Q: I run a private organization that raises funds for victims of the floods in Pakistan. I recently noticed that the official websites of some Members of the House of Representatives contain links to organizations’ sites with information about how to donate to relief efforts in Japan and Haiti. These include organizations such as USAID. I thought this could be a great way to get the word out about our own organization’s efforts. I contacted some offices of Members and asked if they could post on their websites information about how to donate, as well as a link to our organization. Unfortunately, the ones that have responded thus far have told me that House ethics rules somehow prevent them from doing this. This did not make sense to me. After all, several Members’ sites already promote efforts in Japan and Haiti. I can’t help but wonder if our Pakistan efforts are being discriminated against. Is there any other explanation?
A: Actually, there is a good explanation. For purposes of the ethics rules, there is an important distinction between organizations like yours and organizations like the U.S. Agency for International Development — and it has nothing to do with which country benefits from the organization’s relief efforts. The distinction is that your organization is a private one and USAID is a government agency. House rules permit Members to use their official websites to inform constituents about government humanitarian efforts but forbid them from using their sites to promote private relief efforts. The reason lies in the prohibition on using official resources for nonofficial purposes.
This prohibition is based on a federal statute that requires federal appropriations of funds to be applied only to the objects for which they are made. In the case of appropriations made to House and Senate offices, the appropriations should be used only for official House and Senate purposes.
The House Ethics Committee has interpreted this to mean that official resources — such as office equipment and websites — may be used only for official purposes. The Senate Ethics Committee has reached a similar conclusion. In fact, Members of both the House and the Senate must certify that all funds officially appropriated to their offices have been properly spent. Making a false certification could expose a Member to civil or even criminal liability. Thus, Members are careful to follow these rules closely and seek advice from the committees who administer them.
There are two such committees: the House Administration Committee and the House Ethics Committee. In March, the chairmen and ranking members of these committees jointly issued a “Dear Colleague” letter that specifically addresses Members’ involvement in promoting relief efforts for victims of disaster. The letter stated that several offices had contacted the committees regarding the permissibility of the use of official resources to help victims, and that the purpose of the letter was to provide a review of the applicable rules.
The chairmen and ranking members stated that while they “understand the good intentions” of those wishing to solicit donations for relief efforts, the “rules of the House preclude Members from using official resources for any purpose other than in support of the Member’s official and representational duties on behalf of the district which the Member represents.” Consequently, the letter stated, “referrals to organizations or links to sites whose primary purpose is the solicitation of goods, funds or service on behalf of individuals or organizations are not permitted.”
However, the letter also stated that it is permissible “to link to official government Web sites that give details about the delivery of relief aid, including information about how Members’ constituents may provide aid or assistance during a crisis.” The letter listed examples of such government websites. These include the Department of State, the Department of Energy, the White House and USAID, among others. Therefore, the offices you spoke with were correct in telling you that they could not promote your organization on official House websites. In addition, offices that link to government agencies such as USAID are not violating the rules. Incidentally, in addition to information on Japan and Haiti relief efforts, USAID’s website also includes information on aid to Pakistani flood victims.
Note that even though Members cannot use their official websites to promote your organization, there are other ways that Members and staffers might be able to help without running afoul of the rules. This is because the ban on the use of official resources does not prevent Members from helping charitable organizations in their personal capacities or during their spare time.
The March letter from the House Administration Committee and Ethics Committee confirmed this, stating, “Members and staff may solicit in the personal capacities on behalf of organizations that are qualified under Section 170(c) of the Internal Revenue Code — including, for example 501(c)(3) charitable organizations.” If your organization meets these criteria, don’t give up hope yet. There may be Members or staffers who are willing to help, so long as they can.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.
Terri Henderson, 6, center, whose mother is El Salvador, attends a rally with members of Congress at Union Station's Columbus Circle to announce the Restore Opportunity, Strengthen, and Improve the Economy (ROSIE) Act on July 29, 2014. The legislation provides incentives for government contractors to pay a living wage and other benefits that would help low-income workers.