a Legal Expense TrustFund

The proceeds of a legal expense trust fund may be used to defray all expenses reasonably

related to the purposes for which the trust fund was established, including, but not limited to, all

expenses reasonably related to legal proceedings as contemplated in subparagraph (B) above; all

reasonably incurred costs of administering the trust fund, including, but not limited to, costs incident to the solicitation of funds; and for the discharge of federal, state, and local tax liabilities,

should any be deemed to exist, which are incurred as a result of the creation, operation, or administration of the trust fund.

D. How a Legal Expense Trust Fund is Established

A legal expense trust fund is established, and contributions may be solicited and received and

disbursements made, upon the filing of a copy of the executed trust agreement with the Committee

and the Office of Public Records of the Secretary of the Senate by the Member, officer, or employee seeking to establish such a fund, along with sworn affidavits by the Member, officer, or

employee seeking to establish the trust fund, and by the trustee thereof.

The trust instrument shall contain the following:

(1) a provision incorporating by reference the provisions of these regulations and Senate Resolution 508 (96th Congress, 2nd Session);

(2) a designation of a trustee who meets the requirements of a trustee set forth in Chapter

Two of these regulations; and

(3) a provision which stipulates the jurisdiction whose laws shall control the interpretation and

enforcement of the terms of the trust.

APPENDIX I 489

The affidavit of the Member, officer, or employee seeking to establish the trust fund must

state:

(1) the nature of the legal proceeding (or proceedings) which necessitate the establishment of

such a trust fund;

(2) that he or she will be bound by the provisions of these regulations and the resolution pursuant to which they are promulgated; and

(3) that although a trustee of the trust fund has been designated, the Member, officer, or employee seeking to establish the trust fund bears ultimate responsibility for the proper administration

of the trust fund.

The affidavit of the trustee must state that he or she has read and understands the provisions

of the regulations governing the establishment, administration, and termination of legal expense

trust funds, and that he or she consents to administer such a trust fund in conformity with these

regulations and the Standing Rules of the Senate.

Upon the filing of the trust instrument and sworn affidavits, the Committee shall review the

trust instrument, affidavits, and any supporting documents or instruments filed therewith to determine whether they conform with the requirements established by these regulations. If defects are

ascertained, the Committee shall bring them to the attention of the Member, officer, or employee

who has established the trust fund and his or her trustee, which parties will then have thirty days

within which to take necessary corrective action.

The Committee shall review the quarterly reports required under Chapter Four hereof, and

shall monitor the activities of the trust fund to ensure continued compliance with the provisions

contained herein. The Committee may, for cause, direct that the trust fund be terminated involuntarily, subject to the provisions of Chapters Five and Six hereof.

All documents required to be filed under this chapter relating to the creation and administration of a legal expense trust fund shall be made a matter of public record in the same manner

as outlined in Chapter Four, Section C.

E. Number of Legal Expense Trust Funds

No Member, officer or employee may establish and/or maintain more than one legal expense

trust fund at any one time.

Chapter Two

Administration of a Legal Expense Trust Fund

A. Who May Serve as Trustee

It is preferable, though not a condition precedent to the establishment of a legal expense trust

fund, that the trustee be, an attorney, an accountant, or a financial institution. The trustee may

not be a Member, officer, or employee of the Senate; a member of the immediate family of the

individual on whose behalf the fund is established; counsel for such individual in the legal proceeding or proceedings necessitating the creation of the trust fund; or a member, partner, associate,

or employee of the firm employing counsel for such individual in the proceeding or proceedings

necessitating the creation of the trust fund.

In addition, no officer or employee of the Senate may solicit, receive, or handle any contributions to a legal expense trust fund established pursuant to these regulations. This prohibition does

not apply, however, to the two assistants to a Senator who have been designated as ‘‘Political

Fund Designees’’ pursuant to the provisions of Rule 41 of the Standing Rules of the Senate.

B. Duties of the Trustee

490 SENATE ETHICS MANUAL

In addition to the duties imposed by any applicable state laws, the trustee shall be responsible

for the receipt of contributions to the trust fund; authorization of expenditures and disbursements

from the trust fund; filing reports as required by Chapter Four hereof; and the performance of

other tasks incident to the administration of the trust fund.

As required by Section D of Chapter One hereof, each trustee shall consent in writing to administer the trust fund in conformity with these regulations and the Standing Rules and Order of

the Senate.

Chapter Three

Contributions

A. Who May Contribute

Any individual, association, partnership or other legal entity may contribute to a legal expense

trust fund established pursuant to these regulations, except for the following:

1. any officer or employee of the United States Senate, or the spouse or dependent thereof,

other than the officer or employee establishing the fund (or his or her spouse or dependent);

2. any corporation or labor organization (as the term ‘‘labor organization’’ is defined in the

Federal Election Campaign Act, 2 U.S.C. section 441b[b][1];

3. any Member’s principal campaign committee;

4. any foreign national (as defined in the Federal Election Campaign Act, 2 U.S.C. section

441[e]).

B. How Much May Be Contributed

Contributions from any one source to a legal expense trust fund, when aggregated, shall not

exceed $10,000 per fiscal year of the trust fund. This limitation shall not apply to the Member,

officer, or employee establishing a trust fund, or any relative (as the term ‘‘relative’’ is defined

in Section 107[2] of Title I of the Ethics in Government Act of 1978, 2 U.S.C. section 707[2])

of such individual.

Subject to the qualifications of this paragraph, the above limitation shall not apply to the provision of pro bono legal representation where the Member, officer or employee, is a defendant

in a legal proceeding. In a legal proceeding where the Member, officer, or employee is not a defendant, pro bono legal representation with a fair market value in excess of the above limitation

may be accepted only where the Committee determines, in its sole discretion, that the limitation

does not apply. Pro bono legal representation with a fair market value in excess of the above limitation may be accepted in a legal proceeding by a defendant (or as permitted by the Committee

in its discretion where the Member, officer, or employee is not a defendant) only from law firms

(or lawyers) approved by the Committee, subject to such conditions as the Committee may prescribe.

Any individual or firm providing pro bono legal services with a fair market value in excess

of the above limitation, and any Senate Member, officer, or employee, accepting such services,

hereby expressly consents and agrees that the individual or firm providing such services may not

lobby the Senate Member, officer, or employee for whom services are provided, during the period

when such services are being provided and for a period of six months after pro bono representation

is terminated. Lobby shall be interpretated in a manner consistent with the meaning given the term

‘‘lobbying’’ in Senate Rule 37110][c]. An individual or firm who may not lobby a Senate Member

may also not lobby persons supervised by the Member as determined by Senate Rule 37(11).

Where a firm is prohibited from lobbying, then all members, associates and employees of the firm

is also prohibited from lobbying.

APPENDIX I 491

C. Definition of First Fiscal Year of the Trust Fund

For the purposes of these regulations, the first fiscal year of a trust fund shall be deemed

to have started on the first day of the calendar quarter following the establishment of the trust

fund. Any contributions received prior to that date shall be deemed to have been received in the

first fiscal quarter of the trust fund.

D. Segregation of Funds

All contributions to a legal expense trust fund must be kept in a separate bank account established therefore. They shall be segregated from, and may not be commingled with, the personal,

political, or official funds of the Member, officer, or employee establishing the trust fund, or the

funds of any other individual or legal entity.

Chapter Four

Disclosure and Reporting Requirements

A. When Reports Must Be Filed

The trustee shall submit a report of the contributions received and expenditures made during

each quarter, as described in paragraph(B)below, to the Office of Public Records of the Secretary

of the Senate and the Senate Select Committee on Ethics no later than 15 days following the last

day of every calendar quarter (March 31, June 30, September 30, December 31) for the duration

of the legal expense trust fund. Should the filing date fall on a Saturday, Sunday, or holiday, the

next succeeding business day shall be deemed the date of the filing.

In the event no contributions are received nor expenditures disbursed during the calendar quarter, the trustee shall file a letter to that effect in lieu of such a report.

B. What Must Be Reported

All reports filed pursuant to this Chapter shall include the name and address of each contributor who has contributed during the calendar quarter and whose contributions during the fiscal

year exceed $25, and the total amount of contributions by such contributor during the calendar

quarter.

Each report shall also include the name and address of each individual or other entity to which

an expenditure from the fund has been made during each calendar quarter, along with a brief description of the nature and the amount of each expenditure.

Any Member, officer, or employee accepting pro bono legal services (pursuant to the terms

of Chapter Three, section B of these regulations) must report with respect to such services: the

name and address of the individual or firm contributing such services; and the fair market value

of those services provided by such individual or firm.

C. Public Availability of Documents

All documents filed pursuant to these regulations shall be available at the Office of Public

Records of the Secretary of the Senate for public inspection and copying within two business days

following receipt of the documents by that office.

Any person requesting a copy of such documents shall be required to pay a reasonable fee

to cover the cost of reproduction.

492 SENATE ETHICS MANUAL

Chapter Five

Termination

A. When Shall a Legal Expense Fund Be Terminated

A legal expense trust fund established pursuant to these regulations may be terminated by any

one of three means:

1. voluntary termination: the Member, officer, or employee who established the trust fund

may direct, for whatever reason, that the trust fund be terminated;

2. automatic termination: by its terms, no later than six months following the completion

of the legal proceedings for which the trust fund was created, unless, upon application and for

good cause shown, the Committee extends the life of the trust fund, in which event the trust fund

would terminate upon the expiration of all extensions; or

3. involuntary termination: the Committee may direct the involuntary termination of the

trust fund pursuant to the provisions of Chapter Six hereof.

For purposes of granting extensions, the Committee would consider as ‘‘good cause’’ the existence of deficits in the trust fund; i.e., outstanding legal expenses which exceed the balance remaining in the trust fund. In such a case, the Committee may grant an extension (or extensions)

for a reasonable time thereafter, during which time funds to make up the deficit may be solicited

and received. Copies of all extensions granted by the Committee shall be forwarded to the Office

of Public Records of the Secretary of the Senate and shall be available for public inspection in

accordance with the provisions of Chapter Four, Section C.

Upon termination of the trust fund, no further contributions may be accepted, nor additional

expenditures be made.

B. Distribution of Unexpended Funds Upon Termination

Funds remaining upon the termination of the fund shall be, within 30 days thereafter, either

donated and distributed to one or more organizations described in section 501(c)(3) of the Internal

Revenue Code of 1954 and made exempt from taxation under section 501(a) thereof, or returned

to contributors to the trust fund on a pro-rata basis.

C. Final Report

Within sixty days of the termination of the trust fund, a final report disclosing the totals of

all contributions and expenditures as described in Chapter Four hereof, and of all distributions as

described in Section B of this Chapter, must be filed by the trustee with the Committee and the

Office of Public Records of the Secretary of the Senate. Upon filing, the report shall be available

for public inspection in accordance with Section C of Chapter Four of these regulations.

Chapter Six

Enforcement

A. Audits

The Committee shall monitor the activities of any legal expense trust fund established pursuant to these regulations, and may direct that an audit be made of such trust fund when, in the

judgment of the Committee, there is reason to believe that the trust fund is being improperly administered, or for other good cause.

B. Who Performs the Audit

APPENDIX I 493

Upon a determination by the Committee that an audit of a trust fund should be made, the

Committee shall select a qualified auditor to examine the records of such trust fund. The expense

of an audit performed at the direction of the Committee shall be borne by the Committee.

C. Involuntary Termination

Upon a finding by the Committee that the trust fund is being improperly administered, or for

other good cause, the Committee may direct that the trust fund be terminated and that the funds

be distributed in accordance with the provisions of Chapter Five hereof.

D. Sanctions

Upon a finding by the Committee that the trust fund has been improperly administered, or

that these regulations have been otherwise violated, the Committee may recommend disciplinary

action (including, but not limited to, in the case of a Member: censure, expulsion, or recommendation to the appropriate party conference regarding such Member’s seniority or positions of responsibility; and, in the case of an officer or employee: censure, suspension or dismissal), after according the individual concerned due notice and opportunity for full hearing.

Chapter Seven

Retroactivity

Nothing in these regulations shall preclude a Member, officer, or employee of the Senate who

remains liable for expenses incurred prior to the enactment of Senate Resolution 508 (96th Congress, 2nd Session) from establishing a legal expense trust fund if otherwise consistent with these

regulations.

Chapter Eight

Interpretative Rulings

Senate Resolution 338, as amended, authorizes the Committee, in its discretion, to issue interpretative rulings explaining and clarifying the application of any law, the Code of Official Conduct, or any rule or regulation of the Senate within its jurisdiction. The Committee may issue such

rulings in the interpretation and clarification of Senate Resolution 508, and these regulations pursuant thereto, in accordance with the procedures set forth in Rule 12 of the Rules of Procedure of

the Committee.

(494)

APPENDIX J

495

POLICY FOR USE OF SENATE ROOMS, THE RUSSELL ROTUNDA and

COURTYARD, THE HART ATRIUM and THE CAPITOL ROTUNDA

The Senate Committee on Rules and Administration has jurisdiction over assignment and use

of space in the Senate Office Buildings, the Senate Wing of the Capitol, and the Courtyard of

the Russell Building. While rooms may be occupied or administered by other offices or committees, they are subject to the Rules Committee policy for the use of Senate rooms.

Senate Rooms

The following regulations have been established for use by all offices in the assignment of

their rooms:

1. Rooms are available only for Senate-related business. Weddings or other events of a

personal nature are not allowed. Requests for the use of any space in the Senate Office Buildings

and the Senate Wing of the Capitol must be made by a Senator or officer of the Senate and must

be specific, i.e., organization using space, type of function, and the agenda.

A request for a Senate room for a public use by a committee, or under the auspices of a

committee, must be made or approved by the chairman of that committee. (If the committee is

a joint committee, the request must be made or approved by the Senator who is chairman or vicechairman of that joint committee.) A use is considered to be ‘‘by a committee’’ or ‘‘under the

auspices of a committee’’ when the announcement, agenda or notice for the use identifies Senate

participants as members of the committee.

All requests for reservations must be followed by an official letter which must include the

date, time, purpose of the function, name of the group who will be using the room, number of

people attending, and a staff contact and telephone number. The letter also must indicate if additional services will be needed and must be received by the Rules Committee within one week

of the date on which the reservation request was made. Requests for reservations are subject

to written approval by the Rules Committee and are not confirmed until written approval

is received by the requesting office.

Requests for a room assigned to a Senator, committee chairman, or officer of the Senate

should be made directly to that individual.

Senate committee hearings and official legislative meetings take precedence over all other

functions, and it may be necessary to cancel or move a function on short notice based on

the legislative schedule of the Senate.

2. Reservations should be made as early as possible, as rooms are assigned on a first-come,

first-served basis. Rooms may not be ‘‘held’’ on a tentative basis. Room reservation information

is available to Senate staff only.

3. To accommodate the room requests of all Senators and committees, no long-term room reservations are permitted, and a constituent group may not request a room more than once in a calendar month.

4. Cancellations should be reported immediately.

5. The Senator sponsoring the function is expected to be in attendance, and is responsible

for any loss of or damage to Senate property, and for any financial obligation incurred. Room

reservations will not be accepted for any group having unpaid bills.

496 SENATE ETHICS MANUAL

6. The group using a room must adhere to the time period scheduled for its use in order to

accommodate other scheduled functions.

Breakfasts are allowed only from 8:00 a.m. until 10:00 a.m., lunches from Noon until 2:00

p.m., and receptions/dinners for a two-hour period after 5:00 p.m. Evening functions must conclude

by 10:00 p.m.

7. Press conferences are permissible if the issues are Senate related. Press conferences related

to political campaign issues are not permissible.

8. The Office of the Superintendent (224–3146) will make arrangements for the set-up of a

room with the sponsoring Senator’s staff or designated constituent contact. At the time the reservation is approved by the Rules Committee, Senate offices should notify their constituent contact

that arrangements for the set-up of the room must be made with the Superintendent’s Office as

soon as possible in order to guarantee the availability of adequate furniture, equipment, and supplies.

9. Any constituent group using audio-visual materials must advise the sponsoring office of

the subject matter in advance.

10. Since rooms are available only for Senate-related business, there is no charge for such

use and there is no charge for set-up of rooms by the Superintendent’s Office. Therefore, no

charge is permitted in connection with the use of Senate space, nor may any charge be assessed for admittance or refreshments in Senate space. No products may be displayed or sold

on the premises. Senate space may NOT be used for any political campaign activity, fundraising (including charitable contributions in lieu of honoraria), commercial, promotional, or

profit-making purpose whatsoever. The Rules Committee, upon written request, may authorize

organizations to arrange for reimbursement from participants for the actual cost of meals through

the Senate Restaurant. Money may not be collected in the Senate Office Buildings, and payment

to the Senate Restaurant must be made by the organization.

11. Awards ceremonies generally are not permitted because they may be construed as promotional. Therefore, a request for an exception to permit an awards ceremony must be included

in the letter requesting the room reservation.

12. No signs or placards displaying a company or group name or logo are permitted.

Banners are strictly prohibited, and no material may be attached to the wails of the rooms.

13. The Senate will not be held responsible for articles brought into the Senate buildings and

grounds for functions and exhibits.

14. No outside caterers are permitted. If food and non-alcoholic beverages are to be provided, the Senate Restaurant Catering Service (224–2363) must supply these refreshments. Alcoholic beverages only may be brought in from outside suppliers if they cannot be furnished by the

Senate Restaurant Catering Service. No food or beverages are permitted in the corridors outside the reserved room. All food and beverages served at a function must be consumed within

the scheduled room.

15. The United States Capitol Police must be furnished with a list of all guests attending functions which continue after 7:00 p.m. in the Senate Wing of the Capitol or the Senate Office Buildings. The list must be in alphabetical order according to the guest’s surname, and must note the

individual’s social security number. The list also must be provided 24 hours in advance. Admittance cannot be guaranteed if the list is not submitted to the Capitol Police within the required time.

16. Music is not permitted before 6:00 p.m. while the Senate is in session or before 5:00

p.m. while in recess.

17. No parking accommodations are provided for guests by the Rules Committee.

APPENDIX J 497

18. The Senator sponsoring the function will be held accountable for enforcement of these

regulations.

Russell Rotunda

1. All requests for the use of the Russell Rotunda must be submitted in writing to the Chairman of the Rules Committee. The letter of request must be signed by the sponsoring Senator.

2. Only educational, cultural, and commemorative exhibits will be permitted. Handouts are

not permitted.

(498)

APPENDIX K

499

COMMITTEE ON

RULES AND ADMINISTRATION

WASHINGTON, DC 20510–6325

November 14, 1996

We very much appreciated receiving your letter containing suggested changes to the Internet

Usage Policy adopted by the Committee on Rules and Administration. On October 3 our staff,

along with staff from the Ethics Committee, met with several members’ staff to discuss this policy

and your proposed changes.

We believe the meeting was very helpful in understanding your objectives as well as explaining the constraints we serve under. Briefly, the Committee is statutorily charged with determining

allowable expenses which can be funded from the contingent fund of the Senate (2 U.S.C. 68).

Absent other authorizing legislation, this statute constrains the Rules Committee from approving

expenses ‘‘. . . for any expense not intimately and directly connected with the routine legislative

business of the Senate . . .’’. (2 U.S.C. 68–2.) This authority forms the basis of Committee’s regulations, policies and decisions, including the Internet Usage Policy issued on July 22.

The meeting also revealed a significant misunderstanding of the Internet policy and the ability

of Senators to use Internet services for official purposes. It became apparent that your staff believed the Committee Internet Usage Policy prohibited links to ‘‘home-state’’ sites. This was not

and is not the intent of the Committee, and we will clarify the language to clearly state that Senators may permit non-governmental links on their home pages (including links to ‘‘home-state’’

sites), provided such links are not made for personal, partisan political, or promotional/commercial

purposes.

Regarding the concern that a Senator might be held responsible for second generation links,

the Rules Committee policy already requires that a Senator include a notification when a link

causes a user to exit the Senator’s home page. For this reason, a Senator obviously cannot be

held responsible for subsequent links beyond that provided by the Senator.

Additionally, the Rules Committee policy already allows a Senator to post a biography on

his or her home page. The Sergeant at Arms is currently authorized to post such biographies on

the default home page of Senators who chose not to maintain their own home page.

Should you continue to believe an amendment to existing statutes is appropriate, we would

move quickly to hold hearings and report out any proposed legislation on this matter.

If we can be of further assistance, please do not hesitate to contact us.

Sincerely,

Wendell H. Ford John Warner

Ranking Member Chairman

500 SENATE ETHICS MANUAL

COMMITTEE ON

RULES AND ADMINISTRATION

WASHINGTON, DC 20510–6325

July 26, 1996

Dear Colleague:

Attached, please find the amended policy for Internet Services for the United States Senate,

which the Ranking Member and I approved on behalf of the Committee on Rules and Administration on July 22, 1996.

The purpose of this policy is to provide guidance to Senate offices concerning their responsibilities in using Internet services provided by the Senate.

Should you have any questions regarding this matter, please contact John McConnell at 4–

2233.

With kind regards, I am

Sincerely,

John Warner

Chairman

Enclosure

Adopted by the Committee on Rules and Administration on July 22, 1996.

U.S. SENATE INTERNET SERVICES USAGE

RULES AND POLICIES

Policy for Internet Services

A. SCOPE AND RESPONSIBILITY

1. Senate Internet Services (‘‘FTP Server, Gopher, World Wide Web and Electronic mail’’)

may only be used for official purposes. The use of Senate Internet Services for personal, promotional, commercial, or partisan political/campaign purposes is prohibited.

2. Members of the Senate, as well as Committee Chairmen and Officers of the Senate may

post to the Internet Servers information files which contain matter relating to their official business, activities, and duties. All other offices must request approval from the Committee on Rules

and Administration before posting material on the Internet Information Servers.

3. It is the responsibility of each Senator, Committee Chairman, Officer of the Senate, or office head to oversee the use of the Internet Services by his or her office and to ensure that the

use of the services is consistent with the requirements established by this policy and applicable

laws and regulations.

APPENDIX K 501

4. Official records, may not be placed on the Internet Servers unless otherwise approved by

the Secretary of the Senate and prepared in accordance with Section 501 of Title 44 of the United

States Code. Such records include, but are not limited to: bills, public laws, committee reports,

and other legislative materials.

B. POSTING OR LINKING TO THE FOLLOWING MATTER IS PROHIBITED

1. Political Matter

a. Matter which specifically solicits political support for the sender or any other person

or political party, or a vote or financial assistance for any candidate for any political office

is prohibited.

b. Matter which mentions a Senator or an employee of a Senator as a candidate for political office, or which constitutes electioneering, or which advocates the election or defeat of

any individuals, or a political party is prohibited.

2. Personal Matter

a. Matter which by its nature is purely personal and is unrelated to the official business

activities and duties of the sender is prohibited.

b. Matter which constitutes or includes any article, account, sketch, narration, or other

text laudatory and complimentary of any Senator on a purely personal or political basis rather

than on the basis of performance of official duties as a Senator is prohibited.

c. Reports of how or when a Senator, the Senator’s spouse, or any other member of the

Senator’s family spends time other than in the performance of, or in connection with, the legislative, representative, and other official functions of such Senator is prohibited.

d. Any transmission expressing holiday greetings from a Senator is prohibited. This prohibition does not preclude an expression of holiday greetings at the commencement or conclusion of an otherwise proper transmission.

3. Promotional Matter

a. The solicitation of funds for any purpose is prohibited.

b. The placement of logos or links used for personal, promotional, commercial, or partisan

political/campaign purposes is prohibited.

C. RESTRICTIONS ON THE USE OF INTERNET SERVICES

1. During the 60 day period immediately preceding the date of any primary or general election

(whether regular, special, or runoff) for any national, state, or local office in which the Senator

is a candidate, no Member may place, update or transmit information using a Senate Internet Server (‘‘FTP Server, Gopher, and World Wide Web), unless the candidacy of the Senator in such

election is uncontested.

2. Electronic mail may not be transmitted by a Member during the 60 day period before the

date of the Member’s primary or general election unless it is in response to a direct inquiry.

3. During the 60 day period immediately before the date of a biennial general Federal election,

no Member may place or update on the Internet Server any matter on behalf of a Senator who

is a candidate for election, unless the candidacy of the Senator in such election is uncontested.

4. If a Member is under the restrictions as defined in subtitle C, paragraph (1), above, the

following statement must appear on the homepage: (‘‘Pursuant to Senate policy this homepage

may not be updated for the 60 day period immediately before the date of a primary or general

502 SENATE ETHICS MANUAL

election’’). The words ‘‘Senate Policy’’ must be hypertext linked to the Internet services policy

on the Senate Homepage.

5. A Senator’s homepage may not refer or be hypertext linked to another Member’s site or

electronic mail address without authorization from that Member.

6. Any Links to Information not located on a Senate Internet Server must be identified as

a link to a non-Senate entity.

(503)

APPENDIX L

504

Rules Committee

Moratoria Statement

January 28, 2002

Dear Senator:

This notice is to remind you that the use of certain Senate allowances and facilities is limited

or prohibited during the 60-day period immediately preceding a primary or general election. Some

of these restrictions apply whether or not you are a candidate. Any Senator whose state law

provides for a method of nomination other than a primary election should contact the Rules Committee staff for guidance (4–6352). The restrictions on the use of the Senate Recording Studio,

mass mailings, Internet services, and mobile offices apply whenever the Senator is a candidate

for any public office. The restrictions on official travel apply only when the Senator is a candidate

for the Senate or other Federal office. Please note that pursuant to a ruling of the Senate Select

Committee on Ethics in September 2001, the use of the radio and television facilities operated

by the Republican Conference and Democratic Policy Committee is also restricted

UNCONTESTED CANDIDACIES

Official travel, mobile office, Senate Recording Studio, Internet services, and mass mailing

restrictions do not apply when the Senator’s candidacy is uncontested. An uncontested candidacy

is established when the Rules Committee receives written certification from the appropriate state

official that the Senator’s candidacy may not be contested under state law. Since the candidacy

of a Senator who is running for re-election from a state which permits write-in votes on election

day without prior registration or other advance qualification by the candidate may be contested,

such a Member is subject to the above restrictions. However, travel expenses may be allowed if

information is submitted to the Rules Committee which establishes that such candidacy was, in

fact, uncontested. Upon receipt of such information, vouchers for travel reimbursements will be

in order for payment.

OFFICIAL TRAVEL

The statutory authority for reimbursing a Senator or members of his or her staff for official

travel expenses [2 U.S.C. 58(e)] from the official personnel and office expense account specifies

that they:

. . . shall not be reimbursed for any travel expenses (other than actual transportation expenses) for any travel occurring during the 60 days immediately before the date of any primary or general election (whether regular, special, or runoff) in which the Senator is a candidate for public office (within the meaning of of section 301(b) of the Federal Election Campaign Act of 1971), unless his candidacy in such election is uncontested.

The only allowable reimbursements to Senators and/or members of their staff for official travel during the time period specified will be for the expense of transportation, i.e. airfares, train

fares, buses, mileage for privately-owned autos, rental autos, taxis, etc. Reimbursements for other

travel related expenses are specifically prohibited.

APPENDIX L 505

MOBILE OFFICES

The statutory authority for a Senator to be reimbursed from the contingent fund of the Senate

for rental payments and operating costs for one mobile office for use in the state he or she represents [2 U.S.C. 59(f)(4)] specifies:

No payment shall be made . . . for rental payments and operating costs of a mobile office

of a Senator which are attributable to or incurred during the 60-day period ending with the

date of any primary or general election (whether regular, special, or runoff) in which that Senator is a candidate for public office, unless his candidacy in such election is uncontested.

RECORDING STUDIO

The use of the Senate Recording Studio by Members who are candidates for election to any

public office is prohibited during the 60-day period by paragraph 6 of Rule XL of the Standing

Rules of the Senate, which states:

(a) The radio and television studios provided by the Senate or by the House of Representatives may not be used by a Senator or an individual who is a candidate for nomination for

election, or election, to the Senate less than 60 days immediately before the date of any primary or general election (whether regular, special or runoff) in which that Senator is a candidate for public office or that individual is a candidate for Senator, unless the candidacy of

the Senator in such election is uncontested.

(b) This paragraph shall not apply if the facilities are to be used at the request of, and

at the expense of, a licensed broadcast organization or an organization exempt from taxation

under section 501(c)(3) of the Internal Revenue Code[.]

Moreover, pursuant to a Senate Select Committee on Ethics ruling of September 27, 2001 the

bona fide ‘‘electronic news release’’ exception, first recognized by the Ethics Committee in 1986,

is permanently withdrawn. Thus, the radio and television facilities operated moratorium in Rule

40.6 in the same manner as the studios located in the Capitol and may not be used during the

pre-election moratorium period.

MASS MAILING

The franking statute [39 U.S.C. 3210(a)(6)] does not permit a Member of Congress to use

the frank for sending mass mailings within the 60-day period before any primary election or general election (whether regular, special, or runoff) in which the Member is a candidate for public

office.

Similarly, Paragraph 1 of Rule XL of the Standing Rules of the Senate states:

A Senator or an individual who is a candidate for nomination for election, or election,

to the Senate may not use the frank for any mass mailing (as defined in section 3210(a)(6)(E)

of title 39, United States Code) if such mass mailing is mailed at or delivered to any postal

facility less than 60 days immediately before the date of any primary or general election

(whether regular, special, or runoff) in which the Senator is a candidate for public office or

the individual is a candidate for Senator, unless the candidacy of the Senator in such election

is uncontested.

Please note that regulations promulgated by this Committee provide that no Senator (whether

or not a candidate, and whether or not that candidacy is uncontested) may send any mass mailing

(which does not include town meeting notices or opinion surveys) during the period beginning

60 days before the date of each biennial Federal general election.

Furthermore, Federal law prohibits the mailing of a town meeting notice by a Senator during

the 60 days immediately before the date of any primary election (whether regular, special, or runVerDate 11-SEP-98 16:51 Jan 17, 2003 Jkt 000000 PO 00000 Frm 00519 Fmt 5222 Sfmt 5222 SMANUAL.021 ETHICS1 PsN: ETHICS1
506 SENATE ETHICS MANUAL

off) for any Federal, State, or local office in which the Senator is a candidate for election (Sec.

6 of Public Law 103-283). There is no exception for uncontested candidacies.

Finally, Committee regulations provide that solicitation forms provided by a Senator through

a mass mailing which are intended to be mailed back by constituents may not be responded to

during the 60 days immediately before the date of any primary or general election (whether regular, special, or runoff) for any Federal, State, or local office in which that Senator is a candidate

for election.

Each Member is responsible for submitting any material for mass mailing to the Senate Service Department far enough in advance of any appropriate deadline so that it can be prepared, printed, and delivered to the Postal Service in compliance with the above limitation(s).

INTERNET SERVICES

The United States Senate Internet Services Usage Rules and Policies (subtitle C, Restrictions

on the Use of Internet Services) restrict the use of Internet services prior to an election as follows:

1. During the 60-day period immediately preceding the date of any primary or general

election (whether regular, special, or runoff) for any national, state, or local office in which

the Senator is a candidate, no Member may place, update or transmit information using a Senate Internet Server (FTP Server, Gopher, and World Wide Web), unless the candidacy of the

Senator in such election is uncontested.

2. Electronic mail may not be transmitted by a Member during the 60-day period before

the date of the Member’s primary or general election unless it is in response to a direct inquiry.

3. During the 60-day period immediately before the date of a biennial general Federal

election, no Member may place or update on the Internet Server any matter on behalf of a

Senator who is a candidate for election, unless the candidacy of the Senator in such election

is uncontested.

4. An uncontested candidacy is established when the Rules Committee receives written

certification from the appropriate state official that the Senator’s candidacy may not be contested under state law. Since the candidacy of a Senator who is running for re-election from

a state which permits write-in votes on elections day without prior registration or other advance qualification by the candidate may be contested, such a Member is subject to the above

restrictions.

5. If a Member is under the restrictions as defined in subtitle C, paragraph (1), above,

the following statement must appear on the homepage: ‘‘Pursuant to Senate policy this homepage may not be updated for the 60-day period immediately before the date of a primary or

general election.’’ The words ‘‘Senate policy’’ must be hypertext linked to the Internet services policy on the Senate Home Page.;

If you have any questions concerning any of the above pre-election restrictions on the use

of certain Senate allowances and facilities, you may contact either of us or have your staff contact

the Rules Committee staff on 4–6352.

Sincerely,

Mitch McConnell Christopher J. Dodd

Chairman Ranking Member

(507)

APPENDIX M

508

SELECTED BIBLIOGRAPHY

I. HISTORY OF SENATE SELECT COMMITTEE ON ETHICS

The Senate Select Committee on Ethics: A Brief History of Its Evolution and Jurisdiction, Mildred Amer, Congressional Research Service, The Library of Congress (March 17,

1993).

History of Congressional Ethics Enforcement, Mildred Amer, Congressional Research

Service, The Library of Congress (February 18, 1993).

Representation and Responsibility, Exploring Legislative Ethics, The History of

Congressional Ethics, Richard Baker, New York, Plenum Press, 1985.

Two periods - 1787 to 1873 and 1951 to 1977 - In the Development of Legal and

Ethical Constraints on the Conduct of Members of the Senate, With Particular Emphasis on Conflicts of Interest and Unwritten Standards of Conduct, Michael Davidson, Senate Legal Counsel, Morgan J. Frankel and Claire M. Sylvia, Assistant Senate Legal Counsel

(March 1991).

Ethics in Government, Paul Douglas, (Cambridge: Harvard University Press, 1952).

Commentaries on the Constitution of the United States, Joseph Story, Vol. II, section

836, (Boston 1833, DeCapo Press Reprint Edition, 1970).

II. SENATE DISCIPLINARY CASES

General

United States Senate Election, Expulsion and Censure Cases 1793–1990, by Anne

M. Butler and Wendy Wolff, U.S. Senate Historical Office, 1995.

Expulsion and Censure Actions Taken by the Full Senate Against Members, Jack

Maskell, Congressional Research Service, The Library of Congress (October 3, 1990, revised September 17, 1993.

Recent Disciplinary Cases Involving Full Senate

Senator Thomas Dodd

Congressional Record. 90th Cong., 1st sess. (See pp. 15421–22, 15663–706, 15735–50, 15773,

15998–16030, 16104–135, 16348–75, 16561–87, 16976–17000, 17005–73.)

Senate Report No. 193. 90th Cong., 1st sess., 1967.

Amer, Mildred. ‘‘History of Congressional Ethics Enforcement.’’ CRS Report for Congress. 93-

239 Gov., February 18, 1993.

Baker, Richard Allan. ‘‘The History of Congressional Ethics.’’ In, Representation and Responsibility: Exploring Legislative Ethics, ed. Bruce Jennings and Daniel Callahan. New York,

1985. (See Chapter 1).

Jennings, Bruce. ‘‘The Institutionalization of Ethics in the U.S. Senate.’’ The Hastings Center Report, 1981.

Senator Herman Talmadge

APPENDIX M 509

United States Congress. Senate. Congressional Record. 96th Cong., 1st sess. (See pp. 27766–94.)

Senate Report No. 96–337. 96th Cong., 1st sess., 1979.

Talmadge, Herman E. and Mark Royden Winchell. Talmadge: A Political Legacy, A Politician’s

Life. Atlanta, 1987.

Senator Harrison Williams

U.S. Congress. Senate. Congressional Record. 97th Cong., 1st sess. (See pp. 19774, 20414, 20556–

57, 21301, 21502, 21622–23, 21881, 22018–19, 27098–99, 27478, 27885, 29219–20.) 2nd sess.

(See pp. 3–4, 1164, 2599, 2770, 2888, 2972–3081, 3294–343, 3463–86, 3624–46, 3797–829,

3973–4006.)

Senate Report No. 97–187. 97th Cong., 1st sess., 1981.

Senate Ethics Committee, Trial Proceedings (Trial Transcript Excerpts and Tape Recording Transcripts in the Case of The United States of America v. Harrison A. Williams, Jr., Committee Print. 97th Cong., 1st sess. 1981, 6 vols.

Senator David Durenberger

United States Congress. Senate. Congressional Record. July 25, 1990. (See pp. S10557–75 (daily

edition).)

Congressional Record. August 6, 1993. (See pp. S10832–33 (daily edition).)

Select Committee on Ethics and the Special Counsel, Report of Investigation of Senator David

F. Durenberger. 1990, Senate Report No. 101–382, 101st Cong., 2d sess., 1990.

Senator Alan Cranston

Select Committee on Ethics, Report of Investigation of Senator Alan Cranston. 1991. Senate Report No. 102–223. 102nd Cong., 1st sess., 1991.

Congressional Record. November 20, 1991. (See pp. S17175–17203).

Senator Bob Packwood

Select Committee on Ethics and Senate Ethics Counsel, Report of Investigation of Senator Robert

Packwood. 1995., Senate Report 104–137, 104th Cong., 1st Sess. 1995.

Congressional Record. November 1, 1993. (See pp. S14725–65; 14778–14832; 14857). July 21,

1995 (See pp. S10449/10472). July 31, 1995 (See pp. S11039). August 2, 1996 (See pp. S11154;

S11184). September 7, 1995. (See pp. S12796–12801); September 8, 1995 (see pp. S12923).

III. SELECTED FEDERAL COURT DECISIONS RELATING TO CONDUCT AND MEMBERS

OF CONGRESS

United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988), cert. denied, 489 U.S. 1052 (1989).

Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), aff’d, 461 U.S. 911 (1983).

United States v. Bramblett, 348 U.S. 503 (1955).

United States v. Brasco, 516 F.2d 816 (2nd Cir. 1975), cert. denied, 423 U.S. 860 (1975).

Brehm v. United States, 196 F.2d 769 (D.C.Cir. 1952), cert. denied, 344 U.S. 838 (1952).

United States v. Brewster, 408 U.S. 501 (1972).

United States v. Brewster, 506 F.2d 62 (D.C.Cir. 1974).

Burton v. United States, 196 U.S. 283 (1905).

United States v. Bustamante, 45 F.3d 933 (5th Cir. 1995).

United States ex rel. Joseph v. Cannon, 642 F.2d 1373 (D.C.Cir. 1981), cert. den. 455 U.S. 999

(1982).

510 SENATE ETHICS MANUAL

United States ex rel. Hollander v. Clay, 420 F.Supp. 853 (D.D.C. 1976).

Curley v. United States, 160 F.2d 229 (D.C.Cir. 1947), cert. denied, 331 U.S. 837 (1947).

United States v. Dietrich, 126 F. 676 (D.Neb. 1904).

United States v. Diggs, 613 F. 2d 988 (D.C. Cir. 1979), cert. denied, 446 U.S. 982 (1980).

United States v. Dowdy, 479 F.2d 213 (4th Cir. 1973), cert. denied, 414 U.S. 823 1973).

United States v. Durenberger, 48 F.3d 1239 (D.C.Cir. 1995).

United States v. Eilberg, 465 F. Supp. 1080 (E.D. Pa. 1979);

United States v. Eilberg, 507 F. Supp. 267 (E.D.Pa. 1980);United States v. Eilberg 536 F. Supp.

514 (E.D. Pa. 1982); see also In re Grand Jury Investigation Into Possible Violations of Title 18,

587 F.2d 589 (3rd Cir. 1978).

United States v. Garcia, 907 F.2d 380 (2nd Cir. 1990), cert. denied, 502 U.S. 1030 (1992).

United States v. Garcia, 992 F.2d 409 (2nd Cir. 1993).

Gravel v. United States, 408 U.S. 606 (1972).

United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985); cert. denied, 475 U.S. 1045 (1986).

United States v. Hansen, 906 F.Supp. 688 (D.D.C. 1995).

United States v. Helstoski, 576 F.2d 511 (3rd Cir. 1978), aff’d, 442 U.S. 477 (1979).

Hoeppel v. United States, 85 F.2d 237 (D.C.Cir. 1936), cert. denied, 299 U.S. 577 (1936).

United States v. Johnson, 383 U.S. 169 (1966).

United States v. Kelly, 707 F.2d 1460 (D.C.Cir. 1983), cert. denied, 464 U.S. 908 (1983).

United States v. Kolter, 71 F.3d 425 (D.C.Cir. 1995).

United States v. Mavroules, 819 F. Supp. 1109 (D. Mass. 1993).

May v. United States, 175 F.2d 994 (D.C.Cir. 1949), cert. denied, 338 U.S. 830 (1949).

United States v. McDade, 827 F. Supp. 1153 (E.D.Pa. 1993), aff’d, 28 F.3d 283 (3rd Cir. 1984),

cert. denied, 114 S.Ct. 1312 (1995).

United States v. Murphy, and United States v. Thompson, 642 F. 2d 699 (2d Cir. 1980).

United States v. Myers, Thompson, and Lederer, 635 F.2d 932 (2d Cir. 1980), cert. denied, 449

U.S. 956 (1980).

United States v. Myers, United States v. Thompson, United States v. Lederer, 692 F.2d 823 (2d

Cir. 1982), cert. den., 461 U.S. 961 (1983).

Newberry v. United States, 256 U.S. 232 (1921).

United States v. Oakar, 924 F. Supp. 232 (D.D.C. 1996).

Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C. 1994), stay denied, 114

S.Ct. 1036 (1994).Davis v. Passman, 442 U.S. 228 (1979).

United States v. Podell, 436 F.Supp. 1039 (S.D.N.Y. 1977), aff’d, 572 F.2d 31 (2d Cir. 1978).

Powell v. McCormick, 395 U.S. 486 (1969).

United States v. Richmond, 550 F. Supp. 605 (E.D.N.Y. 1982).

United States v. Rose, 28 F.3d 181 (D.C.Cir. 1994).

United States v. Rostenkowski, 59 F.3d 1291 (D.C.Cir. 1995).

United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992); rehearing en banc denied, 980 F.2d

1449 (1992), cert. denied, 114 S.Ct. 683 (1994).

United States v. Williams, 644 F. 2d 950 (2nd Cir. 1981).

Williamson v. United States, 207 U.S. 425 (1908).

APPENDIX M 511

Federal Election Commission v. Wright, 777 F. Supp. 525 (N.D. Tex. 1991).

United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999)

(512)

INDEX

513

INDEX

A

Accounts—see Official/Officially Connected Accounts

Adjudications by Federal agencies (178, 180, 184)

Advisory Opinions of Committee (17)

Aircraft Reimbursement (60, 119)

Amicus brief (115)

Appearance—see Honoraria

Appropriated funds (146–147, 153, 196)

Appropriations Statute (146, 153, 196)

Article writing—see Honoraria

Artwork (118)

Attorneys—see Conflicts of Interest

Auction items (172)

Automobiles (116)

Awards (26, 34, 41)

B

Blind trusts (132–133)

Board service by Members and senior staff —see Conflicts of Interest

Bonus, IR 358 (266–267)

Book writing, royalties—see Honoraria

Briefs, legal (115)

Bribery (57–58)

Buy Down of Gift Value (23)

C

Campaign/Political Activity (84, 139–142)

By Senate employees (84, 138)

As outside activity or employment (84, 138)

Contributions to employer prohibited (147)

Contributions solicited from other federal employees prohibited (148–149)

Conventions (28)

Fundraising restrictions (142–143)

Leave of absence prohibited (140)

Political fund designees (84, 142–143, 148)

Reimbursement of expenses (148)

Running for and holding elective office (84–85, 143–144) Federal (85, 143–144)

State/local (27, 85, 143–147)

514 SENATE ETHICS MANUAL

Solicitations, see Federal Criminal Law and Campaign Funds headings in this section

Campaign Finance Requirements (151–152)

Federal Criminal Law (144, 154, Appendix D)

In Federal buildings (84–85, 144–147, 153)

Linkage to official activities (177, Appendix E)

List of statutory prohibitions (157)

Official Resources, use of (153, 174)

e-mail (174)

mailing lists (154–155, 170)

Senate facilities/space (107, 110, 144–147, 153)

Moratoria, see Moratoria below

Overlapping with Official Senate Duties (141–142)

Campaign Funds

Borrowing prohibited (154)

Campaign finance requirements (151–153)

Contributions by campaign (154)

Donation to charity (154)

Excess campaign funds (107, 112, 115, 154)

Gifts Rule (26, 27–28)

Boxseats at fundraiser (28)

State race (27)

Legal defense funds (115)

Per diem moratorium use of (112, 172)

Personal use prohibited (154–155, Appendix B)

Restrictions on receipt of contributions (151–153)

Solicitation

Generally (144–147, 157–158, 166)

From Federal employees prohibited (148–149)

From Senate employees (147–148)

Vehicle (116)

Candidate financial disclosure—see Financial Disclosure

Cash, gifts (22)

Cars (116)

Caucuses (118)

Charity

Attendance at (39–40)

Auction (172)

Board membership (75–77)

Contributions in lieu of honoraria to (54, 101–102)

Donating campaign funds to (154)

Donating items to (172)

Fundraisers, hosts of (75–76)

Fund, Senator-created (76–77)

Recreational events—e.g., tournaments (39, 45, 57)

Solicitations (54, 166)

Sporting events (40)

Tickets to events (40, 56–57, 59–60)

Clubs, honorary memberships in (60)

Code of Ethics for Government Service

Generally (7, Appendix E)

Text (Appendix E)

Code of Official Conduct (3, 10–12, 18, 22, 25, 108, Appendix B)

Commemorative items (27, 34, 41, see gifts rule)

Compensation

Employees—see Employees, compensation of

For services before Federal agencies (80–82)

Outside—see Outside employment and compensation

INDEX 515

Complaints—see Ethics Committee, overview of process

‘‘Compliments of’’ prohibited on documents (429)

Computer lists, prohibited uses (170)

Condolences, not frankable (166–167)

Conference meetings—see Official/Officially Related office expenses

Confidentiality of information (17)

Conflicts of interest (64–103)

Generally (64–66)

Advisory board service (74–75)

Affiliation with firm, partnership, or corporation (65, 71–74, 95–96)

Board service (74–75, 95–96)

Campaign work (84, 139–140, 157–158)

Charity board service (75–76)

Committee staff members (70–71, 95–96)

Contracting with Federal Government (82–83)

Consulting as outside employment (71–74, 95–96); for Senate-employed

consultants, see Employee heading)

Dual Government Employment (84)

Elective office (84–85)

State/local office (84–85)

Federal office (85)

Honoraria (97–103)

not in Senate space (99)

not in connection with official event (99)

Honorary board service (75–76)

Future employment (91–92)

Legal history (3–12)

Legislative activities (69–70)

Post-Employment restrictions—see separate heading

Professional/Fiduciary restrictions (65, 71–74, 95–96)

Consulting (71–74, 95–96)

Law practice (71–74, 80)

Officer or Board member (74–75, 95–96)

Representing others before Federal government (80–82)

Spouses’ activities (93)

Staff holdings (70–71, 95)

Supervisors (67)

Teaching (79)

Congratulations, as franked mail (164)

Congressional Accountability Act (193–194)

Congressional Record, franking of (165)

Constituent Service (177–191)

Background, Rule 43 (177)

Employment recommendations—see Hatch Act (185–191)

Excerpt from Keating Report (179–185)

Hatch Act - see separate heading

Intervention on behalf of contributors (177–185)

Appearances (184)

Guidelines (177–179, 184–185)

Intervention in

Agency proceedings (177–185)

Ex Parte communications (178, 180–181)

Interference with (181–182)

Court actions (178)

Lawsuits

516 SENATE ETHICS MANUAL

Consultants—see Employees

Contracting with the Federal Government (82–83)

Contributions

For office activities—see Official/Officially Related

Campaign—see Campaign funds

Contributions (27–28)

Copyright royalties (98)

Corporations

Campaign contributions by prohibited (152)

Income from

Board, director or officer fees (74–75)

Dividends (97)

Outside earned income limit (97–98)

Country club, honorary membership—see Gifts

Courts, intervention with (178)

Cultural exchange programs (49–51)

D

Dependents

Employment considerations (195–196)

Financial disclosure (127–128)

Gifts to, as indirect to Members and employees (25)

Travel

Accompanying Members and employees (49, 56–57, 120)

Disclosure (46, 57)

Detailees from Federal agencies (108–109)

Director’s fees, prohibition for members and some employees (74–75, 95–96)

Disclosure—see Financial Disclosure (11, 14, 124–137)

Discrimination in employment—see Employment Practices

Donations to charity auctions (172)

Dual government employment (84)

E

Earned income (97–98, 128–129)

E-mail (173–174)

Employees

Campaign activity by (84–85, 139–142)

Campaign contributions by (147–148)

Committee staff (65, 70–71, 95)

Compensation of (108–110, 113)

Conflict of interest - see generally Chapter 3

Consultants

as Senate employee (109–110)

as outside employment (71–74, 95–96)

Detailees (108–109)

Discrimination (193–195)

Dual government employment (84)

Equipment (110–111)

Fair Labor Standards—see Congressional Accountability Act

Financial disclosure filers—see Financial Disclosure

Foreign nationals (113–114)

Government employees and detailees (110–113)

Interns (112–114)

INDEX 517

Nepotism (195–196)

Outside employment—see Outside employment and compensation

Per Diem employees (109–110)

Political Fund designees (125–126, 142–143)

Post-employment restrictions—see heading

Purchases by (117–118)

Representational Activity before Federal agencies (80–82)

Salaries (108–109)

Special government employees (109–110)

Employment Practices (193–196)

Background (193)

Congressional Accountability Act (193–194)

Employment recommendation—see Hatch Act (185–191)

Senate Rule 42 (194–195)

Employment

Outside—see Outside Employment or Compensation

Spouses—see Spouses; Nepotism

Endorsements (75–76)

Ethics Committee

Advisory Role of the Committee (17)

Authority—Senate Resolution 338 (3, 13–14)

Background and evolution

Amendments to Conflict-of Interest and Bribery Laws—1962 (8)

Bobby Baker investigation—1963 (9–10)

Code of Ethics for Government Service—1958 (7–8, Appendix E)

Creation of Select Committee on Ethics—1976 (10–11)

Discipline of Senator Joseph McCarthy (6)

Douglas Subcommittee report (5)

Establishment of Select Committee on Standards and Conduct—1964 (10–13)

Establishment of Select Committee on Ethics (11–13)

First Code of Conduct (10–14)

Jurisdiction of the Committee (12–14)

Official Conduct Amendments of 1977 (11)

Overview of process and procedures, general (3)

Overview of process and procedures—inquiries and investigations (3, 14–17)

Publicly Reported inquiries and investigations (Appendix E)

Sources of Standards of Conduct (17–18)

Ethics in Government Act (62, 155)

Title I—see Financial Disclosure

Title V—see Outside earnings and compensation; Honoraria

Ethics Reform Act of 1989, generally (57)

Excess Campaign Funds (105–106, 116, 154)

As officially-related funds (106)

Expenses that can be paid by (112–121)

518 SENATE ETHICS MANUAL

Ex parte communications (178, 180–181)

Expenses—see Official/Officially Related Office Accounts

F

Facilities, use of (174–175)

Fact Finding—see Travel

Fair employment practices (193–196)

Fair labor standards (193)

Family members (see Dependents; Nepotism; Relatives; Spouses)

Federal Election Campaign Act (see Campaign)

Federal employment

Dual compensation (83)

Political activities or contributions for (139–149)

Recommendations by Senators for (185–191)

Federal Government

Agency adjudications (84)

Communicating with agencies (178–185)

Compensation for services before (180–182)

Contracting with (82–83)

Gifts from (26, 36–37)

Procurements, grants, inquiries regarding acting in official capacity (177–178)

Procurements, grants, inquiries regarding acting in personal capacity (80–82)

Recommendations for employment—see Hatch Act

Status requests (177–178)

Travel (26, 113, 120)

Fellowship programs (113–115)

Financial disclosure (124–136)

Agreements or arrangements (136)

Assets and unearned income sources (129–132)

Definition of unearned income (129–131)

Types of traded assets and unearned income sources (130–132)

Unearned income (129–131)

Background (124–125)

Compensation in excess of $5000 paid by one source (136–137)

Dependent and spouse information (127–128)

Earned and non-investment income (128–129)

Filing individuals (125–126)

Candidates (126)

Consultants and Fellows (125–126)

Members and staff (125)

Annual filers (125)

New employees (125)

Political fund designees (125–126)

Principal assistants (125–126)

Termination filers (126)

Filing procedures (125–127)

Amendments (126–127)

Committee review (126–127)

Deadlines (126–127)

Form (125–127)

Gifts (62, 134–135)

History of (11, 14, 124–125)

Liabilities (135–136)

Payments in lieu of honoraria (101–103, 128)

Penalties (127)

Failure to file (127)

Filing false disclosure statements (127)

Positions held outside U.S. government (136)

INDEX 519

Spouse and dependent information (127–128)

Termination report (126)

Transactions (133–134)

Travel Reimbursements (135)

Trusts (132–133)

Excepted trust (132)

Qualified blind trust (133)

Value (129)

Waivers (126)

Flags flown over the Capitol (168, 172)

Food and beverages for official meetings (116)

Foreign Gifts and Decorations Act (49–51, 135)

Generally (49–51)

Text of Statute (Appendix D)

Foreign governments (86, 89–90, 95)

Acting as agent of (86, 95)

Compensation from (86, 95)

Decorations and awards from (32, 49–51, 86, 95)

Gifts from (86, 95)

Post-employment limitations on representing (89–90)

Travel from (see Travel)

Foreign nationals, campaign contributions prohibited (153)

Foreign travel—see Travel

Former Members

Campaign funds (154–155)

Employment restriction—see Post Employment

Franking privilege (162)

Frank (160–175)

Allowance, mass mailings (169)

Authority to use (160–162)

Background (160–161)

Ethics Committee Jurisdiction (161)

Franking Allowance (116, 160–161)

Frankable mail

Biographical material (165)

Books, to libraries, etc. (167)

Congressional Record (165)

Federal regulations or other federal publications (164)

Generally (163)

Legislative actions or official business (163)

Letters of congratulations on public distinction (164)

Mail between D.C. office and home state office (163)

Mail to other Members and legislators (164)

Newsletters or press releases (163, 168, 202–203)

Photographs (117, 165)

Public service material (165)

Questionnaires (163)

Return Address Mail (162)

Seeds and agricultural reports (165)

Voter registration or election information (164–165)

Letterhead—see separate heading

Loan of frank (162)

Mass mailings and newsletters (167–171)

Allowance (169)

Committees (171)

Computer facilities (170)

Content (168–169)

Definition (167–168)

Direct response (168)

Expenses for (116, 169)

Federal publications, limited exception (168)

Mail to other Members or government officials (198)

520 SENATE ETHICS MANUAL

Mailing lists (170)

Moratorium (170–171)

News releases to media (168)

Page limit (168)

Payment for (116, 169)

Personal references (168)

Photographs of Member (169)

Preparation by Senate Service Department (169)

Registration (169)

Return mail (162–163)

Town meeting notices (168)

Non-frankable mail

Condolences (166)

Express mail (167)

Foreign mail (167)

Greetings from Member’s family (165–166)

Holiday greetings (166)

Letters of congratulations on personal distinction (165–166)

Material complimentary of Member on personal basis (165)

Party Designations (166)

Payment for (116)

Personal books of Member (167)

Personal mail (166)

Reports of Member’s or families personal activities (166)

Return Mail (162–163)

Solicitations of political or financial assistance for a candidate (166)

Use of private organization’s mailing list (167)

Rules Committee Regulations (161, 170–171, 172–174)

Violation of franking statute (161)

Criminal penalties (161)

Responsibility of Member (161)

Frequent flyer mileage (52)

Fundraisers

Campaign (27–28, 59–61)

Charitable (27–28, 39, 59–61)

Tickets, acceptance and valuation of (27, 40, 59–62)

Furniture (35, 118–119)

Future employment, negotiating for—see Post Employment

G

Gifts (21–62)

Acceptance, limitations on (22–25)

Aggregate (22–23)

Annual (22–23)

Per gift (22–23)

Received that are over the limit (27)

Bribery (57–59)

Buy-downs (23)

Candidates (25)

Cash (22)

Club memberships (60)

Dating relationship (29)

Definition of gift (25)

Dependents (28–29, 56)

Disclosure (42, 45, 62, 134–135)

Entertainment (38–40, 43)

Exceptions (25–43)

Attendance at events connected with official duties (26)

Attendance at charitable events (26, 39)

Awards in recognition of public service (26, 34–35)

Awards or prizes (26, 34)

Available to public or all federal employees (26–27, 40–41)

Bequests and inheritances (26, 36)

Charity events (26, 39, 57)

Commemorative plaques or trophies (27, 41)

INDEX 521

Commercial loans (27, 40)

Constituent groups, meetings with (42)

Contributions to legal expense trust fund (26, 30–31)

Conventions (28)

Food or refreshments, not part of a meal (27, 43)

Foreign Gifts and Decorations Act (26, 49–51)

Home state product (26, 35)

Furnishings (35, 118–119) Artwork (35, 118–119)

Inaugural tickets (42)

Informational materials (26, 34)

Items of little intrinsic value (27, 43)

Meals (24–25, 56)

As gifts Constituent-sponsored meetings and meals (121)

Group gifts of food (24–25, 60–61)

Parties and receptions (43, 61, 121, 122)

Payment for (22–25)

‘‘Pizza’’ rule and boxed food (24–25)

Reception food (43, 61)

Spouse in attendance (38–39, 49, 56–57)

Valuation of (24–25, 61–62)

Minimal value (27, 43)

Multiple items (23)

Mutual Educational and Cultural Exchange Act (26, 49–51)

Other Senate Members, officers, or employees (26, 32)

Outside employment or activities (26, 32–33, 56)

Paid for by federal, state, or local government (26, 36–37)

Paid for by Indian tribes (36)

Paid for or returned (23, 26–27)

Pension benefits from former employer (26, 33)

Perishable goods (27)

Personal friendship (26, 29–30)

Personal hospitality (26, 37–38)

Political contributions (26–28, 147–149)

Political organization fundraising event (26–28, 59) Attendance at event (26–28, 142, 148)

Other benefits—e.g., travel (26–28, 32–33) Prospective employer (26, 32–33)

Receptions (43, 121)

Relatives (26, 28–29, 42)

Suitable memento—see commemorative item (27, 41)

Training (26, 35)

Waiver (27, 41–42)

Widely-attended event (26, 38–39, 56)

Fellowships (36)

Financial disclosure of (32, 34, 41–42, 45–46, 53, 57, 62, 134–135)

General guidelines (43)

Group gifts (60–61)

History of the Gifts Rule (22)

Honorary club memberships (60)

Illegal gratuities (8, 30, 57–59)

Inaugural tickets (42)

Indirect gifts (56)

Lobbyists, definition (30, 43–44)

Lobbyists, restrictions on (30, 37, 38, 43–44, 54–55)

Charitable contributions recommended by Member etc. (43–44, 54–55)

Contributions to legal expense trust funds (30–31, 43, 54)

Contributions to official meetings (55)

Reimbursement for officially related travel (44–46, 53)

Personal friendship (30)

Personal hospitality (37–38)

Repeated gifts (43)

To charity maintained or controlled by Member etc. (43, 54–55)

Meals (24–25, 43, 56, 61)

Constituent-sponsored meetings and meals (42)

Group gifts of food (60–61) Parties and receptions (61)

‘‘Pizza’’ rule and boxed food (24–25)

Reception food (43, 61)

Spouse in attendance (38–39, 49, 56)

Necessary expenses—see Travel (44–53)

522 SENATE ETHICS MANUAL

Recreational events (40, 45)

Reimbursed expenses—see Travel (44–54)

Repeated gifts (43)

Reporting requirements (32, 34, 41-42, 45–46, 53, 57, 62, 134–135)

Scholarships (36, 50)

Senators-elect (121–122)

Significant others, gifts from (29, 42)

Solicitation of gifts (57)

Charitable contributions (54–55)

Source of gift (55)

Sporting events (40, 45, 59–60)

Spouses (25, 28–29, 39, 42, 49, 51, 56–57)

Charity event (39)

General (25, 56–57)

Food and refreshments (56)

Outside business/employment (32–33)

Travel (49)

Widely attended event (38–39)

Superiors, gifts to (32)

Travel, reimbursement, etc.—see Travel section

Valuation of gifts (59–62)

Buy downs prohibited (23)

Club memberships (60)

Divisible gifts (23)

Fundraisers (59)

Food provided to Member’s office (24–25, 61)

Generally (59–62)

Group gifts (60–61)

Group gifts of food Parties and receptions (61)

‘‘Pizza’’ rule and boxed food (24–25, 61)

Honorary memberships (60)

Meals (24–25, 61)

Parties, going away (61)

Private air travel (60)

Season passes (59)

Skybox/luxury seats (59–60)

Tickets (23–24, 59–60)

Taxes (62)

Waiver (41–42)

Who is covered (25, 56–57)

Government Employees Rights Act (4)

Gratuity, unlawful (8, 30, 58–59)

Great Seal (151, 172)

H

Hatch Act—Employment Recommendations

Ethics Committee Dear Colleague (187–191)

Key provisions (185–186)

OPM’s guidance (185–191)

Text of Statute (185–186)

History, Senate Ethics Committee (3–12)

Holding federal office (85)

Holding local or state office (84–85, 143–144)

Holiday greetings, not frankable (166)

Home-state products (26, 34)

Honoraria (95, 98–103)

Generally (95, 98–103)

Advance on royalties (100)

Ban on receipt by Members and employees (95, 98–103)

INDEX 523

Defined—appearance, article, speech (99–100)

Disclosure—see Financial Disclosure

Exceptions to ban (100–101)

Editing (100)

Book writing (100)

Fiction works (100)

Entertainment (100)

Worship services (100)

Payments to charity in lieu of (101–103, 128)

Reporting requirements—see Financial Disclosure

Royalties (100)

Stipends (101)

Honorary memberships—see Gifts (60)

Hospitality, personal (26, 37–38)

I

Illegal gratuities (8, 30, 58–59)

Inaugural events (41)

Income, outside—see Outside employment, and Financial Disclosure

In-kind services to Senate, ban on (105)

Inquiries to Federal agencies—see Federal Gov., and Constituent service

Inside mail (171–172)

Internet

Moratorium (173)

Rules Committee Policy, see Appendix K

Website

Campaign (151)

Senate (151)

Interns (113–115)

Interpretative rulings, see Appendix A

Investigation (3–4, 9–17)

J

Judicial communications (see Constituent service)

L

Law practice (see Conflicts of Interest, and Outside employment)

Lawsuit

Intervention (178)

Legal expenses (30–31, 54, 115–116, 155)

Leave of absence not permitted (67–68)

Legal expense trust funds (30–31, 54, 115–116, 155)

Letterhead (171–172)

Inside Mail, use of (171–172)

Official, use of (116, 171–172)

Officially Related, use of (171)

Prohibited Uses

Campaign (171)

Charity (171–172)

Loan to outside organizations (171–172)

Solicitations (171–172)

Use of ‘‘United States Senator’’ letterhead (171–172)

524 SENATE ETHICS MANUAL

Loan of furniture or artwork (35, 118–119)

Lobbying by former employee, see Post Employment

Lobbyist

Gifts rule (30, 37–38, 43–44, 54–55)

Local office, employees holding (85, 143–144)

Lottery prize, not gifts (33)

M

Mailing lists (151, 153–154, 167, 170)

Mass mailings—see heading under Frank

Meals

As gifts, see Gifts, Meals

Committee event (107)

Constituent-sponsored meetings and meals (42)

Group gifts of food (60–61)

Parties (61)

Payment for

Official events (107, 120–121)

Officially related events (120)

‘‘Pizza’’ rule and boxed food (24–25, 61)

Receptions (43, 121–122)

Spouse in attendance (38–39, 49, 56)

Valuation of (24–25, 61)

Meetings, use of space for official activity (110, 121)

Member organizations—see Caucuses

Mutual Education and Cultural Exchange Act (26, 49–51)

Mementos—see Gifts (27, 41)

Moratoria

on Internet use (173)

on Lame Duck travel (52)

on mass mailings (170–171, 173)

on mobile office use (173)

on official travel/per diem during campaign period (120, 173)

on town meeting notices (171, 173)

on use of radio and television studio (173)

re political conventions (171)

N

Negotiating for future employment (91–92)

Nelson Report (66, 69)

Nepotism (195–196)

News releases, exception to moratorium (173)

O

Official/Officially Related Office Accounts (105)

Artwork (109)

Beverages and food for official meetings (107, 121–122)

Cars, as (116)

Campaign expense (116)

Campaign funds for officially related expenses (105–106, 112–121, 154)

Caucuses (118)

Committees, food expense (107)

Co-sponsored events (112)

Official constituent service events (112)

INDEX 525

Detailees (108–109)

Intern, volunteer, and fellowship programs (108–110, 113–115)

Interpretative Ruling 443 (105)

Interpretative Ruling 444 (106)

Legal expenses (30–31, 115–116, 155)

Amicus curiae briefs (115)

Campaign funds, use of to pay (115, 155)

Legal expense trust funds (30–31, 115–116, 155)

Pro bono legal services (31, 115–116)

Senator as a party in a lawsuit (30, 115–116, 155)

Mail

Expenses of (160, 169)

Franked—see Frank

Letterhead—see Letterhead heading

Mailing lists (54–55, 170)

Meals and refreshments (24–25, 27, 43)

Buy downs prohibited (23)

Food versus meal (24)

Officially related fund, use of (105–106, 120–121)

Spouse attendance (39, 49)

Valuation (22–25, 59–61)

Meeting space, use of privately-owned (116)

Meetings and Conferences (112)

Office retreats (55, 120–121)

Official expenses, definition (107–121)

Equipment (35, 110–112)

Fact finding (44–47, 113)

Furniture, furnishings, and artwork (35, 118–119)

Motor Vehicles (116)

Office space (110)

Private intern, fellow, and volunteer programs (113–115)

Staff salaries (108–110, 113–115)

Stationery for official correspondence (111, 171–172)

Outside organizations, prohibition on payments by (54, 105)

Personal funds (105–112)

Members (105–112, 113)

Staff (117)

Political use of official funds, prohibited (121, 153)

Private payment of, prohibited (105–106)

Pro bono legal services (115–116)

Publications (117)

Radio and Television studio (117)

Relatives, payments to prohibited (98–99)

Travel expenses—see Travel

Office of Public Records (31, 126–128)

Official Seals, Great and Senate (151, 172)

Outside Earned Income (84–85, 97–99)

Outside employment or compensation (63–103)

Generally (63, 95–98)

Acting as agent for foreign principal (86, 95)

Affiliation with firms providing fiduciary services (65, 71, 95–96)

Annual earned income limitation (84–85, 97–99)

Approval of supervising Member or officer (65, 67, 95)

Board service by Members and senior staff (66–67, 74–75, 95–96)

Campaign work (84–85, 139–157)

Compensation from foreign governments (86)

Conflict of interest—see also Conflict heading

Requirement to avoid (64–66)

Actual conflict (66–67)

Appearance of conflict (67)

Prohibition on advancing personal financial interest (66)

Contracting with the federal government (82–83)

Corporations with relationship to Member (82–83)

Employees (83)

526 SENATE ETHICS MANUAL

Members (82)

Disclosure—see Financial Disclosure heading

Divestiture of substantial holdings by committee staff (70–71, 95)

Dual government employment (84)

Elective office (85–86)

State and local (85)

Federal office (85–86

Employees earning at least $25,000 per year (65)

Affiliating to provide professional services (65, 72, 95)

Use of name by firm providing professional services (71–74)

Fiduciary services, restrictions on providing (71–74)

Accounting (72)

Consulting (71–74, 95–96)

Practice of law (71–74, 80)

Real estate sales (71–74)

Honoraria (98)

Book royalties (100)

Contributions in lieu of (101–103)

Definition of speech, appearance, or article (99–100)

Prohibition on acceptance (98–99)

Restrictions on direction to charity (98–99, 101–103)

Investment income (97–98)

Stipends (101)

Lobbying restrictions, post employment (86–91)

Definition of lobbying (88)

Exceptions (90–91)

Foreign entity—government or political party (89–90)

Restrictions on all Members, officers and employees (86–88)

Restrictions on those paid at least 75% of Member’s rate (89–91)

See headings under Post-Employment Restrictions

Military service (68)

Negotiating for future employment (91–93)

Practicing profession on Senate time (64–66, 71–73)

Professional services (71–74)

Representing others before the Government (80–82)

Reporting outside activities in writing to supervisor (65, 66, 95)

Service as officer or board member (66, 74–75, 95–96)

Members (74–76)

Staffers (74–76)

Spouse (92–94)

Summary (95–96)

Teaching (79–80)

INDEX 527

P

Parties, gifts rule (61)

Partnerships, reporting assets of (131)

Per diem/special employee (74, 119–110)

Personal activities with appropriated funds (196, 174–175)

Personal hospitality (37–38)

Personal funds of Members—see Official/Officially Related

Personal use of campaign funds, prohibited (154–155)

Political activities by Senate employees—see Campaign Activity (138)

Political expenses—see Campaign funds

Political fund designee (142–143, 148)

Political organizations, see generally, (138–158)

Post-employment restrictions (86–93)

Exceptions (90–91)

Negotiations for future employment (91–93)

Penalties (90)

Restrictions under criminal law (89–91)

Restrictions under Senate rule (87–88)

Work for personal and committee staffs (87–88)

Vacation, accrued pay (92)

Preliminary Inquiry (15)

Principal Assistants, financial disclosure by (125)

Prior authorization for staff travel (45)

Pro bono legal expenses (115–116)

Procedure, Ethics Committee (351)

Publications (117)

Q

Questionnaires (163)

R

Radio and Television Studio (117)

Receptions

Food, not meal (42)

Not a gift to honoree (61)

Payments for official reception (121)

Widely attended (38)

Recommendations for employment—see Hatch Act

Reimbursement—see Travel

Relatives—see also Spouses, Dependents

Campaign involvement (154)

Employment considerations (91, 122, 195)

Financial disclosure (91, 127–128)

Gifts to, as indirect to Members and employees (26)

Travel (49, 51, 57)

Accompanying Members and employees (49, 51, 57)

Independent (57)

528 SENATE ETHICS MANUAL

Reporting requirements, financial (see Financial Disclosure)

Representing others before Federal agencies (80)

Return mail (162)

Royalties (97–98)

Rules, Committee on Rules and Administration (110, 161, 163, 167, 171)

Rules of Procedure, Ethics Committee (353)

S

Scholarships—see Gifts, Training

Seals, Great and Senate (172)

Select Committee on Ethics—see Ethics Committee

Senators—elect (122)

Senators—retiring (122)

Significant others, waiver of gifts rule (28)

Solicitations

Campaign (142, 144, 166, 171–172)

Charitable (54–55, 171–172)

Of gifts, prohibited (57–58)

Space, use of Senate (110, Appendix J, see Rules Committee Policy)

Special government employee (74, 109)

Speech—see Honoraria

Spouses

Employment considerations (93–94, 195)

Financial disclosure (93, 127–128)

Gifts to, as indirect gifts to Members and employees (26)

Travel (49, 51, 57)

Accompanying Members and employees (49, 51, 57)

Independent (57)

Officially related (57, 120)

Reporting (57)

Sporting event

Staff—see Employees

State and local governments

Assistance from (113)

Co-sponsoring constituent service event with (112)

Gifts from (26, 36–37)

Holding office with (85)

Stationery—see Letterhead

Status inquiries (177–191, 181)

Statutes (partial heading to text cites, see Appendix D for complete list)

Appendix D (399)

Appropriated funds (196, 427)

Bribery (407)

Contracting with government (423, 428)

Conversion of government property (425)

Dual compensation (400)

False claims (423)

Financial disclosure (430)

Foreign gifts and decorations (402–404)

INDEX 529

Gifts to federal employees (405)

Gifts to superiors (405)

Hatch Act (401)

Honoraria prohibition (405, 430)

Illegal gratuity (406)

Nepotism (401)

Post-employment, criminal (415)

Outside earned income (405, 428)

Representing others before federal government (411)

Solicitation, federal buildings (424)

Superiors, gifts to (31, 405)

Supervisors (67)

T

Teaching (79)

Termination reports (126)

Tickets—see Gifts (19)

Time limits on fact finding travel (47–48)

Town meeting notices, moratorium (168, 173)

Travel (44, 113, 119–120)

Accompaniment by spouse or dependent (49)

Back-to-back trips (47)

Campaign (119–120, 153)

Disclosure (45, 50–51, 53, 476)

Distance requirement (44–45)

Duty Station (45)

Exception to Gift Rule (44–45)

Expenses for non-Senate individuals (120)

Extending trip for personal travel (47)

Fact finding (44–45)

Foreign Gifts and Decorations Act (49–51)

Foreign travel (49–51)

Cultural exchange programs (49–51)

Foreign government sponsored (49–51)

Originating in the United States (51)

Totally outside the United States (50)

Private sponsor (46, 48–49)

Form, 475, Appendix G

Frequent Flyer Miles (52)

Lame Duck travel (52)

Lobbyists, definition (43)

Mixed purpose travel (119–120)

Moratorium on lame duck travel (52, 173)

During campaign period (120, 173)

Mutual Educational and Cultural Exchange Act (49–51)

Necessary expenses, acceptance and payment of (44, 46–47)

Necessary expenses, defined (46)

Payment for (119–120)

Privately sponsored (60)

Prior authorization for employees (45)

Prohibition against acceptance of expenses for official travel from private source (44–45)

Prohibition against reimbursement by lobbyists or foreign agents (44, 53)

Reporting requirements (45, 50–51, 53), See Chapter 2 and Chapter 5

Summary (53)

Time limits (47, 53, 117)

Who may pay expenses (48–49, 53)

Trusts

Excepted Trust (132)

Legal Expense Trust Fund (30, 115–116)

Qualified Blind Trust (133)

530 SENATE ETHICS MANUAL

U

Unofficial office accounts—see Official/Officially Related Accounts

Unearned income, reporting of (130)

V

Vacation (140)

Valuation of gifts (59)

Vehicles (116)

Vice President (25)

Volunteers (113–115)

Voter registration materials, franking (164–165)

Voting by Members (69)

W

Waivers

Financial Disclosure (126, 134–135)

For per diem employees (109–110)

Gift acceptance limit (22, 41–42)

Gift reporting requirement (134–135)

Procedure (353)

Time limit on travel (47)

Widely Attended (38–39)

Æ