Assistance from congressional offices can be invaluable to an organization with interests before executive branch agencies.  But it also can pose legal and optics risks to both the organization requesting the assistance and the congressional office and Member of Congress doing the outreach.  A number of high-profile scandals, including the Keating Five matter in which five senators met with the Federal Home Loan Bank Board on behalf of a financial institution that later went bankrupt, involved outreach to federal agencies on behalf of businesses and individuals.

The House and Senate ethics committees generally appreciate the legitimacy of outreach to federal agencies on behalf of constituents and other stakeholders and generally provide broad authorities for members to engage in these activities.  The  Senate Ethics Manual notes that assisting petitioners with executive or independent government officials and agencies “is an appropriate exercise of the representational function of each Member of Congress.”  The Senate Rules give senators pretty broad leeway to engage in outreach to the executive branch, specifically sanctioning communications with an executive or independent government official or agency “on any matter” to “request information or a status report,” “urge prompt consideration,” “arrange for interviews or appointments,” “express judgments,” or “call for reconsideration of an administrative response which the Member believes is not reasonable supported by statutes, regulations or considerations of equity or public policy.”  The rule admonishes that any such acts may not be made on the basis of political contributions or in instances in which the senator has a conflict of interest.  The House Ethics Committee gives similar instructions regarding outreach to federal agencies.

Further restrictions apply to matters involving procurement and adjudicatory proceedings at agencies, as agencies have particular interests in protecting the integrity of their decisions in these types of activities. Congressional offices may also have their own policies on the sorts of matters about which they will engage with agencies.  For instance, many offices may not want to weigh in on behalf of a constituent seeking a competitive grant if other constituents are seeking the same grant.

Additional risk — that is of criminal investigation and prosecution — applies when the individual or organization requesting support from a congressional office is a contributor to the Member of Congress.  While the Supreme Court’s 2016 decision in McDonnell v. United States greatly narrowed the definition of “official act” under the federal bribery statute, post-McDonnell cases have established that inter-branch lobbying by a congressional office can be an official act supporting a corruption conviction.

Those considering asking congressional offices to conduct outreach to federal agencies on their behalf may find the following guidelines useful for reducing legal and optics risks:

• Never implicitly or explicitly connect a past, pending, or future contribution or fundraising event to a request for outreach.

• Avoid asking Members of Congress to engage in outreach while at a fundraising event.

• An individual or organization making a request for outreach should have a connection with the Member of Congress other than being a contributor, like being a constituent or having a unity of interests in the subject matter of the request.

• Requests for outreach should be made to congressional staff, and never to fundraising staff.

• Do not ask for special treatment because of a contribution history or political affiliation.
• Seek legal advice before asking a Member of Congress to get involved in a procurement decision or agency adjudication.