Members, officers, and employees of the House may not accept gifts totaling more than $250 in a calendar year from any person or organization. The following do not count towards the $250 limit:
* gifts of personal hospitality,
* gifts worth $100 or less,
* gifts from relatives (including fiances), and
* local meals.
The Committee may grant waivers in exceptional circumstances.
In addition, Members, officers, and employees may not accept
* any gift from a foreign government worth more than $200 unless specifically approved by Congress; or
* any bribe or illegal gratuity, that is, anything of value in return for, or as a reward for, official action.
The Code of Ethics for Government Service admonishes all Federal officials never to accept favors or benefits in circumstances that might create the appearance of influencing the performance of official duties.
Members, officers, and employees may accept travel expenses from private sources when necessary to enable them to give a speech or otherwise to participate substantially in an event or to conduct fact-finding. A spouse or one other family member may accompany the traveler at the sponsor's expense. Unless this Committee grants prior written approval, the traveler may not accept expenses for more than:
* 4 days (96 hours), including travel time, if the destination lies within the 48 contiguous states, or * 7 days, exclusive of travel days, if the destination lies elsewhere.
The traveler may, however, extend the trip at his or her own expense and on his or her own time.
Members of the House may not treat receipts from fundraisers or testimonials as unrestricted personal gifts but rather must treat such receipts as campaign contributions, which may not be used for personal or official congressional purposes.
Members, officers, and employees may not solicit anything of value from anyone who:
* seeks official action from the House,
* does business with the House,
* or has interests that may be substantially affected by the performance of official duties, except as expressly permitted by this Committee.
Gifts to a spouse or dependent do count towards the Member, officer or employee's gift limit unless the gift is totally independent of the recipient's relationship to the official.
Members and certain House employees must file annual financial disclosure reports, discussed in detail in Chapter 4, which reveal the source and value of gifts received.
Considering the representative nature of congressional offices, it is natural that pressures will be exerted upon Members and employees by concerned constituents. In addition, interest groups will exercise their powers of political persuasion, explanation, or argument on the merits of issues to further their particular positions. When, however, those with special interests bestow gifts, entertainment, and favors upon decision-makers and their advisers, ethical and legal concerns arise.
In a 1951 report entitled Ethical Standards in Government, a Senate subcommittee headed by Senator Paul H. Douglas highlighted some of these concerns:
When is it proper to offer [gifts to] public officials and what is it proper for them to receive? A cigar, a box of candy, a modest lunch. . . ? 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. (FOOTNOTE 1)
(FOOTNOTE 1) 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).
Congress has recognized that ``public office is a public trust.'' (FOOTNOTE 2) Members of Congress 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. (FOOTNOTE 3) The receipt of gifts, entertainment, or favors from certain persons or special interests may interfere with this impartial judgment.
(FOOTNOTE 2) Code of Ethics for Government Service para.10, H. Con. Res. 175, 85th Cong., 2d Sess., 72 Stat., pt. 2, B12 (1958), reprinted at the front of this Manual.
(FOOTNOTE 3) See id. para.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).
In the first place, the recipient will naturally feel grateful and the giver may expect favorable treatment or consideration in return. (FOOTNOTE 4) Certain gifts, moreover, may create a financial conflict of interest for the recipient. A gift of stock, for example, to a Member, employee, spouse, or dependent child may favorably influence the official towards a business or industry on account of the personal holding. (FOOTNOTE 5) As noted in a study of congressional ethics: ``The giver's purpose is usually to create a situation in which the Member has a personal economic stake in common with the giver. Self-interest can then take its course.'' (FOOTNOTE 6)
(FOOTNOTE 4) See Paul H. Douglas, Ethics in Government 48-49 (1952).
(FOOTNOTE 5) This type of ethical problem in gift giving and receiving caused a congressional scandal in the 1860's when stocks of the Credit Mobilier Corporation were distributed at considerably below market value to several congressmen. See Joint Comm. on Congressional Operations, House of Representatives Exclusion, Censure and Expulsion Cases from 1789 to 1973, 93d Cong., 1st Sess. 123-25 (Comm. Print 1973).
(FOOTNOTE 6) 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 179 (1970).
The House Bipartisan Task Force on Ethics (101st Congress) noted its concern that gifts to Members may create an appearance of impropriety that may undermine the public's faith in government:
Regardless of any actual corruption or undue influence upon a Member or employee of Congress, the receipt of gifts or favors from private interests may affect public confidence in the integrity of the individual and in the institution of the Congress. Legitimate concerns of favoritism or abuse of public position may be raised by disclosure of frequent or expensive gifts from representatives of special interests, or valuable gifts from anyone other than a relative or personal friend. (FOOTNOTE 7)
(FOOTNOTE 7) House Bipartisan Task Force on Ethics, Report on H.R. 3660, 101st Cong., 1st Sess. 6 (Comm. Print, Comm. on Rules 1989), reprinted in 135 Cong. Rec. H9253, H9254 (daily ed. Nov. 21, 1989) (hereinafter Bipartisan Task Force Report).
Thus, Members and employees of the House should always exercise caution 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, and possible motives of the donor.
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.'' (FOOTNOTE 8) In this context, officials should consider the nature, source, and amount of the favor or benefit and possible conflicts of interest with official duties. (FOOTNOTE 9) Members and employees should be wary of accepting any gift, favor, or benefit that would not have been offered ``but for'' the individual's position in Congress. This Committee has cautioned all Members ``to avoid situations in which even an inference might be drawn suggesting improper action.'' (FOOTNOTE 10)
(FOOTNOTE 8) Code of Ethics for Government Service para.5, supra note 2.
(FOOTNOTE 9) See House Comm. on Standards of Official Conduct, In the Matter of Representative Charles H. Wilson (of California), H. Rep. No. 96-930, 96th Cong., 2d Sess. 4-5, 19-20 (1980). See also In the Matter of Representative Daniel J. Flood, H. Rep. No. 96-856, 96th Cong., 2d Sess. 5-15 (1980).
(FOOTNOTE 10) House Comm. on Standards of Official Conduct, Investigation of Financial Transactions Participated in and Gifts of Transportation Accepted by Representative Fernand J. St Germain, H. Rep. No. 100-46, 100th Cong., 1st Sess. 3, 9, 43 (1987).
A Member, officer, or employee of the House of Representatives shall not accept gifts (other than the personal hospitality of an individual or with a fair market value of $100 or less, as adjusted under section 102(a)(2)(A) of the Ethics in Government Act of 1978) in any calendar year aggregating more than the minimal value as established by section 7342(a)(5) of title 5, United States Code, or $250, whichever is greater, directly or indirectly from any person (other than from a relative), except to the extent permitted by written waiver granted in exceptional circumstances by the Committee on Standards of Official Conduct pursuant to clause 4(e)(1)(E) of rule X.
-- House Rule 43, clause 4. (FOOTNOTE 11)
(FOOTNOTE 11) Donnald K. Anderson, Clerk of the House of Representatives, Rules of the House of Representatives, 102d Cong. (1991) (hereinafter House Rules).
Until 1990, House Rule 43, clause 4 (the section of the Code of Official Conduct that is commonly known as the ``gift rule'') prohibited gifts to Members, officers, and employees from persons with a direct interest in legislation. The Bipartisan Task Force on Ethics found that standard to be subjective and unworkable: ``It is often impractical, if not impossible, for Members to ascertain whether a donor has a direct interest in legislation, particularly in cases where the Member and donor have a long-standing personal relationship.'' (FOOTNOTE 12) The Ethics Reform Act of 1989, as amended by the Legislative Branch Appropriations Act for fiscal year 1992, (FOOTNOTE 13) amended the gift rule to eliminate the need to make this determination.
(FOOTNOTE 12) Bipartisan Task Force Report, supra note 7, at 7, 135 Cong. Rec. H9255.
(FOOTNOTE 13) Pub. L. No. 101-194, sec. 801(a), 103 Stat. 1716, 1771 (1989), as amended by Pub. L. No. 102-90, sec. 314(d), 105 Stat. 447, 469 (1991).
Therefore, as of January 1, 1992, Rule 43, clause 4, forbids a Member, officer, or employee from accepting gifts worth a total of more than $250 from any one source in any one year. The rule exempts gifts of personal hospitality, gifts worth $100 or less, and gifts from relatives (including fiances). (FOOTNOTE 14) The $250 cap is linked to the cap set under the Foreign Gifts and Decorations Act. (FOOTNOTE 15) That act allows Members, officers, and employees to accept gifts of ``minimal value'' from foreign governments. ``Minimal value,'' currently $200, is adjusted triannually by the General Services Administration. Once the minimal value figure rises above $250, the gift limit under the House gift rule will automatically rise along with it, as will the reporting threshold mandated by the financial disclosure provisions of the Ethics in Government Act of 1978. Similarly, the $100 threshold for gifts that count under the gift rule will rise in tandem with the threshold (now also $100) for counting gifts towards the $250 disclosure threshold. As a result of these changes, if a gift is acceptable under the gift rule, it generally need not be reported on the annual financial disclosure forms filed by all Members and some staffers. (FOOTNOTE 16)
(FOOTNOTE 14) From January 1, 1990 through December 31, 1991, the gift rule banned the acceptance of gifts worth more than $200 from any one source in any one year, excepting gifts worth $75 or less.
(FOOTNOTE 15) See 5 U.S.C. sec. 7342(a)(5). The Foreign Gifts and Decorations Act is discussed in more detail at pages 44-47 of this chapter.
(FOOTNOTE 16) See 5 U.S.C. app. 6, sec. 102(a)(2)(A). Financial disclosure requirements are discussed in detail in chapter 4 of this Manual.
The $250 figure is an aggregate. Thus, the value of all unexempted gifts from a single source in a calendar year must be tallied. Once the tally reaches $250, all further unexempted gifts from that source in that year must be declined. Alternatively, the recipient may ``buy down'' the value of an otherwise excessive gift to bring it within acceptable limits. A Member, officer, or employee who chooses to ``buy down'' the value of a gift must pay for his or her share prior to or reasonably contemporaneous with receipt of the gift.
Example 1. Over the course of one year, company Z offers Member A the following gifts: in January, theater tickets worth $80; in April, a set of leather desk accessories worth $130; in September, a case of wine worth $120; and in December, a set of crystal stemware worth $200. The theater tickets do not count towards the $250 aggregate because they are worth less than $100. All the other gifts count. If Member A accepts the desk accessories and the wine, he must return the stemware to avoid exceeding the gift limit.
Example 2. An acquaintance of Member B has two theater tickets, worth a total of $300, that he is unable to use. He offers them to Member B. She cannot accept them as an outright gift because they are worth more than $250. By paying him $50 for the tickets, however, she may ``buy down'' to $250 the value of the gift to her, and (assuming no prior gifts to her from that source that year) she may then accept the tickets.
Other provisions restrict the circumstances under which gifts may be accepted. The Code of Official Conduct bans a Member, officer, or employee from receiving any benefit ``by virtue of influence improperly exerted from his position in the Congress.'' (FOOTNOTE 17) Similarly, the Code of Ethics for Government Service (paragraph 5) admonishes every Government employee: ``Never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not; and never accept for [oneself] or [one's] family, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of his governmental duties.''
(FOOTNOTE 17) House Rule 43, cl. 3.
The Select Committee on Ethics of the 95th Congress adopted the following basic definition of the term gift:
A payment, subscription, advance, forbearance, rendering, or deposit of money, services, or anything of value, including food, lodging, transportation, or entertainment, and reimbursement for other than necessary expenses, unless consideration of equal or greater value is received by the donor. (FOOTNOTE 18)
(FOOTNOTE 18) House Select Comm. on Ethics, Advisory Opinion No. 7 (May 9, 1977), reprinted in Final Report of the Select Committee on Ethics, H. Rep. No. 95-1837, 95th Cong., 2d Sess. app. at 66-69 (1979), and at the end of this chapter.
The language of the rule and several Select Committee advisory opinions set out a number of exceptions.
In recommending changes to the Code of Official Conduct in the 95th Congress, the Commission on Administrative Review noted that exceptions were provided to ``identify items which do not cause conflicts of interest and/or which impose unreasonably stringent limitations if not excluded.'' (FOOTNOTE 19) Thus gifts valued at $100 (FOOTNOTE 20) or less do not count toward the $250 aggregate. Certain other categories of gifts are similarly exempt.
(FOOTNOTE 19) House Comm'n on Admin. Review, Financial Ethics, H. Doc. No. 95-73, 95th Cong., 1st Sess. 14 (1977); see also House Select Comm. on Ethics, Advisory Opinion No. 9 (May 11, 1977), reprinted in Final Report, H. Rep. No. 95-1837, supra note 18, app. at 73, and at the end of this chapter.
(FOOTNOTE 20) This threshold for aggregation was increased from $35 to $50 by H. Res. 5, 100th Cong., 1st Sess. (see Cong. Rec. H6-16 (daily ed. Jan. 6, 1987)); from $50 to $75 by the Ethics Reform Act of 1989, Pub. L. No. 101-194, sec. 801(a), 103 Stat. 1716, 1771 (1989); and from $75 to $100 by the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, sec. 314(a), 105 Stat. 447, 469 (1991).
``Personal hospitality of an individual'' may be accepted under the rule. The Commission on Administrative Review stated with respect to this exemption:
[T]he Commission understands personal hospitality to mean hospitality for a non-business purpose by an individual, not a corporation or organization, on property or facilities owned by that individual or his family. (FOOTNOTE 21)
(FOOTNOTE 21) Financial Ethics, H. Doc. No. 95-73, supra note 19, at 14.
The Bipartisan Task Force reemphasized these criteria, adding that none of the costs associated with the ``personal hospitality'' could be deducted as business expenses if this exemption were to apply. (FOOTNOTE 22)
(FOOTNOTE 22) Bipartisan Task Force Report, supra note 7, at 10, 135 Cong. Rec. H9255.
If a Member or staffer is offered hospitality for more than four days or three nights consecutively from a single source, then the Member or staffer must make a documented effort to determine whether the hospitality in fact meets the criteria for the exemption. The Member or staffer should prepare a memorandum indicating, e.g., that someone checked with the host, and that the host confirmed that the hospitality was being offered on the host's premises, that the host was not being reimbursed for any expenses by another source, and that no business deduction would be taken for the expenses associated with the visit. (FOOTNOTE 23) The guest should then file the memorandum in his own files and may accept the hospitality. It is not necessary to send a copy of the memorandum to the Committee.
(FOOTNOTE 23) See id. at 9-10, 135 Cong. Rec. H9255.
In any event, no Member, officer, or employee may accept more than 30 days of personal hospitality in a calendar year without a prior written waiver from the Committee. The Task Force suggested that such a ``waiver might be granted, for example, in the case of a Member who customarily stays overnight in a friend's house whenever he visits his congressional district.'' (FOOTNOTE 24) Note that the hospitality exemption covers food and lodging. It does not extend to travel expenses or entertainment outside of the home.
(FOOTNOTE 24) 7EId. at 10, 135 Cong. Rec. H9255.
Example 3. Mr. and Mrs. Z invite Member A and spouse to spend the weekend with them at their home. The Member may accept.
Example 4. Member B receives an invitation to spend a week at an individual's vacation home. The Member should verify (1) that the home belongs to the host personally (as opposed to a corporate employer), (2) that the costs of the visit will not be reimbursed by an employer or deducted from taxes as a business expense, and (3) that the visit has a non-business purpose. The Member should then write a memo for his files so stating and may accept the hospitality.
Example 5. Mr. X invites Member C to spend the weekend with him at his condominium in Aspen. X offers to fly C out on his private plane and to pay for C's ski rentals and lift tickets. While C may accept the weekend lodging, the travel and ski expenses are separately subject to the gift rule and may only be accepted, absent a waiver, if their total value (combined with any other unexempted gifts from X to C that year) is $250 or less.
The Ethics Reform Act, in section 801(e), further directed the Committee to exempt from coverage under the gift rule ``gifts of food and beverages consumed not in connection with gifts of lodging.'' The Bipartisan Task Force indicated that ``[t]he intent of this exemption is to allow Members, officers, and employees to accept meals and beverage in the Washington, D.C. area without regard to the cost, and thus relieve them of the burden of keeping account of the cost of their portion of a restaurant meal as someone's guest.'' (FOOTNOTE 25) This exemption also applies to meals in other cities, as long as the host does not provide travel expenses. The Task Force noted: ``The exemption applies only to meals and beverage provided for immediate consumption. It would not extend, for example, to a gift of a case of imported wine or other consumable items that are not intended for immediate consumption.'' (FOOTNOTE 26)
(FOOTNOTE 25) Id. at 10, 135 Cong. Rec. H9256.
(FOOTNOTE 26) Id.
This exemption assumes that the host will be present at the meal. It does not include offers to pay the bill for a Member, officer, or employee dining alone or with his or her spouse. In addition, like the personal hospitality exemption, it does not generally include entertainment. Where a substantial meal is a significant part of an event that also includes entertainment (e.g., dinner with a floor show), then no part of the cost is considered a gift. Where the entertainment is separate (e.g., theater after a meal), or the meal is not substantial (e.g., a hot dog at a ball game), the entertainment should be considered a gift subject to the limit.
Gifts from relatives are exempt from the gift rule, regardless of value. House Rule 43 defines relative as:
[A]n individual who is related as father, mother, son, daughter, brother, sister, uncle, aunt, 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 such Member, officer, or employee, and shall be deemed to include the fiance or fiancee of the Member, officer, or employee.
Fiances are now included in this definition as a result of an amendment made by the Ethics Reform Act. Thus engagement rings and other tokens exchanged by engaged couples are exempt.
The Select Committee found -- on the basis of the language of Rule 43, clause 4, its legislative history, the absence of conflict of interest issues, and/or public policy considerations -- that certain items were not intended to be covered. The following items are generally not gifts for the purposes of the rule:
(1) Bequests and other forms of inheritance;
(2) Loans made in a commercially reasonable manner (including requirements that the loan be repaid and that a reasonable rate of interest be paid);
(3) Political contributions as defined by the Federal Election Commission and otherwise reported as required by law;
(4) Food, lodging, transportation, and entertainment provided on an official basis by Federal, state, and local governments or political subdivisions thereof;
(5) Food, lodging, transportation and entertainment provided by a foreign government within a foreign country;
(6) Informational materials sent to a Member's offices in Washington and his district, including subscriptions to newspapers, magazines, and other periodicals;
(7) Bona fide awards presented in recognition of public service and available to others besides House Members and employees;
(8) Suitable mementos of a function honoring the Member, officer, or employee;
(9) Consumable products provided to a Member's office by a home-state business that are primarily intended for consumption by persons other than the Member and his staff; and
(10) Food and beverages consumed at banquets, receptions, or similar events. (FOOTNOTE 27)
(FOOTNOTE 27) Advisory Opinion No. 7, supra note 18.
In some instances, however, the donation of certain of these items to a Member or employee may fall under the gift rule. For example, the ``subscription'' exemption is intended to ensure Members access to information sources or reference tools useful in the conduct of official duties. However, an additional courtesy copy of a publication, sent to a Member's home, would be deemed a gift because the Member would be receiving a benefit not generally available to the public.
The gift rule was not intended to prohibit Members, officers, and employees from accepting offers made to the general public. However, an offer targeted specifically at House Members or employees (including, e.g., a sale of property at less than market value) would be viewed as a gift.
Example 6. Member A plays and wins the lottery. She may accept her winnings without violating the gift rule because the lottery is open to the general public.
Example 7. Staffer B accumulates sufficient ``frequent flyer'' miles on personal travel to receive complimentary airfare to Europe. He may accept the award because the ``frequent flyer'' program is available to all travelers.
Example 8. A hotel chain offers a discounted ``government rate'' to all Federal employees, whether they are on official trips or not. House employees may take advantage of the reduced rate.
Example 9. A charitable foundation sponsors a celebrity golf tournament featuring athletes, actors, and business leaders, along with a few Members. The foundation offers to all participants a package consisting of $400 worth of golf accessories. The Members may each accept only $250 worth of these items.
Example 10. A Member participates in a golf tournament and wins $500 for achieving the lowest score. Since the award is based on the Member'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.
Members, officers, and employees should be wary of accepting any gift where it appears that the motivation of the donor is primarily to curry favor or to influence official action.
In proposing its amendments to the gift rule, the Bipartisan Task Force did not intend to ``interfere with normal social relationships or the customary gift-giving between personal friends.'' (FOOTNOTE 28) Therefore, the amended rule authorizes the Committee to grant waivers in exceptional circumstances. The Task Force anticipated that such waivers would be available only ``in cases where there is no potential conflict of interest or appearance of impropriety . . . . As a general rule, it is intended that such exceptions from the gifts prohibition would be appropriate in the case of 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 Congress.'' (FOOTNOTE 29)
(FOOTNOTE 28) Bipartisan Task Force Report, supra note 7, at 9, 135 Cong. Rec. H9255.
(FOOTNOTE 29) Id.
The rule directs the Committee to grant waivers only in exceptional circumstances. Even a gift from a long-time personal friend may not be approved in all instances. If a House employee is offered a gift of more than minimal value from someone other than a close personal friend, the Committee may require approval of the employing Member as a condition of granting a waiver. As is true anytime a Member, officer, or employee seeks guidance from the Committee, a request for a waiver from the gift rule and the Committee's response will be held confidential.
Example 11. Staffer A becomes engaged and receives from her fiance a ring worth more than $250. No waiver is required for the ring. If, however, the couple expects that they may receive wedding gifts worth more than $250 from persons who are not relatives (as defined in Rule 43), the staffer should write to the Committee and request a waiver from the gift rule to allow her to accept such gifts. Alternatively, she may wait until she receives her wedding gifts, and if any appear to exceed the gift limit, she may write the Committee reasonably contemporaneously for permission to keep them.
House Rule 43, clause 4, prohibits Members, officers, and employees from receiving, either ``directly or indirectly,'' gifts worth more than minimal value. The term ``indirectly'' refers mainly to gifts to the spouse or dependents of a House official. As the Select Committee on Ethics observed: ``The issue is not simply one of preventing circumvention of the gifts provision, but also a common sense recognition that assets and holdings of a spouse and dependents are generally considered to be shared by the partner, i.e., the Member, officer, or employee.'' (FOOTNOTE 30) Therefore, a gift to an official's spouse or dependent is considered an indirect gift to that official unless circumstances make it clear that the gift is truly independent of the spouse's or dependent's relationship to the Member or employee. When the gift is truly independent, considerations of privacy and equal rights control, and the gift rule does not apply. Similarly, job-related benefits (e.g., insurance coverage) provided to a spouse and members of the spouse's family without regard to their identity are not gifts. (FOOTNOTE 31) Since they are not gifts, they may be accepted and need not be reported on financial disclosure forms. (FOOTNOTE 32) ``However, when it is apparent that the gift may not have been offered but for the donee's relation to a Member, officer, or employee, such a gift would constitute an indirect gift to the Member, officer, or employee.'' (FOOTNOTE 33)
(FOOTNOTE 30) Advisory Opinion No. 9, supra note 19.
(FOOTNOTE 31) See Chapter 3 for further discussion of spousal employment and the gift rule.
(FOOTNOTE 32) See Chapter 4 for discussion of financial disclosure requirements.
(FOOTNOTE 33) Advisory Opinion No. 9, supra note 19.
Example 12. Member A is throwing a Sweet 16 party for her daughter. Lawyer Z, who does not know A's daughter but represents a trade association, offers to buy the daughter a convertible. The car is an excessive, indirect gift to the Member and must be declined.
Example 13. Member B'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 $250 per person. This retreat would be offered to Mrs. B regardless of the identity of her spouse. Therefore, Mrs. B may accept. Since the weekend is a job-related benefit offered to Member B only because of and through his wife, he may also accept.
Example 14. Staffer C'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. Staffer C may accept the free flights.
A spouse does not have a $250 gift limit apart from that of the Member. Either a gift to a Member's spouse is truly independent, in which case it does not count at all for purposes of the gift rule, or it is deemed an indirect gift to the Member and counts against the Member's $250 cap. However, simultaneous gifts, such as tickets to a sporting or theatrical event, to a Member (or employee) and spouse or dependents, are treated as separate gifts. Thus, for example, tickets with a face value of $60 apiece offered to a Member and spouse would be considered two $60 gifts (falling under the $100 exemption) rather than one $120 gift.
In order for simultaneous gifts to be treated separately, the donor must choose the recipients. An unrestricted gift of several items is valued at its total worth.
Example 15. Lobbyist Z offers Staffer A four tickets to the Capital Centre, each with a face value of $30, saying, ``Here are four tickets to the hockey game for you and Staffer B and your spouses.'' The lobbyist has made four separate simultaneous gifts, each worth $30. The two staffers and their spouses may accept.
Example 16. Lobbyist Z offers Staffer C four tickets to the Capital Centre, each with a face value of $30, saying, ``Here are four tickets to the hockey game. Take whomever you like, and have a good time.'' The lobbyist has made one gift worth $120 to Staffer C. Staffer C may accept only if the tickets will not bring the total amount that she has received from Z in that calendar year to more than $250.
Example 17. Lobbyist Y offers Staffer D two tickets to the premiere of a musical, saying, ``Here are two tickets for you and your wife.'' Each ticket has a face value of $150. Even though the tickets are treated as simultaneous gifts to Mr. and Mrs. D, each gift is worth more than $100, and the gift to Mrs. D is considered an indirect gift to D. Therefore, D may not accept both tickets unless he buys down their total value to $250 (assuming no previous nonexempt gifts from Y to D that year).
Members, officers, and employees may accept travel expenses from private sources in connection with ``substantial participation'' events or fact-finding.
By definition, compensation for services rendered is not a gift. The Select Committee on Ethics reasoned that transportation, food, and lodging provided to enable a Member or employee to attend a conference or similar event would not be considered gifts if the Member or employee substantially participated in the event. Accordingly, the Member or employee must provide services of roughly equivalent value to the expenses received, by, for example, addressing an audience or participating on a panel. The services must be more than perfunctory. Merely visiting a site would not be viewed as ``equal consideration.'' (FOOTNOTE 34) Moreover, the payor must be directly associated with the event. Thus the Committee found a violation of the gift rule where a Member accepted travel expenses from an organization that was not the sponsor of his speaking engagements. (FOOTNOTE 35) The Member or employee may also accept travel expenses for a spouse or one other family member. (FOOTNOTE 36)
(FOOTNOTE 34) House Select Comm. on Ethics, Advisory Opinion No. 2 (Apr. 6, 1977), reprinted in Final Report, H. Rep. No. 95-1837, supra note 18, app. at 58-60, and at the end of this chapter. But see Advisory Opinion No. 8 (May 11, 1977) (reprinted in H. Rep. No. 95-1837 app. at 69-71, and at the end of this chapter) with respect to criteria for permissible privately funded fact-finding trips.
(FOOTNOTE 35) H. Rep. No. 100-46, supra note 10, at 5-6.
(FOOTNOTE 36) See discussion of Travel Expenses for Family Members, at page 43, below.
As long as the Member or employee is providing substantial services to the sponsor, he or she may accept expenses to travel anywhere, including the home district (providing acceptance of the travel is otherwise consistent with Rule 45 (FOOTNOTE 37) ). The Select Committee, in its Final Report, noted that the payment of travel expenses and waiver of an entrance fee for a Member of the House to participate as a celebrity in a golf tournament would not be considered a gift ``since the Member is, in effect, rendering a service on behalf of the foundation sponsoring the tournament.'' (FOOTNOTE 38) As of January 1, 1991, however, no Member may accept any payment beyond travel expenses or a registration fee waiver for any speech or appearance since any additional payment would be construed as a banned honorarium. (FOOTNOTE 39)
(FOOTNOTE 37) House Rule 45 bans private supplements to Members' official budgets. If, for example, a Member were giving speeches at private expense in the home district every week, and thereby effectively getting private sources to pay for substantial amounts of the Member's travel to and from the district, concerns would arise under this rule. Rule 45 is discussed in detail in Chapter 6 of this Manual.
(FOOTNOTE 38) H. Rep. No. 95-1837, supra note 18, at 9.
(FOOTNOTE 39) Outside earned income restrictions in general and the honoraria ban in particular are discussed in Chapter 3 of this Manual.
Example 18. Charitable Foundation Z invites Member A to be a celebrity participant in its golf tournament in California. A will be listed in the tournament's program and promotional materials as one of the featured players with whom other golfers may play if they make the requisite donation to the charity. Since A's participation is helping the charity to raise funds, A may accept up to 4 days' expenses from the sponsoring foundation to attend.
Example 19. Charitable Foundation Y holds a golf tournament featuring athletes and actors, but no Members of Congress, as the celebrity draws. Corporation X makes a substantial donation to the foundation and invites Member B to be X's guest at the tournament. X offers to pay B's airfare and all expenses for the weekend of the tournament. X's offer represents a potential gift to B and must be declined to the extent its value (together with that of previous nonexempt gifts to B from X that year) exceeds $250.
The Select Committee on Ethics also determined that necessary expenses (not entertainment) for a ``fact-finding'' tour, even when no services are rendered by a Member or employee, would not be a prohibited gift if the trip is taken for educational purposes directly related to official duties. Such an event must not be for the personal pleasure or entertainment of Members or employees, but rather, to allow them ``to become better informed regarding subject matters closely related to their official duties.'' (FOOTNOTE 40) The Select Committee noted that a fact-finding event for educational purposes might include an oil company sponsoring ``an inspection tour of its offshore oil drilling platform,'' a lumber company arranging ``a demonstration of new logging methods in a remote area,'' or a foreign foundation inviting Members to attend a program ``designed to promote better understanding and improve U.S. relations with that country.'' (FOOTNOTE 41)
(FOOTNOTE 40) Advisory Opinion No. 8, supra note 34.
(FOOTNOTE 41) Id.
While the responsibility rests with the Member or employee to determine whether a particular event or activity is directly related to official duties, the Select Committee emphasized that ``fact-finding event'' is intended to be interpreted narrowly in light of the ``spirit'' of the House rules. The Select Committee determined that travel expenses provided by representatives of the maritime industry to attend a ship-launching (FOOTNOTE 42) and inaugural flights of airline routes, (FOOTNOTE 43) for example, would not be considered fact-finding, and thus would be gifts under Rule 43, clause 4. Consistent with these interpretations, and in keeping with the letter and spirit of the Rule, (FOOTNOTE 44) the sponsor of a fact-finding trip should be directly and immediately associated with the event or location being visited. (FOOTNOTE 45)
(FOOTNOTE 42) Id.
(FOOTNOTE 43) Advisory Opinion No. 3 (Apr. 6, 1977), reprinted in Final Report, H. Rep. No. 95-1837, supra note 18, app. at 60-61, and at the end of this chapter.
(FOOTNOTE 44) See House Rule 43, cl. 2.
(FOOTNOTE 45) See H. Rep. No. 100-46, supra note 10, at 5-6.
Since official allowances are provided to cover district travel expenses of both Members and their staff, one ordinarily cannot accept expenses for private fact-finding trips to or within one's own district. An exception exists where the Member or employee is traveling as part of a larger delegation. In that situation, the rules do not require the official to separate from the group to avoid going into the district.
This Committee has also interpreted fact-finding travel in light of House Rule 45, which prohibits the infusion of private subsidies -- whether in-kind services or monetary -- into the operation of a congressional office. Rule 45 applies to committees of the House, as well as individual Member offices. The purpose of fact-finding, as noted above, is to explore matters directly related to official duties. If, on the other hand, the purpose of an undertaking is to perform official duties, such as general oversight activities within a committee's jurisdiction, the cost should be borne by the committee or congressional office itself. Rule 45 precludes private subsidies of official activities. Thus, in the 99th Congress, this Committee found that a Member violated Rule 45 when he accepted free flights on corporate aircraft for official travel. (FOOTNOTE 46) The Member reimbursed the corporation.
(FOOTNOTE 46) House Comm. on Standards of Official Conduct, Investigation of Travel on Corporate Aircraft Taken by Representative Dan Daniel, H. Rep. No. 99-470, 99th Cong., 2d Sess. (1986).
The Ethics Reform Act amended the policy on travel expenses related to privately-funded substantial participation and fact-finding events to ``prohibit the acceptance of such expenses for more than 4 consecutive days in the case of domestic travel and 7 consecutive days (excluding travel days) in the case of foreign travel.'' (FOOTNOTE 47)
(FOOTNOTE 47) Pub. L. No. 101-194, supra note 13, sec. 805(a)(1), reprinted in 2 U.S.C. sec. 29d note.
The Bipartisan Task Force recommended these limitations out of concern for ``the public perception that such trips often may amount to paid vacations for the Member and his family at the expense of special interest groups.'' (FOOTNOTE 48) In keeping with the spirit of these changes, the Committee, while empowered to grant waivers from these time limits, only does so in truly exceptional cases. That a particular conference happens to last longer than 4 or 7 days will ordinarily not suffice as grounds for a waiver. An example of a situation that would warrant a waiver would be where the Member's destination was so remote as to receive air service only once every ten days.
(FOOTNOTE 48) Bipartisan Task Force Report, supra note 7, at 8, 135 Cong. Rec. H9255.
The rule limits days, not dollars. Barring a waiver, congressional travelers may not accept expenses for more than the 4 or 7 days, regardless of the value of the excess. Thus, accepting expenses for the 5th or 8th day is flatly banned, even if the extra expenses total less than $250.
The Select Committee on Ethics emphasized that only ``necessary'' expenses may be accepted. (FOOTNOTE 49) As long as the travel falls within the specified limits, however, it is the responsibility of the Member, in conjunction with the sponsor, to determine how many days are necessary to accomplish the trip's goals and what type of transportation and lodging are appropriate. The traveler may generally accept expenses to or from Washington, D.C. or another duty station. The traveler may not accept additional expenses for stopovers that are unrelated to the purpose of the trip.
(FOOTNOTE 49) Advisory Opinions No. 2 and 8, supra note 34.
Example 20. Member A, from the Midwest, is invited to give a speech in Boston at the beginning of a District Work Period. She may accept airfare from Washington to Boston and then from Boston back to her district. She may not accept additional airfare to return home by way of Los Angeles since that is not the normal route.
The 4-day limit on ``domestic'' travel applies only to travel within the contiguous 48 states. All other locations, including Alaska and Hawaii, are governed by the 7-day rule. (FOOTNOTE 50) Four days means four 24-hour periods. Thus the traveler must begin his or her return trip (or stop accepting expenses) within 96 hours of setting out. For trips outside the contiguous 48 states, the Act allows 7 days exclusive of travel days. If part of a day is spent in transit to the foreign locale, that whole day does not count towards the seven. Once the traveler has arrived, however, additional travel within the foreign destination or between close countries does not extend the limit.
(FOOTNOTE 50) See Bipartisan Task Force Report, supra note 7, at 11, 135 Cong. Rec. H9256.
Example 21. Staffer B, who advises his employing Member on environmental issues, is invited by an oil company to inspect its offshore drilling facilities and pollution control preparedness. The company proposes to have the staffer fly from Washington to Alaska on Monday, tour facilities on Tuesday through Saturday, and fly back on Sunday. Assuming that the Member agrees that this trip is directly related to the staffer's official duties, the staffer may accept expenses for himself and his spouse.
Example 22. A private foundation invites Member C on a fact-finding trip to Eastern Europe. The itinerary includes cities in several different countries. Although some time will thus be spent in transit from one city to another, C may accept expenses for no more than 7 days in Eastern Europe, starting the day after C arrives at her first destination and continuing until the day before she departs.
Example 23. Member D begins a fact-finding trip to Chicago at 3 p.m. on Monday. D starts back to Washington on Friday, but, due to bad weather, his plane is still sitting on the runway at O'Hare Airport at 3 p.m. Since he began his return trip within 96 hours of setting out for Chicago, he has complied with the relevant time limits under the gift rule.
The Bipartisan Task Force indicated that ``the duration limits could not be circumvented in the case of different sponsoring organizations providing expenses for a single conference or meeting at one location. However, in some circumstances, it would be acceptable for a Member or employee to attend separate events with different sponsors at the same location and stay beyond the four-day limit.'' (FOOTNOTE 51) The Committee will only allow such ``stacking'' where the two events are truly independent. The applicable time limit commences with the beginning of each separate event with a separate host and independent invitation. The traveler in any event may only accept actual and necessary expenses. Thus an individual traveling alone may not accept reimbursement covering two round-trip tickets for two consecutive events in the same location. Similarly, an individual may not accept 8 days of lodging for giving 2 speeches in the same domestic city on the same day. Travelers may, however, extend trips at their own expense and on their own time and still accept return transportation. They may not accept additional reimbursements to cover the costs of personal travel.
(FOOTNOTE 51) Id.
Example 24. Organization Y invites Member E to speak in Miami on Tuesday. Organization Z invites Member E to participate in a conference in Miami from Thursday through Saturday. Member E may fly to Miami and stay over from Monday through Wednesday at Y's expense and accept expenses from Z for Thursday through Saturday night and her flight home on Sunday.
Example 25. A private university invites Staffer F to participate in a five day conference in Taiwan. After the conference ends, E wishes to take a week's vacation in Hong Kong. F may accept reimbursement from the university for his expenses in Taiwan and for the cost of round trip airfare to and from Taiwan. E may then continue his travels at his own expense.
The 4- and 7-day limits apply to all privately-funded travel, including, for example, that sponsored by charitable organizations, for fact-finding or substantial participation purposes. The 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. The limits also do not apply to campaign-related travel or other travel that is totally unrelated to the traveler's official duties or position with Congress.
Example 26. Staffer G's son is a Boy Scout. The Boy Scouts of America offer G an all expense paid week-long trip to the Grand Canyon if G will chaperone the scouts. Even though the trip exceeds 4 days, G may accept because the trip has nothing to with G's official duties or position.
The Ethics Reform Act further permits ``the acceptance of travel expenses for the spouse or other family member in connection with any substantial participation event or fact-finding activity.'' (FOOTNOTE 52) The clear intent of this provision is to allow the traveling Member, officer, or employee to bring one relative (as defined in House Rule 43) at the sponsor's expense on a fact-finding or substantial participation trip. An aide must be independently fact-finding or participating. Expenses for additional family members must be paid for out of personal funds or they will be deemed gifts, subject to the $250 limit.
(FOOTNOTE 52) Pub. L. No. 101-194, supra note 13, sec. 805(a)(2), reprinted in 2 U.S.C. sec. 29d note.
Example 27. Member A is invited by organization Y to give a speech in Dallas on Saturday. Organization Z issues a totally unrelated invitation to Member A to address its members in Dallas on Sunday. Each group offers to pay expenses for A and one family member. A may bring only one family member to Dallas at the sponsors' expense. She may not bring her husband at the expense of organization Y and her child at the expense of organization Z because such would evade the one-relative restriction of the Ethics Reform Act.
Example 28. Member B is invited to give a speech. The sponsoring organization offers the Member and his wife first class airfare. The Member would like to bring his two children as well. He may not trade in the two first class tickets for four coach tickets. Any expenses for the children that are paid by the sponsor will be deemed gifts subject to the $250 limit. Even if the sponsor would pay less for the four coach tickets than for the two first class tickets, to allow the Member to accept expenses for his wife and children would violate the spirit of the Ethics Reform Act.
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 whatever'' from a foreign state or a representative of a foreign government without the consent of the Congress. (FOOTNOTE 53) Congress has consented, through the vehicles of the Foreign Gifts and Decorations Act (FGDA) (FOOTNOTE 54) and the Mutual Educational and Cultural Exchange Act (MECEA) (FOOTNOTE 55) to the acceptance of certain gifts from foreign governments. The texts of both of these statutes are set out in the appendices to this Manual.
(FOOTNOTE 53) Art. I, sec. 9, cl. 8. A similar prohibition on the acceptance of ``emoluments,'' or compensation, is discussed in Chapter 3.
(FOOTNOTE 54) 5 U.S.C. sec. 7342.
(FOOTNOTE 55) 22 U.S.C. sec. 2458(a).
The FGDA authorizes acceptance of a gift of minimal value (FOOTNOTE 56) (currently $200) when tendered as a souvenir or mark of courtesy. It 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. (FOOTNOTE 57) 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 United States for use or disposal. (FOOTNOTE 58) Additionally, a Member or employee may accept a gift of an educational scholarship or medical treatment from a foreign government. (FOOTNOTE 59)
(FOOTNOTE 56) 5 U.S.C. sec. 7342(c)(1)(A) and (a)(5); see 41 C.F.R. sec. 101-49.001-.005.
(FOOTNOTE 57) 5 U.S.C. sec. 7342(c)(1)(B).
(FOOTNOTE 58) 5 U.S.C. sec. 7342(c)(2).
(FOOTNOTE 59) 5 U.S.C. sec. 7342(c)(1)(B).
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. An official may also accept expenses for foreign travel from private organizations, unaffiliated with any government, subject to the limitations of the gift rule as described above. Rule 43's time limits do not apply to travel authorized under the FGDA or MECEA.
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 Standards. The intent of this provision, as noted in the Committee's regulations authorizing acceptance of such travel, 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. (FOOTNOTE 60) 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. 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.
(FOOTNOTE 60) See House Comm. on Standards of Official Conduct, Regulations Applicable to Acceptance of Gifts and Decorations from Foreign Governments by Members, Officers, and Employees (hereinafter Foreign Gift Regs.) sec. 6(e). The regulations were first published Jan. 23, 1978, at 124 Cong. Rec. 452-53 and are reprinted, as amended, as an appendix to this Manual.
This Committee has issued regulations governing the acceptance of gifts under the FGDA. (FOOTNOTE 61) These regulations state that any such travel must relate ``directly to the official duties of the Member, officer, or employee.'' (FOOTNOTE 62) The regulations also allow the acceptance of travel expenses by an accompanying spouse or dependents. Travel or expenses ``may not be accepted merely for the personal benefit, pleasure, enjoyment or financial enrichment of the individual or individuals involved.'' (FOOTNOTE 63) 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. (FOOTNOTE 64) The Committee provides forms for this purpose. Tangible gifts of more than minimal value must be disclosed at the time of deposit of the gift with the Government. (FOOTNOTE 65) The FGDA and the Committee's implementing regulations also cover gifts from ``quasi-governmental'' organizations closely affiliated with, or funded by, a foreign government, as well as any international or multinational organizations with membership comprised of foreign governments.
(FOOTNOTE 61) Id.
(FOOTNOTE 62) Id. sec. 6(e).
(FOOTNOTE 63) Id.
(FOOTNOTE 64) Id. secs. 6(e), 7(b); 5 U.S.C. sec. 7342(c)(3).
(FOOTNOTE 65) Foreign Gift Regs., supra note 60, sec. 7(a); 5 U.S.C. sec. 7342(c)(3).
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.'' (FOOTNOTE 66) A Member or employee of the House may accept travel expenses from a foreign government in order to participate in an approved MECEA program. (FOOTNOTE 67) Expenses for MECEA trips are not considered gifts, either for the purposes of the House gift rule or the FGDA. Under MECEA, however, the traveling Member or employee may not accept travel expenses for a spouse or family member. (FOOTNOTE 68)
(FOOTNOTE 66) 22 U.S.C. sec. 2452(a)(2)(i).
(FOOTNOTE 67) 22 U.S.C. sec. 2458a(1).
(FOOTNOTE 68) Id.
Example 29. A private foundation invites Member A on a fact-finding trip to China. Member A may accept expenses for travel to and from China and up to 7 days' food and lodging within China for himself and his wife, under the gift rule. He must disclose the trip under the category of Reimbursements on his annual Financial Disclosure form. (FOOTNOTE 69)
(FOOTNOTE 69) See Chapter 4 for details of financial disclosure requirements.
Example 30. The Chinese Agricultural Ministry invites the Members of the Agriculture Committee on a ten 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 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 31. A public university in China invites Member B 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. Member B may accept expenses for travel to and from China and related expenses for her two week stay. If she wishes to bring her husband, she must do so at personal expense. She must disclose the trip under the category of reimbursements on her annual Financial Disclosure form.
House Rule 43, clause 7, requires that Members treat the proceeds of any testimonial dinners or other fundraising events as campaign contributions, subject to all the restrictions on campaign funds. Such funds must be disclosed as required by Federal Election Commission regulations (FOOTNOTE 70) and used by the Member only for bona fide campaign or political purposes. (FOOTNOTE 71) The money may not be treated as unrestricted personal gifts. House rules prohibit the conversion of campaign funds either to personal use or to official congressional purposes. (FOOTNOTE 72)
(FOOTNOTE 70) Title 11, C.F.R.
(FOOTNOTE 71) House Rule 43, cl. 6. See generally Chapter 7 of this Manual (Campaign Funds and Practices).
(FOOTNOTE 72) House Rules 45 and 46, cl. 4.
The restriction of Rule 43, clause 7, derives from H. Res. 287, 95th Congress, 1st Session (1977). The rule formerly allowed Members to use such proceeds for other than campaign purposes if advance notice had been given to the donors. In recommending the change, the Commission on Administrative Review stated: ``Proceeds from testimonial dinners should not be converted to funds for personal use under any circumstances.'' (FOOTNOTE 73)
(FOOTNOTE 73) Financial Ethics, H. Doc. No. 95-73, supra note 19, at 14.
The House Select Committee on Ethics determined that a direct mail solicitation by a Member or a Member's spouse constituted a ``fund-raising event'' for the purposes of Rule 43, clause 7. Proceeds from such a solicitation must be treated as campaign contributions that may not be converted to personal use by the Member. In reaching this decision, the Select Committee noted that a major purpose of revisions to the Code of Official Conduct was to prevent Members from ``cashing in'' on their official positions in Congress:
In the age of computerized mass mailings, it is unnecessary for people to gather together in a common place on a particular date to constitute a ``fund-raising event.''
A major thrust of the provisions contained in the new House Rules adopted March 2, 1977, was to severely limit the potential for Members to ``cash in'' on their positions of influence for personal gain. Therefore, a limitation on outside earned income was proposed and adopted. A proposal to abolish unofficial office accounts was offered and adopted. A proposal to prohibit the conversion of political funds to personal use was adopted. And the proposal discussed above to treat all proceeds from fund-raising events as campaign contributions was also adopted. Therefore, it would appear that a proposal to solicit funds for personal use would be contrary to the ``spirit'' of the House Rules adopted pursuant to H. Res. 287. (FOOTNOTE 74)
(FOOTNOTE 74) House Select Comm. on Ethics, Advisory Opinion No. 4 (Apr. 6, 1977), reprinted in Final Report, H. Rep. No. 95-1837, supra note 18, app. at 61-62, and at the end of Chapter 8 of this Manual. See also House Rule 43, cl. 2 (on adhering to the spirit as well as the letter of House rules).
The Select Committee on Ethics also found that a Member may not accept for unrestricted personal use the proceeds of a fundraiser conducted by a group independent of the Member: ``[I]t is irrelevant whether the Member himself solicits these funds, or whether the Member accepts funds for personal use that are solicited on his behalf by an independent committee.'' (FOOTNOTE 75)
(FOOTNOTE 75) House Select Comm. on Ethics, Advisory Opinion No. 11 (May 11, 1977), reprinted in Final Report, H. Rep. No. 95-1837, supra note 18, app. at 76-77, and at the end of Chapter 8 of this Manual.
The Committee on Standards 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. (FOOTNOTE 76) The Committee deems the protection of a Member's reputation and presumption of innocence to be a valid political purpose. These funds remain campaign contributions, however, subject to all the restrictions on other campaign contributions, including the reporting requirements, contribution limits, and prohibitions on corporate, labor union, and government contractor contributions.
(FOOTNOTE 76) This conclusion accords with rulings of the Federal Election Commission. See FEC Advisory Op. 1986-9, 2 Fed. Election Camp. Fin. Guide (CCH) para.5851, at 11,267 (Apr. 22, 1986); FEC Advisory Op. 1977-39, 1 id. para.5264, at 10,211 (Aug. 26, 1977).
Alternatively, a Member, officer, or employee may choose to set up a ``legal defense 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.) The Select Committee on Ethics established an exemption to Rule 43, clause 7, such that funds raised specifically for legal defense are not deemed to be campaign contributions. (FOOTNOTE 77) Such legal defense funds are, however, subject to the gift rule.
(FOOTNOTE 77) See Final Report, H. Rep. No. 95-1837, supra note 18, at 15. See also FEC Advisory Op. 1983-37, 1 Fed. Election Camp. Fin. Guide (CCH) para.5737, at 11,013 (Nov. 18, 1983); FEC Advisory Op. 1983-21, id. para.5725, at 10,994 (Sept. 20, 1983); FEC Advisory Op. 1979-37, id. para.5419, at 10,450 (July 19, 1979).
Under the gift rule, a Member, officer, or employee must get a prior written waiver from the Committee in order to accept contributions to a legal defense fund of more than $250 a year from any source other than a relative. The Committee will consider a waiver request where the fund complies with certain general guidelines: The fund should be set up as a trust, to be administered by an independent trustee who will oversee fundraising. The trustee may not have any family, business, or employment relationship with the trust's beneficiary. Trust funds may be used only for legal expenses, except that any excess funds must be returned to contributors on a pro rata basis or donated to charity. Under no circumstances may the beneficiary of a legal defense trust fund convert the funds to any other purpose. No individual or organization may contribute more than $5,000 in a single year.
Any individual who files a financial disclosure report must disclose as a gift any contribution to his legal defense fund of more than $250 in a calendar year from a single source, unless the Committee grants a publicly available waiver from the financial disclosure requirement. Contributions to legal defense funds do not count towards limits on outside earned income.
As part of the Ethics Reform Act of 1989, Congress enacted a new, government-wide ban on solicitation, codified at 5 U.S.C. sec. 7353. This new provision for the first time limited not only what government officials could accept but also that for which they could ask.
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.
These statutory restrictions extend to ``anything of value,'' regardless of whether the official receives a personal benefit. Subsection (b) authorizes this Committee to issue implementing rules or regulations for the House, ``providing for such reasonable exceptions as may be appropriate.'' The House gift rule defines that which Members, officers, and employees may accept. In defining that which they may solicit, the Committee has been guided by other preexisting laws, rules, and regulations. For example, a highly developed body of law regulates campaign financing. The Committee does not construe 5 U.S.C. sec. 7353 to prevent a Member, officer, or employee of the House from raising campaign funds or soliciting other items to the extent their acceptance is permitted under applicable laws, rules, or regulations, provided that no individual solicits, directly or through others, any personal or financial benefit unless the Committee grants prior written approval in exceptional circumstances.
Members are often asked to assist charities in their fund-raising efforts. The Committee has determined that Members, officers, and employees of the House may solicit funds on behalf of charitable organizations qualified under sec. 170(c) of the Internal Revenue Code, (FOOTNOTE 78) provided that no official resources are used, no official endorsement is implied, and no direct personal benefit results. No solicitation may bear official letterhead, the Great Seal, or the terms ``Congress of the United States,'' ``House of Representatives,'' or ``official business.'' (FOOTNOTE 79) Moreover, regulations of the House Office Building Commission prohibit soliciting and other nongovernmental activities in facilities of the House of Representatives. (FOOTNOTE 80) Questions regarding solicitations on behalf of entities that are not charities qualified under sec. 170(c) should be addressed to the Committee.
(FOOTNOTE 78) 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. sec. 170(c). By way of comparison, the more familiar section 501(c)(3) of the Tax Code lists organizations that are themselves exempt from taxation. Section 170(c) basically encompasses contributions to organizations that are tax exempt under section 501(c)(3) plus contributions for exclusively public purposes to units of Federal, state, or local government.
(FOOTNOTE 79) 18 U.S.C. sec. 713; House Rule 43, cl. 11.
(FOOTNOTE 80) The regulations of the House Office Building Commission are reprinted at the end of Chapter 6 of this Manual.
A Member, officer, or employee may serve as a member or chairman of the board of directors of a charitable organization. Members and senior staffers (those earning above the GS-15 level, that is, an annual salary of $77,080 in 1992) may not be compensated for such service. (FOOTNOTE 81) The name of the Member, officer, or employee may appear on the organization's letterhead and the official may sign letters on the organization's behalf, provided that these letters do not convey the impression that the United States Congress is endorsing the organization. (FOOTNOTE 82) A Member may use the title Representative, Congressman or Congresswoman, or Member of Congress in this context. The official should discourage any suggestion that donors will receive favorable consideration in official matters.
(FOOTNOTE 81) Outside earned income restrictions are discussed in detail in Chapter 3 of this Manual.
(FOOTNOTE 82) See House Comm. on Standards of Official Conduct, Advisory Opinion No. 5, reprinted in 125 Cong. Rec. 7286 (Apr. 4, 1979) and at the end of Chapter 9 of this Manual.
Example 32. The United Way asks Member A to be honorary chair of its annual federal campaign. Member A may be listed on The United Way's stationery as ``The Honorable A, Member of Congress,'' and may sign solicitation letters on United Way stationery, without seeking special permission from the Committee. Member A may not assign congressional staff to assist in United Way fundraising on official time. Staff may choose to volunteer on their own time.
Example 33. Member B is asked to help raise funds for families in the district who have lost their homes in a hurricane. The fundraising effort is not qualified under sec. 170(c) of the tax code. Member B must seek permission from the Committee before soliciting funds for this purpose.
Example 34. Staffer C hears that Lobbyist Z often has tickets to Redskins games that he hands out in various congressional offices. C may not call up Z and ask for free tickets, since this would be solicitation for personal benefit.
Example 35. Staffer D would like to throw a party in honor of D's employing Member's birthday. D may not call up lobbyists to solicit contributions to pay for the party.
Section 7353 generally bars solicitation and acceptance of gifts, except as permitted by the Committee on Standards. 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 House, 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.'' (FOOTNOTE 83) An 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.'' (FOOTNOTE 84) The United States Court of Appeals for the District of Columbia Circuit discussed the distinguishing features of the two sections:
(FOOTNOTE 83) 18 U.S.C. sec. 201(b)(2)(A).
(FOOTNOTE 84) 18 U.S.C. sec. 201(c)(1)(B).
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. (FOOTNOTE 85)
(FOOTNOTE 85) United States v. Brewster, 506 F.2d 62, 72 (D.C. Cir. 1974).
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. 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.'' (FOOTNOTE 86) A bribe induces an official act; an illegal gratuity rewards an official act; a gift has no connection to any official act.
(FOOTNOTE 86) Black's Law Dictionary 688 (6th ed. 1990).
While responsibility for enforcing this statute rests with the Justice Department, in the view of this Committee, these provisions do not extend to token gifts of appreciation or goodwill, intended as courtesy, and consisting of either:
* perishable items (e.g., candy or flowers) that the Member or employee shares with staff and constituents or donates to charity, or
* decorative items that are displayed in the office or donated to charity.
This view is similar to that proposed in regulations of the executive branch's Office of Government Ethics. (FOOTNOTE 87)
(FOOTNOTE 87) See Standards of Ethical Conduct for Employees of the Executive Branch; Proposed Rule, 56 Fed. Reg. 33798 (July 23, 1991), to be codified at 5 C.F.R. sec. 2635.205(a)(2).
Example 36. Lobbyist Z offers Member A a substantial campaign contribution if A will introduce certain legislation. Z has violated the bribery law, as will A if A accepts.
Example 37. Member B introduces H.R. 007 and manages the bill through passage solely because B believes the legislation will be good for the country. Lobbyist Y also favors the legislation because it will benefit his clients. Lobbyist Y sends Member B a color television set, with a note saying, ``In appreciation for your good work on H.R. 007.'' Member B must send the television back as it is an illegal gratuity.
Example 38. In mid-December, a trade association sends a basket of fruit to Member C's office, with a note saying, ``Season's Greetings to Member C and staff.'' The fruit is an acceptable gift.
Example 39. Caseworker D helps E, a new immigrant to the district, get a ``green card.'' The following week, D receives a crystal vase, with a note from E saying, ``I'll never be able to repay you for what you've done for me.'' D must return the vase; it is an illegal gratuity.
Example 40. Caseworker F helps constituent G with her social security claim. In gratitude, G brings a box of home-baked cookies to the office for F and the rest of the staff. F may accept the cookies.
Example 41. Representative H's office helps constituent J with a Medicare claim. In gratitude, J embroiders H's name on a small piece of fabric, for H to display in the office. H may accept the embroidery as a token decorative item.
Example 42. A citizens' group sends Member K a lamp, with a note saying, ``Thank you for being a responsible voice for good government.'' Since the gift is not tied to any specific official act, Member K may accept it as long as its value comports with the gift limit.
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. (FOOTNOTE 88) A person found guilty of seeking or receiving an illegal gratuity may be fined and/or imprisoned for up to two years. (FOOTNOTE 89) Violation of these laws may also lead to disciplinary action by the House.
(FOOTNOTE 88) 18 U.S.C. sec. 201(b).
(FOOTNOTE 89) 18 U.S.C. sec. 201(c).
In the 1980's, the Committee on Standards conducted a number of investigations into allegations that Members of Congress accepted bribes or illegal gratuities. In the most recent case, the Member was alleged to have received not cash, but free vacation trips from a creditor of a government contractor on whose behalf the Member had intervened with local authorities. (FOOTNOTE 90) In the 96th and 97th Congresses, the Committee investigated three Members on charges, arising out of the Department of Justice's ``ABSCAM'' probe, that they had accepted money in exchange for promising to aid purported wealthy foreigners seeking to immigrate to the United States. (FOOTNOTE 91) Also in the 96th Congress, the Committee investigated a Member for allegedly receiving payments, either directly or through an assistant, from a series of individuals over a five year period, in exchange for agreements to attempt to influence various Government agencies. (FOOTNOTE 92) These cases resulted in one expulsion (FOOTNOTE 93) and four resignations from Congress.
(FOOTNOTE 90) See In the Matter of Representative Mario Biaggi, H. Rep. No. 100-506, 100th Cong., 2d Sess. (1988). The Committee recommended expulsion, but the Member resigned before the House could act.
(FOOTNOTE 91) See In the Matter of Representative Michael J. Myers, H. Rep. No. 96-1387, 96th Cong., 2d Sess. 5 (1980); In the Matter of Representative John W. Jenrette, Jr., H. Rep. No. 96-1537, 96th Cong., 2d Sess. 10 (1980); In the Matter of Representative Raymond F. Lederer, H. Rep. No. 97-110, 97th Cong., 1st Sess. 16 (1981).
(FOOTNOTE 92) In the Matter of Rep. Daniel J. Flood, H. Rep. No. 96-856, 96th Cong., 2d Sess. 125 (1980).
(FOOTNOTE 93) See 126 Cong. Rec. 28953-78 (Oct. 2, 1980).
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 House 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. (FOOTNOTE 94) 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. (FOOTNOTE 95) A Member, officer, or employee should, therefore, be wary of accepting any gifts, favors, contributions, or entertainment from persons whom the Member or staff have assisted with job applications or other dealings with the agencies of the Federal Government.
(FOOTNOTE 94) 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. sec. 205(a). This statutory provision is discussed in Chapter 3 of this Manual.
(FOOTNOTE 95) 18 U.S.C. sec. 211.
Federal law bars Government employees from giving gifts to their official superiors. (FOOTNOTE 96) This statute similarly precludes soliciting contributions from other employees for gifts to superiors, making donations as gifts to superiors, and accepting gifts from employees making less pay than oneself. The Ethics Reform Act (section 301) amended this law to authorize supervising ethics offices (the Committee on Standards for the House) to implement and create exceptions to the law. The amended law specifically notes the possibility of ``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.'' (FOOTNOTE 97) In addition to marriage and retirement, the Committee also recognizes birthdays, anniversaries, the birth of children, holidays, and other like events as occasions when gifts are traditionally given and this statute would not apply. Of course, House Members and employees still may not accept gifts worth more than $250 from any one source in a calendar year, absent a waiver.
(FOOTNOTE 96) 5 U.S.C. sec. 7351.
(FOOTNOTE 97) Id. sec. 7351(c).
Generally, for the purpose of the gift rule, items are valued at their fair market value, and at their retail, rather than wholesale prices. Often an item may be priced differently at different stores. In determining whether a particular gift is acceptable, a Member, officer, or employee may use the lowest price at which the item is available to the general public.
The Select Committee on Ethics offered guidelines in its Final Report with respect to the valuation of certain gifts. For example, the gift of a ticket to a charitable or political fundraising dinner would be valued at the cost of the dinner rather than the cost of the ticket to the purchaser. The value of a courtesy pass to an amusement park would be determined by the number of times the pass was actually used. Similarly, an honorary membership to a country club is valued according to its actual use. Thus, if the membership were never used, it would have no value. However, if the Member or employee and family regularly enjoyed the benefits of the country club, the membership gift would be valued at the rate of normal dues and initiation fees for that club. On the other hand, a gift of a season ticket to an athletic event or the theater is generally valued at the cost of the ticket, regardless of actual use, ``since it is readily transferable.'' (FOOTNOTE 98)
(FOOTNOTE 98) H. Rep. No. 95-1837, supra note 18, at 9.
A gift of transportation on a private aircraft is generally valued at the lowest commercial first class rate between the two cities. If there is no first class rate, 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.
The gift rule limits the value of gifts ``from any person.'' If a group of individuals jointly gives a present to a Member, officer, or employee, the gift's total value is apportioned among the group. An organization, however, may not circumvent the gift limit by purporting to give an item on behalf of its employees or members.
Example 43. Ten friends of Member A chip in $30 apiece to buy A 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 44. A trade association with 100 employees offers Member B a gift worth $1000, with a note saying, ``From the employees of Association Z.'' Member B may not accept.
In construing this principle, as always, Members, officers, and employees must observe both the letter and the spirit of the gift rule. (FOOTNOTE 99) 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 theater ticket with a face value of $95 without counting it toward the $250 cap; accepting a $95 ticket from the same source every week, however, would violate the spirit of the rule.
(FOOTNOTE 99) See House Rule 43, cl. 2; see also Code of Ethics for Government Service para.5, supra note 2.
Members and staff frequently receive invitations to receptions and parties, some of which are held in their honor. As long as the identity of the sponsor (that is, the payor) is made clear to all participants (e.g., on the invitations), a party nominally ``in honor of'' a Member or group of Members is not generally considered a gift to the honoree(s). Food and beverages enjoyed at these functions are considered to benefit all those attending. The Members being recognized should not identify themselves as hosts, however, or receive any particular advantage from the party. If they do, the cost of the entire event could be viewed as a gift. So, for example, a Member with a strong record on environmental issues might be honored at a reception hosted by a lobbying group interested in those issues without raising questions under the gift rule. If the same Member were an amateur photographer, however, and the event was set up to provide the Member with a forum for selling his or her photographs of wildlife, the Committee could find that the entire cost of the reception was a gift from the organization to the Member.
Sometimes a Member will receive a gift the unusual nature of which makes valuation difficult. Examples have ranged from works of art to antiques to items emblematic of the donor's cultural group. It is these unusual gifts, of artistic value, that Members often feel most awkward about rejecting. The gift may represent the personal efforts of an individual or may be symbolic of the unique esteem of a constituent group. Where such a gift exceeds $250 in value, a Member may under certain circumstances accept it for the sole purpose of donating it, for example, to a museum in the home district or to the Architect of the Capitol for display in Washington. The Committee on House Administration also houses a Fine Arts Board, which accepts art work of less established value. Donations of these kinds may be loaned back to the Member, on a temporary basis, for display in the Member's office. The Committee on Standards recommends that any Member with a question about a particular gift write for an advisory opinion.
Under the Ethics in Government Act of 1978, as detailed in Chapter 4, Members and certain employees of the House must disclose information on annual financial statements, including the donor, description and value of all gifts aggregating $250 or more from a single source in a single year. (FOOTNOTE 100) Additional information on certain gifts received by the spouse or dependent of the Member or employee may also need to be filed. (FOOTNOTE 101) 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. (FOOTNOTE 102)
(FOOTNOTE 100) 5 U.S.C. app. 6, sec. 102(a)(2).
(FOOTNOTE 101) 5 U.S.C. app. 6, sec. 102(e)(1).
(FOOTNOTE 102) Foreign Gift Regs., supra note 60, secs. 6(b), (e), 7.
(FOOTNOTE 1) This memorandum has been updated to reflect law and rule changes made by technical amendments to the Ethics Reform Act of 1989, Pub. L. No. 101-280, 104 Stat. 149 (1990).
TO: All Members, Officers, and Employees of the U.S. House of Representatives
FROM: Committee on Standards of Official Conduct Julian C. Dixon, Chairman John T. Myers, Ranking Minority Member
Since the enactment of the Ethics Reform Act of 1989, the Committee on Standards of Official Conduct has received an increased number of inquiries regarding travel and travel restrictions. Some of the inquiries indicate that confusion or uncertainty may exist regarding the circumstances and guidelines relevant to travel. Therefore, the purpose of this Notice is to provide general guidance on the matter. Any questions regarding the matters discussed below should be addressed to this Committee's Office of Advice and Education at 225-3787.
There are several different types of travel in which Members and staff of the House of Representatives frequently engage. To assist Members and staff, listed below are nine different types of travel. For each, there is a brief description of: the type of travel; who may accompany the House traveler; duration limitations which apply, if any; applicable disclosure requirements; and the appropriate supervising authority.
Following the listing of travel and applicable guidelines is a discussion of several recent policy decisions made by the Committee regarding the time limits on travel imposed by the Ethics Reform Act.
I. OFFICIAL CONGRESSIONAL TRAVEL: MEMBER'S OFFICE
Description: In support of the Member's official and representational duties to the district from which elected.
Travelers: Only the Member and his or her employees.
Duration Limit: None under House rules.
Disclosure: None by traveler; included in Clerk's report.
Supervising Authority: Authorized by the Member; subject to Committee on House Administration regulations.
II. OFFICIAL CONGRESSIONAL TRAVEL: DOMESTIC COMMITTEE BUSINESS
Description: In support of official Committee business, including the conduct of investigations, hearings, meetings, and studies of such Committee.
Travelers: Only Committee Members and employees except as specifically authorized in writing by the Speaker.
Duration Limit: None under House rules.
Disclosure: None by traveler; included in Clerk's Report.
Supervising Authority: Authorized by the Committee Chairman approving the travel; subject to Committee on House Administration regulations.
III. OFFICIAL CONGRESSIONAL TRAVEL: FOREIGN COMMITTEE BUSINESS
Description: In support of official business, requested by the Committee Chairman under 22 U.S.C. sec. 1754, et seq.
Travelers: As authorized by Department of State (commercial travel) or Defense Department (military travel) regulations.
Duration Limit: None under House rules.
Disclosure: Itemized report by traveler to the Committee Chairman approving the travel.
Supervising Authority: State and Defense Departments.
IV. TRAVEL PROVIDED BY FEDERAL, STATE, OR LOCAL GOVERNMENTS
Description: Provided on an official basis by a government.
Travelers: As authorized by sponsoring government.
Duration Limit: None under House rules.
Disclosure: None.
Supervising Authority: Sponsoring government organization.
V. TRAVEL PROVIDED BY A FOREIGN GOVERNMENT
Description: As a general rule, travel provided by a unit of foreign governmental authority or a multinational organization, may only be accepted when the travel takes place totally outside the United States. The only exception to this rule is travel in connection with an approved exchange program.
Travelers: Traveler may be accompanied by spouse and dependents.
Duration Limit: None under House rules.
Disclosure: Special ``Form for Disclosing Gifts from Foreign Governments'' must be filed with the Committee on Standards of Official Conduct within 30 days of departing host country.
Supervising Authority: Committee on Standards of Official Conduct administers the Foreign Gifts and Decorations Act.
VI. CAMPAIGN AND POLITICAL TRAVEL
Description: Travel for a bona fide campaign or political purpose (House Rule XLIII, clause 6).
Travelers: Any person participating in campaign or political activity.
Duration Limit: None under House rules.
Disclosure: On Federal Election Commission (FEC) reports, for travel in connection with elections for federal office.
Supervising Authority: FEC for campaign finance requirements; Committee on Standards of Official Conduct for compliance with House Rule XLIII, clause 6.
VII. PRIVATELY SPONSORED FACT-FINDING TRAVEL
Description: For purposes directly related to official duties.
Travelers: Spouse or another family member may accompany a Member or employee at the sponsor's expense. An aide must independently be fact-finding.
Duration Limit: Maximum four days domestic (including travel time), seven days foreign (excluding travel days), from one source at one event unless prior written approval is obtained from the Committee on Standards of Official Conduct in ``exceptional circumstances.''
Disclosure: Must be disclosed as ``reimbursements'' by those filing Financial Disclosure Statements if it aggregates $250 or more in a year from a single source.
Supervising Authority: Committee on Standards of Official Conduct.
VIII. SUBSTANTIAL PARTICIPATION IN A PRIVATE EVENT
Description: Speaking or otherwise substantially participating in an event where no honorarium is involved.
Travelers: Spouse or another family member may accompany a Member or employee at the sponsor's expense. An aide must independently be substantially participating.
Duration Limit: Maximum four days domestic (including travel time), seven days foreign (excluding travel days), from one source at one event unless prior written approval is obtained from the Committee on Standards of Official Conduct in ``exceptional circumstances.''
Disclosure: Must be disclosed as ``reimbursements'' by those filing Financial Disclosure Statements if it aggregates $250 or more in a year from a single source.
Supervising Authority: Committee on Standards of Official Conduct.
In response to some questions frequently asked regarding the travel time limits specified in the Ethics Reform Act of 1989, the Committee made the following policy determinations:
Computation of Four Days: A maximum of 4 days, including travel time, may be accepted from one source without prior approval for domestic fact-finding and substantial participation travel. The traveler must begin his or her return travel no later than four calendar days (96 hours) after the start of the trip.
Computation of Seven Days: A maximum of 7 days, excluding travel days, may be accepted from one source without prior approval for foreign fact-finding and substantial participation travel. The traveler is thus permitted 7 days at his or her destination.
Staying Over: Any days on which a traveler pays the host the actual cost of his or her own expenses (and those of any accompanying family member), travels separately at his or her own expense, or accepts personal hospitality of an individual as allowed by the rule, are not counted toward the 4 or 7 day limit. The traveler may still return at the sponsor's expense.
Consecutive Events: The applicable time limit (4 or 7 days) commences with the beginning of each separate event with a separate host in which the traveler is fact-finding or substantially participating (as evidenced in part by separate invitations from different sponsoring organizations).
Further guidance regarding travel or other matters under the jurisdiction of this Committee may be obtained by seeking a written advisory opinion or calling the Committee's Office of Advice and Education at 225-3787.
TO: All Members, Officers, and Employees of the U.S. House of Representatives
FROM: Committee on Standards of Official Conduct Julian C. Dixon, Chairman John T. Myers, Ranking Minority Member
The Ethics Reform Act of 1989 enacted a new, government-wide ban on solicitation, codified at 5 U.S.C. sec. 7353. Because this statute might appear to affect legitimate activity, the Committee wishes to clarify its interpretation of the statute.
Section 303 of the Ethics Reform Act of 1989 added the new sec. 7353 to 5 U.S. Code, stating 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 of individual's official duties.
These statutory restrictions extend to ``anything of value,'' regardless of whether the official receives a personal benefit. Subsection (b) authorizes this Committee to issue implementing rules or regulations for the House, ``providing for such reasonable exceptions as may be appropriate.''
Section 7353 must be read in the context of preexisting laws, rules,and regulations. The statute supplements, for example, the provisions of the criminal code that prohibit bribes and gratuities. See 18 U.S.C. sec. 201. Thus, sec. 7353(b) (2)(B) states:
No gift may be accepted . . . in return for being influenced in the performance of any official act.
At the same time, however, the new law does not amend prior law permitting solicitations in defined circumstances. For example, a highly developed body of law regulates campaign financing. The Committee does not construe 5 U.S.C. sec. 7353 to prevent a Member, officer, or employee from raising campaign funds or soliciting other items to the extent their acceptance is permitted under applicable laws, rules, or regulations, provided that no individual solicits, directly or through others, any personal or financial benefit unless the Committee grants prior written approval in exceptional circumstances.
Certain types of solicitations are not directly addressed by other laws. Members are often asked, for example, to assist charities in their fundraising efforts. The Committee has determined that Members, officers, and employees of the House may solicit funds on behalf of charitable organizations qualified under sec. 170(c) of the Internal Revenue Code, provided that no official resources are used, no official endorsement is implied, and no direct personal benefit results. The Committee will address on a case-by-case basis the extent to which a Member, officer, or employee may personally control the distribution of funds from a charity for which he or she solicits funds. Similarly, questions regarding solicitations on behalf of entities that are not charities qualified under sec. 170(c) will be decided as they arise.
The Committee encourages any Member, officer, or employee with questions on the scope of sec. 7353 to call its Office of Advice and Education at 225-3787 or to write the Committee for an advisory opinion.
(FOOTNOTE 1) This opinion was originally issued on May 9, 1977. It has been updated to reflect changes to applicable rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716 (1989), and the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447 (1991).
Definition of a gift for purposes of House Rule XLIII, clause 4.
House Rule XLIII, clause 4 provides that a Member, officer, or employee of the House shall not accept gifts in any calendar year aggregating more than $250, directly or indirectly, from any source, except to the extent permitted by written waiver in exceptional circumstances by the Committee on Standards of Official Conduct. Specifically exempted from this provision are (1) gifts from relatives; (2) gifts valued at $100 or less; and (3) gifts of personal hospitality of an individual.
The Commission on Administrative Review, in its report on Financial Ethics (H. Doc. 95-73, February 14, 1977) recommending the Rules changes that were enacted by the House that year, specified that bequests and other forms of inheritance should not be considered gifts for the purposes of the new Rule, and explained personal hospitality to mean ``hospitality extended for a non-business purpose by an individual, not a corporation or organization, on property or facilities owned by that individual or his family.'' Additionally, it is understood that loans and campaign contributions are not considered to be gifts.
Other than the exemptions specified in the Rule and the legislative history, there is no precise definition of what constitutes a gift for purposes of Rule XLIII, clause 4. The House recognized the likelihood that Members, officers, and employees would need guidance on the definition of terms used in the new House Rules, and therefore passed H. Res. 383 which authorized the Select Committee to issue advisory opinions providing such guidance and interpretation respecting the application of the Rules.
The Select Committee begins with the proposition that the basic legal definition of a gift should be used in applying the provisions of Rule XLIII, clause 4, as follows:
A payment, subscription, advance, forbearance, rendering, or deposit of money, services, or anything of value, including food, lodging, transportation, or entertainment, and reimbursement for other than necessary expenses, unless consideration of equal or greater value is received by the donor.
This definition is implicit, for example, in the Select Committee's Advisory Opinion #2, which states that necessary expenses provided a Member in connection with an event in which he ``substantially participates,'' i.e., renders consideration of equal value, do not constitute a gift.
The Select Committee finds that there are certain categories of gifts that were never intended to be covered under the Rule XLIII, clause 4 limitations on acceptance of gifts. These are items that do not present potential conflicts of interest or are related to a Member's official duties. For these reasons, Rule XLIII, clause 4 is not applicable to the following categories of gifts:
Food lodging, transportation, and entertainment provided on an official basis by federal, state, and local governments and political subdivisions thereof. Members, officers, and employees are frequently invited to various functions paid for or sponsored by such government agencies. It was not the intent of the gifts limitation to prohibit Members, officers and employees from participating in such events. Even if the individual is not fully participating, but is simply present, for example, at a groundbreaking ceremony or a banquet honoring newly-elected officials, it would serve no purpose to preclude such activities.
Food lodging, transportation, and entertainment provided by a foreign government within a foreign country. The Foreign Gifts and Decorations Act was amended by PL 95-105 to give consent of Congress to acceptance of gifts of travel or expenses for travel taking place entirely outside the United States. Any such gifts of travel expenses must be disclosed to the Committee on Standards of Official Conduct within thirty days after departure from the donor country. Since such gifts from a foreign government are subject to these statutory requirements, they are exempted from the prohibitions of Rule XLIII.
Communications to a Member's offices in Washington, D.C. and his district, including subscriptions to newspapers, magazines, and periodicals. Members are traditionally provided free subscriptions to weekly news magazines, newspapers, interest group journals, and other publications which are useful as information sources or reference tools in the conduct of the Member's official duties. In many cases, these publications could exceed $250 in value in a calendar year, particularly if postage is added (e.g., local newspapers). It would be inappropriate and contrary to the public interest to prohibit Members from receiving these materials and might impinge on the rights of citizens to communicate with their Representative. The Select Committee emphasizes that this finding applies primarily to free subscriptions to publications, and not to individual items of considerable value, such as a set of encyclopedias or rare books.
Bona fide awards presented in recognition of public service and available to the general public. A Member, officer, or employee should be permitted to accept an award valued at more than $250 from an organization so long as the award is not contrived for one special occasion and is available to the general public.
A suitable memento of a function held in honor of the Member, officer, or employee. A Member, officer, or employee should be permitted to accept a suitable memento of reasonable value. However, the Committee emphasizes that a ``suitable memento would not include items such as cash, a television set, or automobile.
Consumable products provided by home-state businesses to a Member's office but which are primarily intended for consumption by persons other than the Member and his staff. Members have traditionally received gifts of consumable items (e.g., cigarettes, peanuts, etc.) from businesses in their home states. These consumable products are usually passed on to constituents and other visitors to the office and are therefore not considered by the Committee to be gifts to the Member or his staff. This applies only to gifts of consumable items, and only when such items are consumed primarily by persons other than the Member and his staff.
Food and beverage consumed at banquets, receptions, or similar events. Pursuant to section 801(e) of the Ethics Reform Act of 1989, also exempt from application of Rule XLIII, clause 4 are ``gifts of food and beverages consumed not in connection with gifts of lodging.'' (FOOTNOTE 2)
(FOOTNOTE 2) See 2 U.S.C. sec. 29d note.
For purposes of Rule XLIII, clause 4, a gift is defined as follows:
A payment, subscription, advance, forbearance, rendering, or deposit of money, services, or anything of value, including food, lodging, transportation, or entertainment, and reimbursement for other than necessary expenses, unless consideration of equal or greater value is received by the donor.
The Select Committee finds, based on the language of new Rule XLIII, clause 4, the Rule's legislative history, the absence of conflict of interest issues, and/or public policy considerations, that the following items are not gifts for purposes of Rule XLIII, clause 4:
(1) Bequests and other forms of inheritance;
(2) Loans made in a commercially reasonable manner (including requirements that the loan be repaid and that a reasonable rate of interest be paid);
(3) Political contributions as defined by the Federal Election Commission and otherwise reported as required by law;
(4) Food, lodging, transportation, and entertainment provided on an official basis by federal, state, and local governments or political subdivisions thereof;
(5) Food, lodging, transportation, and entertainment provided by a foreign government within a foreign country;
(6) Communications to a Member's offices in Washington and his district, including subscriptions to newspapers, magazines, and other periodicals;
(7) Bona fide awards presented in recognition of public service and available to the general public;
(8) Suitable mementos of a function honoring the Member, officer, or employee;
(9) Consumable products provided by home-state businesses to a Member's office that are primarily intended for consumption by persons other than the Member and his staff;
(10) Food and beverages consumed not in connection with gifts of overnight lodging, including at banquets, receptions, or similar events.
(FOOTNOTE 1) This opinion was originally issued on April 6, 1977. It has been updated to reflect changes to applicable rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716 (1989), and the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447 (1991).
Applicability of House Rule XLIII, clause 4, to reimbursement or payment of necessary expenses associated with a conference, meeting or other similar event in which a Member, officer or employee of the House participates.
Members have raised a number of questions concerning the definition and application of the gifts provisions as set forth in House Rule XLIII, clause 4. An advisory opinion has been requested as to whether the reimbursement or receipt of expenses connected with events in which a Member, officer, or employee participates constitutes a gift.
House Rule XLIII, clause 4, establishes, in effect, that Members, officers, or employees of the House shall not accept gifts (other than the personal hospitality of an individual or with a fair market value of $100 or less) in any calendar year aggregating more than $250, directly or indirectly, from any source (other than from a relative), except to the extent permitted by written waiver granted in exceptional circumstances by the Committee on Standards of Official Conduct. In most cases, an individual's expenses for a meeting or conference, including transportation, food, and lodging, would exceed the aggregate figure of $250. However necessary expenses should not be considered a ``gift'' to a participating individual who renders personal services sufficient to constitute ``equal consideration'' for the expenses provided by the sponsoring organization. Conversely, it should be noted that the services rendered must be more than perfunctory in nature to constitute equal consideration for the expenses involved. For example, addressing an audience at an event or engaging in discussion seminars would be considered substantial participation sufficient to constitute ``equal consideration,'' while simply visiting a specific site or location as part of a ``fact-finding tour'' would probably not be viewed as ``equal consideration'' for expenses paid by a sponsoring organization.
A similar philosophy of exempting expenses for participation in an event is recognized in clause 3(c) of House Rule XLVII, which excludes actual and necessary travel expenses from being considered an honorarium paid for a speech or appearance.
The Ethics Reform Act of 1989 establishes a ceiling on the expenses which will normally be deemed necessary for privately paid travel. In the case of domestic travel, a maximum of four consecutive days (including travel days) may be accepted without prior written approval from the Committee on Standards of Official Conduct. In the case of foreign travel, a maximum of seven consecutive days (excluding travel days) may be accepted without prior written approval from the Committee. The Committee is authorized to grant prior written exemptions from this limitation in ``exceptional circumstances.''
A separate question surrounds the reimbursement or payment of similar expenses for the spouse of a Member, officer, or employee. If a sponsoring organization pays the spouse's expenses to attend an event in which the Member participates, would those expenses constitute a gift to the Member under clause 4 of rule XLIII? Rule XLIII does not specifically address this question. However, the Ethics Reform Act of 1989 does authorize a Member, officer, or employee to accept travel expenses for a spouse or other family member in connection with any substantial participation event.
A Member, officer, or employee of the House (and the individual's spouse or another family member) may be paid or reimbursed for transportation, food, and lodging expenses when such expenses are directly associated with a conference, meeting, or similar event in which the Member, officer, or employee substantially participates. Such reimbursements or payments aggregating $250 or more from one source would be disclosed in accordance with the provisions of title I of the Ethics in Government Act (5 U.S.C. app. 6, sec. 102(a)(2)).
(FOOTNOTE 1) This opinion was originally issued on May 11, 1977. It has been updated to reflect changes to applicable rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716 (1989), and the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447 (1991).
Applicability of House Rule XLIII, clause 4 to acceptance of necessary expenses paid by an organization in connection with a fact-finding event which is directly related to the official duties of a Member, officer, or employee.
The Select Committee has received numerous inquiries concerning whether a Member, officer, or employee may accept payment or reimbursement for necessary expenses from an organization sponsoring a fact-finding event.
Members, officers, and employees of the House of Representatives are often invited by independent foundations, corporations, unions and other non-governmental organizations, both foreign and domestic, to attend a ``fact-finding'' event which is intended for educational purposes directly related to their official duties.
For example, an oil company may sponsor an inspection tour of its offshore oil drilling platform, or a lumber company may arrange a demonstration of new logging methods in a remote area. Similarly, a foreign foundation may invite Members and employees to attend an educational program designed to promote better understanding and improve U. S. relations with that country.
The applicable House Rule regarding fact-finding events is Rule XLIII, clause 4 which provides that a Member, officer, or employee shall not accept gifts (FOOTNOTE 2) (other than the personal hospitality of an individual or with a fair market value of $100 or less) in any calendar year aggregating more than $250, directly or indirectly, from any source (other than from a relative), except to the extent permitted by written waiver granted in exceptional circumstances by the Committee on Standards of Official Conduct. In many instances, the travel expenses for a fact-finding event would exceed $250.
(FOOTNOTE 2) In Advisory Opinion No. 7, the Committee held that Rule 43, clause 4 does not apply to travel expenses provided on an official basis by federal, state or local governments, or provided by a foreign government within a foreign country.
Although there has been some criticism regarding abuses of ``fact-finding tours'' in the past, the Select Committee finds that it would be contrary to the public interest and the intent of Rule XLIII to prohibit Members, officers, and employees from attending fact-finding events or activities which have a legitimate purpose directly related to the official duties of the Congress. The Committee also notes the precedent in current law (22 U.S.C. secs. 2451-2) which allows federal employees to accept travel expenses paid by foreign governments in connection with a trip which is for an educational or cultural purpose and is so certified by the State Department. Therefore, the Select Committee holds that necessary expenses paid by an organization sponsoring a fact-finding event are exempted from the limitations of Rule XLIII, clause 4, provided that the fact-finding event or activity is directly related to the official duties of the Member, officer, or employee. Any such reimbursement or payment of travel expenses aggregating over $250 in value from one source would be subject to disclosure under the requirements of title I of the Ethics in Government Act (5 U.S.C. app. 6, sec. 102(a)(2)). This public disclosure will guard against the potential abuse of converting this kind of activity from an official business purpose to that of personal pleasure or entertainment. Gifts of that nature exceeding $250 in value were clearly intended to be prohibited by Rule XLIII, clause 4.
This exemption also applies to necessary expenses for the spouse or one other family member of a Member, officer, or employee. The Ethics Reform Act of 1989 authorizes a Member, officer, or employee to accept travel expenses for a spouse or other family member in connection with any fact-finding event.
The Committee notes that the phrase ``fact-finding event or activity'' does not apply to situations where expenses are provided in consideration of personal services rendered. In those cases where the purpose of a Member's trip is to provide such services as delivering a major speech to a convention, necessary expenses are not considered to be a gift (see Advisory Opinion #2, issued April 6, 1977). In comparison, although a Member, officer, or employee of Congress may render some personal services in the course of a fact-finding event, the primary purpose of the trip is for Members, officers, or employees to become better informed regarding subject matters closely related to their official duties.
Additionally, the Select Committee emphasizes that the definition of a ``fact-finding event'' must be interpreted narrowly. House Rule XLIII, clause 2 puts Members on notice that not only the ``letter'' but also the ``spirit'' of House Rules must be adhered to. Therefore, since Members are already provided travel expenses to and from their own districts, a Member should not accept free transportation on a corporate jet or commercial flight from Washington to his district, on grounds that he would ``tour'' the corporate facilities there, Neither would the exemption apply, for example, to travel expenses provided by representatives of the maritime industry to attend a ship-launching.
The intended definition of a fact-finding event would also not extend to expenses incurred during such an event which are unrelated to the specific fact-finding activity. For example, if a Member spends two days attending an educational event in a foreign country and then spends several more days touring that country at his leisure, the expenses associated with the sight-seeing tour would not be exempted from the Rule. Similarly, this exemption for fact-finding activities applies only to necessary expenses (transportation, food, and lodging) and not to entertainment. Thus, a Member of Congress, whether traveling on a fact-finding tour or under any circumstances, may not accept gifts of entertainment beyond the $250 limit imposed by Rule XLIII. The Ethics Reform Act of 1989 establishes a ceiling on the expenses which will normally be deemed necessary for privately paid fact-finding travel. In the case of domestic travel, a maximum of four consecutive days (including travel days) may be accepted without prior written approval from the Committee on Standards of Official Conduct. In the case of foreign travel, a maximum of seven consecutive days (excluding travel days) may be accepted without prior written approval from the Committee. The Committee is authorized to grant prior written exemptions from this limitation in ``exceptional circumstances.'' The Committee also emphasizes that to qualify for the exemption, the fact-finding event or activity must bear a direct relationship to official duties. The responsibility will rest with the Member, officer, or employee to determine whether the particular event or activity is intended for fact-finding purposes directly related to his or her official duties.
A Member, officer, or employee of the House (and the individual's spouse or another family member) may be paid or reimbursed for transportation, food, and lodging expenses provided by the sponsor of a fact-finding event or activity which is directly related to official duties. Such reimbursements or payments aggregating $250 or more in value from one source would be disclosed in accordance with the provisions of title I of the Ethics in Government Act (5 U.S.C. app. 6, sec. 102(a)(2)).
The Committee emphasizes that this holding has no bearing on any constitutional or statutory prohibition regarding acceptance of gifts from foreign governments or their representatives.
(FOOTNOTE 1) This opinion was originally issued on May 9, 1977. It has been updated to reflect changes to applicable rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716 (1989), and the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447 (1991).
Definition of an indirect gift for purposes of House Rule XLIII, clause 4.
The Select Committee has received a number of requests for an advisory opinion interpreting what constitutes an ``indirect gift'' to a Member, officer, or employee for purposes of applying the gifts provision in House Rules.
House Rule XLIII, clause 4 provides that a Member, officer, or employee shall not accept gifts in any calendar year aggregating $250 or more in value, directly or indirectly, from any source (other than from a relative), except to the extent permitted by written waiver in exceptional circumstances by the Committee on Standards of Official Conduct.
The word ``indirectly'' has principal reference to gifts to the spouse or dependent of a Member, officer, or employee of the House of Representatives. (FOOTNOTE 2) For example, if a Member would be personally barred from receiving a color television set from an individual, it would not be appropriate for the Member's spouse or dependents to receive such a gift. Therefore, as a general rule, gifts received by the spouse or dependent of a Member, officer, or employee would be considered indirect gifts to the Member, officer, or employee. Failure to so apply the gifts provision to spouses and dependents could cause the intent of the Rule to be easily defeated. The issue is not simply one of preventing circumvention of the gifts provision, but also a common sense recognition that assets and holdings of a spouse and dependents are generally considered to be shared by the partner, i.e., the Member, officer, or employee. However, in finding that the gifts to a souse or dependent generally constitute an indirect gift to a Member, officer, or employee because of the nature of the relationship involved, the Select Committee is well aware that where a truly independent status is identified, considerations of privacy and equal rights should be controlling.
(FOOTNOTE 2) The word ``indirectly'' also refers to gifts received by a Member, officer, or employee through or from a third party. For example, a Member or employee could not accept a gift from an agent of a person who had already given the maximum allowable in a calendar year.
Therefore, the following guidelines are set forth by the Select Committee to clarify when gifts to spouses and dependents would not be considered as indirect gifts to the Member, officer, or employee of the House for the purposes of Rule XLIII, clause 4.
A spouse or dependent may frequently receive a gift from an employer or another person which is prompted by recognition of their services, friendship, or some other consideration unrelated to the official responsibilities of the Member, officer, or employee. When it is clear that such gifts are truly independent of the Member, officer, or employee and would have been offered regardless of the donee's relation to that person, such gifts would not be considered as indirect gifts for the purposes of Rules XLIII. However, when it is apparent that the gift may not have been offered but for the donee's relation to the Member, officer, or employee, such a gift would constitute an indirect gift to the Member, officer, or employee.
An additional clarification that has been requested concerns the treatment of ``simultaneous gifts'' to a Member, officer, or employee and his spouse or dependents. For example, an individual or organization may well invite a Member's family to a theater performance. (FOOTNOTE 3) The question is whether such gifts should be aggregated or considered as separate gifts in relation to the provision of Rule XLIII, clause 4 which exempts all gifts valued at $100 (FOOTNOTE 4) or less. For example, the questions has been raised: ``Would tickets costing $60 each for a Member and his spouse be considered as one $120 gift or as two $60 gifts (thus falling under the $100 exemption)?''
(FOOTNOTE 3) The Select Committee Opinion originally used a dinner as an example in discussing ``simultaneous gifts.'' However, the Ethics Reform Act of 1989 exempted local meals from being considered gifts for the purposes of Rule 43.
(FOOTNOTE 4) When first enacted in 1977, the threshold for aggregation was $35. It was subsequently raised to $50, then $75, and most recently to $100, effective January 1, 1992, by the Legislative Branch Appropriations Act, 1992.
The legislative history of the amendment to Rule XLIII, clause 4 clearly indicates that the intent of the ``de minimis'' exemption for gifts of less than $100 in value was to avoid imposing excessively burdensome recordkeeping requirements and to ignore insubstantial gifts which do not present any conflict of interest. Furthermore, it would seem to serve no public policy consideration to prohibit a Member from attending an event with his spouse and dependents, but to allow the Member to attend such a reception alone. Therefore, the Select Committee finds that simultaneous gifts valued at $100 or less should not be aggregated, but rather should be considered as separate gifts.
Gifts to a spouse or dependent are considered indirect gifts to the Member, officer, or employee for purposes of House Rule XLIII, clause 4, unless such gifts are prompted by some consideration unrelated to the Member, officer, or employee. Simultaneous gifts such as theater invitations to a Member and his spouse and dependents should be treated as separate gifts and not be aggregated. Therefore, it unless an individual gift is valued at more than $100, it would be exempted for purposes of Rule XLIII, clause 4.
(FOOTNOTE 1) This opinion was originally issued on April 6, 1977. It has been updated to reflect changes to applicable rules made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716 (1989), and the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447 (1991).
Applicability of House Rule XLIII,clause 4 to acceptance of free transportation provided by air carriers on inaugural flights.
The Select Committee has been requested to issue an advisory opinion on the propriety of Members, officers, or employees of the House of Representatives accepting free transportation provided by air carriers on inaugural flights.
Commercial air carriers occasionally provide free transportation on ``inaugural flights'' to invited guests when a new route or new equipment is introduced. The air carriers may invite Members, officers, and employees of the House of Representatives on such flights.
The applicable House Rule in this situation is Rule XLIII, clause 4, which provides, in effect, that a Member, officer, or employee shall not accept gifts in any calendar year aggregating $250 or more in value, directly or indirectly, from any party (other than from a relative). The question is whether an inaugural flight constitutes a gift.
In the case of inaugural flights, the Member, officer, or employee of the House does not appear to render any services of equal consideration of the value of the flight, and therefore an inaugural flight would appear to constitute a gift to the Member, officer, or employee. If the value of the transportation provided on an inaugural flight exceeds $250, and the Committee assumes that such would be the case in every instance, acceptance of such a gift would be prohibited under Rule XLIII, clause 4.
The Committee recognizes that the definition of ``gift'' for the purposes of Rule XLIII, clause 4, might not include some situations where a trip or event is primarily intended for educational purposes and is directly related to a Member's or officer's or employee's official duties. However, the Committee finds that inaugural flights, as traditionally defined, do not have sufficient educational value to exclude them from the definition of a gift for purposes of the intent of Rule XLIII, clause 4.
Acceptance of free transportation provided by air carriers on inaugural flights is prohibited under House Rule XLIII, clause 4.
(FOOTNOTE 1) This letter has been updated to reflect changes to House Rule 43, clause 4, made by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716 (1989), and the Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447 (1991).
Dear Colleague: The purpose of this letter is to notify all Members, officers, and employees of the House of Representatives of a revision to the Committee's policy, effective immediately, regarding the valuation of gifts of transportation not accepted in connection with either fact-finding activities or events in which a Member substantially participates. Members may not accept gifts valued at greater than $250 in a calendar year. See House Rule XLIII, clause 4, which states:
A Member, officer, or employee of the House of Representatives shall not accept gifts (other than personal hospitality of an individual or with a fair market value of $100 or less), as adjusted under section 102(a)(2)(A) of the Ethics in Government Act of 1978) in any calendar year aggregating more than the minimal value as established by section 7342(a)(5) of title 5, United States Code, or $250, whichever is greater, directly or indirectly, from any person (other than from a relative) except to the extent permitted by written waiver granted in exceptional circumstances by the Committee on Standards of Official Conduct pursuant to clause 4(e)(1)(E) of rule X.
To date, the Committee has utilized a simplified approach in valuing gifts of transportation (most typically provided on private aircraft) accepts by Members. The existing methodology has been to determine whether the specific itinerary is also available from a commercial carrier and, if so, to set the value of the flight using the lowest available commercial rate. This concept of valuation is consistent with the approach taken by the Select Committee on Ethics in its Final Report, House Report 95-1837, January 3, 1979:
With respect to gifts of transportation on private aircraft, the value is equal to the commercial air fare for the same flight.'' Final Report, at p. 8. See also, H. Rept. 99-470, February 5, 1986; and H. Rept. 100-46, April 9, 1987.
While the existing approach has, of course, generally proven adequate to value gifts of transportation, the Committee believes that the approach can, and should, be further refined to take into account the various factual scenarios which might arise. Such refinements would address the kind of service provided (that is, class of transportation), as well as valuation in the absence of regularly scheduled commercial service.
To this end, the Committee, effective immediately, will adopt criteria similar to that utilized by the United States Senate and described by the Senate Select Committee on Ethics in its Interpretative Rule No. 412, issued August 11, 1986.
Accordingly, the Committee has agreed on the following method for calculating the value of a gift of private aircraft transportation for both reimbursement and disclosure under the Ethics in Government Act of 1978, as well as application of House Rule XLIII, clause 4.
A. 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. If more than one first class fare is available (due to service by more than one carrier), the lowest first class fare will be used.
B. 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. If more than one coach fare is available due to service by more than one carrier, the lowest coach fair will be used. No discount fares will be used, such as ``supersaver'' fares, for valuation purposes.
C. 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 the new policy 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 House Administration has adopted travel regulations pertaining to the level of reimbursement to be provided from the official allowance to Members who seek reimbursement for air transportation costs they have paid in connection with official travel. By contrast, this advisory letter and the revised policy address only the valuation of gifts of private transportation not associated with official travel.
Any questions regarding the revised policy shall be directed to the Committee staff at 225-7103. (FOOTNOTE 2)
(FOOTNOTE 2) The Committee's Office of Advice and Education may be reached at (202) 225-3787.