The House Committee on Ethics has issued two memoranda—one to Members and officers and the other to staff—detailing the restrictions placed on these individuals when negotiating future employment and entering the private workforce.  While this guidance is directed to those within the House of Representatives, it provides a useful description of the issues private employers must consider when interviewing or hiring from the House.  We summarize below the restrictions discussed by the Ethics Committee.  Note that while the rules for those in the Senate are similar in many ways, there are key differences, and the recent guidance applies only to those in the House of Representatives.

Negotiating for Future Employment

Members, officers, and staff face certain ethical constraints when negotiating future employment while still employed by the House.  The Ethics Committee first clarifies that there is a distinction between “negotiations” and “preliminary or exploratory talks.”  Negotiations imply “a communication between two parties with a view toward reaching an agreement” where there is “active interest on both sides.”  Sending a copy of a resume to a potential employer is not “negotiating.”   The guidance memos state that Members and staff should take particular care when negotiating with an entity that could be affected by the performance of the individual’s official duties.  The Committee suggests that Members, officers, and employees tell prospective employers that no official favors will be given as a result of the job negotiations, and that the individuals will be subject to certain post-employment restrictions.

Disclosure of Negotiations and Recusal Requirements

Members and certain House staff must notify the Ethics Committee within three business days after commencing negotiations with a private entity.  In addition, members must recuse themselves from matters, which includes votes, where the negotiations would create a conflict of interest or appearance of a conflict.

Benefits Offered by Prospective Employers

Members, officers, and employees may accept food, refreshments, lodging, transportation or other benefits customarily provided by a prospective employer during employment discussions.  This is an exception to the general rule prohibiting House Members and employees from accepting gifts.  Depending on the total value, the benefits might need to be disclosed by the recipient.

Post-employment Restrictions

Members, officers, and employees paid above a certain level face detailed restrictions on representations they engage in after leaving the House.  The post-employment restrictions are comprised of a complex pattern of prohibitions and exceptions, and violators face criminal penalties.  In addition, the Committee correctly notes that DOJ has recently paid “close attention” to potential violations of the post-employment restrictions.  While we provide highlights of the Committee’s guidance here, it is important to note that post-employment issues entail a significant level of risk and are highly individualized, and therefore experienced political law counsel should be consulted to evaluate the impact of the restriction on Members, officers, or employees you might consider hiring.

Generally—the guidance memos note—House Members, officers, and employees face a one-year “cooling-off” period measured from the date the individual departs from the House payroll (not adjournment sine die).  The restrictions on Members and officers are different from those placed on senior staff (broader for Members), and prohibit various communications with, appearances before, and representations of government officials or entities that change depending on the parties involved.  The guidance memos provide an overview of the prohibitions as well as the many exceptions to the prohibitions.

Other Restrictions and Considerations

The Committee’s memos also summarize the following issues related to the departure of House Members, officers, and employees:  floor privileges of a former Member; financial disclosure requirements; use of excess campaign funds; outside employment and earned income restrictions; travel restrictions.  One item from the guidance memos is worth noting here—House rules limiting outside employment could be implicated if a new employer suggests that a departing Member start working after the House adjourns but before the Member’s term expires, or that a departing employee start working while the individual is still collecting accrued annual leave.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Derek Lawlor Derek Lawlor

Derek Lawlor is of counsel in the firm’s Election and Political Law Practice Group. Derek advises corporations, nonprofit organizations, and trade associations on compliance with federal and state lobbying, campaign finance, and government ethics laws.

Clients regularly rely on Derek to assist with…

Derek Lawlor is of counsel in the firm’s Election and Political Law Practice Group. Derek advises corporations, nonprofit organizations, and trade associations on compliance with federal and state lobbying, campaign finance, and government ethics laws.

Clients regularly rely on Derek to assist with their complex questions related to activities and projects that implicate all of these laws. Derek advises federal and state candidates and super PACs on campaign finance and disclosure issues. Derek also represents clients in government investigations and inquiries conducted by the Federal Election Commission, Office of Congressional Ethics, and Congressional Committees and Commissions.

Derek’s representation of clients covers the full range of important political law issues that they face, including:

  • Advising clients on their registration and reporting obligations under the federal Lobbying Disclosure Act, as well as state and local lobbying laws, including helping client organizations evaluate the core questions that arise in this space:
    • Has the organization or any of its employees triggered lobbying registration requirements?
    • What lobbying income, expenditures, issues, or contacts need to be disclosed on lobbying reports?
    • Does procurement or sales activity directed at governmental entities trigger lobbying registration in a particular jurisdiction?
    • What are the best practices for designing a lobbying compliance program?
  • Assisting corporations and trade associations with the establishment and operation of connected PACs, which frequently entails evaluating the following questions:
    • What steps does the organization need to take to start up and register a connected PAC?
    • What are the ongoing reporting requirements under the Federal Election Campaign Act (“FECA”) or state campaign finance laws?
    • Which employees can the organization solicit and what are the rules on conducting a solicitation campaign?
    • What are the limits on making contributions to federal, state, or local candidates, party committees, or other political committees?
    • What are the best practices for designing a PAC compliance program?
  • Evaluating whether a client’s proposed activities might trigger registration under the Foreign Agents Registration Act (“FARA”), and if so, advising on registration and ongoing reporting obligations;
  • Advising federal and state candidates, super PACs, and other political committees on compliance with FECA, FEC regulations and reporting requirements, state campaign finance laws, rules on disclaimers placed on communications, and other political law compliance topics;
  • Counseling individuals who are entering government service, including Senate-confirmed positions, on the various financial disclosure requirements, conflicts of interest considerations, and other ethics law issues they may face;
  • Helping clients establish politically active or policy-focused nonprofit organizations, and proving ongoing support related to tax and political law issues that might arise from their activities; and
  • Advising corporations, nonprofits, and individuals on their proposed donations to candidates, political committees, and other politically active outside groups.

Derek is a Professorial Lecturer in Law at the George Washington University Law School.

Prior to receiving his law degree, Derek worked in the Office of General Counsel at the U.S. House of Representatives.