The good news for soon-to-be ex-Rep. Mark Souder: There are no rules that expressly prohibit Members of Congress from sleeping with their staff.
The Indiana Republican announced Tuesday that he had been having an affair with a part-time aide and that he is quitting the House out of shame. GOP staff said Minority Leader John Boehner (R-Ohio) alerted the ethics committee immediately after discussing the affair with Souder on Monday, and Souder announced his resignation Tuesday.
But it turns out the House Ethics Manual has no specific prohibition against Members engaging in romantic relationships with their staff.
There are nepotism rules that prohibit lawmakers from employing their family members, but they apply only to spouses and other relatives, not paramours.
In fact, an example in the House Ethics Manual suggests that the Committee on Standards of Official Conduct, better known as the ethics panel, has considered the prospect of Members dating their staff.
In explaining the nepotism rules, the ethics committee offers this example: "Employee G works on Member F's committee, and Employee G and Member F get married. Employee G may no longer receive compensation from the committee on which Member F serves."
That example implies that as long as they remain unmarried, the committee can continue to pay — and Member F can continue to date — Employee G.
Of course, there is a difference between being a staffer on a committee and being an employee of the personal office where the Member has full, unilateral control of the payroll, but the rules for that setting are no clearer.
The House Administration Committee's "employee handbook," which is provided to Members to serve as a basis for their employment policies, offers standard sexual harassment policy provisions. That language is generally focused on "unwelcome" sexual advances or the creation of a "hostile work environment," but not on consensual relationships between an employee and employer.
Congressional ethics experts say that while the rules do not explicitly prohibit sleeping with a staff member, there are plenty of provisions in the rules that would allow someone in Souder's position to be punished.
For starters, all Members and employees are required to live by the code of conduct spelled out in the House rules, which begins with the mandate that "A Member, Delegate, Resident Commissioner, officer, or employee of the House shall conduct himself at all times in a manner that shall reflect creditably on the House."
Several former ethics committee staffers said this edict alone would have been enough to doom Souder because, clearly, a married Member carrying on an affair with a married employee does not "reflect creditably on the House."
But the House Ethics Manual also points out that prior Congresses have interpreted that rule to focus on "official, rather than personal, conduct."
The manual offers a list of cases in which this clause of the rules has been enforced, including cases of Members "engaging in sexual relationships with House pages" (ex-Reps. Gerry Studds and Daniel Crane) and "making improper sexual advances to a Peace Corps volunteer" (ex.-Rep. Gus Savage), but the list does not include any case of a Member being sanctioned under this clause for having a consensual sexual relationship with a staff member.
Cases in which Members have been brought before the ethics committee on sex-related offenses have generally involved allegations of harassment of staff or breaking other rules to enable an affair, such as keeping an unqualified staff member on the payroll. Members of Congress have in the past dated staff members without being brought up on ethics charges — most recently, Sen. Max Baucus (D-Mont.) acknowledged he was dating a staff member whom he nominated for a U.S. attorney position.
Members can be held accountable for sexual harassment claims, but that would require a staff member to make a complaint.
In the case of ex-Rep. Eric Massa (D-N.Y.), his staff members have filed sexual harassment complaints with the Office of Compliance.
Under various House rules, a Member could be accused of favoritism, of treating staff unequally or of rewarding a paramour financially for something other than work performance. But those charges would all involve a level of proof beyond the fact of a romantic relationship.
Several ethics experts who asked not to be named for this article suggested that the rule books probably don't expressly prohibit a Member from sleeping with staffers because it is considered such an obvious infraction that there is no reason to spell it out.
In addition, once the rule is written, it becomes open to interpretation whether the infraction at hand fits exactly under the rule as it was worded. That is, specifically banning a practice implies that some variation of the practice has not been banned.