Q: Please help settle a question about linking between a Member’s official House website and campaign website. I have always understood this to be against the rules. But I heard that the House recently issued new guidance, and that it is now OK to link between a campaign website and an official website. I help administer a Member’s official website, and it would certainly be nice to be able to link back and forth between the Member’s House website and campaign website. Is it now OK to post a link from a House website to a campaign website?
A. You are correct that there is new guidance from the House Ethics Committee about website linking. Unfortunately, the new guidance does not allow you to post a link from your Member’s official website to a campaign website. What the guidance does permit, with strings attached, is the reverse: linking from a campaign website to an official House website.
Believe it or not, as mundane as these issues may seem, they actually implicate important federal rules and statutes governing the appropriate use of campaign funds and official House resources.
Federal law requires that “appropriations shall be applied only to the objects for which the appropriations were made ...” Accordingly, as a general rule, the House Ethics Committee has said that official House funds must be used for the performance of official business of the House and not for other uses, such as campaign or political purposes.
Members must certify, under penalty of law, that their official funds are being used appropriately. Misuse of official funds can expose Members to severe consequences, including criminal prosecution for fraud. In 1978, a Member was convicted of several federal crimes, including fraud, stemming in part from his use of official House staff for non-official services. The Member spent seven months in prison and was subsequently censured by the House.
The House Administration Committee, which oversees the use of official House funds, has said that one consequence of the ban on using official funds for non-official purposes is that Members’ House websites “may not include personal, political party or campaign information.” Likewise, the House Ethics Committee has said that official House websites may not be linked “to websites created or operated by a campaign or any campaign-related entity, including political parties and campaign committees.” Government funds, the Ethics Committee has said, should not be used to help incumbents be re-elected. This prohibition remains in place.
The prohibition that has changed is the one governing linking in the other direction. Both House rules and the Federal Election Campaign Act restrict the use of campaign funds. In general, Members may not use campaign funds and resources for official House purposes, with some exceptions. The rules forbid official use not only of campaign funds, but also of certain equipment and services acquired with campaign funds. This includes, for example, campaign-funded computers.
Accordingly, the House Ethics Committee had previously said that a Member’s campaign website “may not include a link to a Member’s House website.” Moreover, a Member’s House website could not even be “advertised on his or her campaign website or in materials issued by the campaign.”
In March, however, the Ethics Committee issued a memorandum with new guidance on this issue. The purposes of the new guidance, the memorandum says, are “to reduce confusion among constituents and the general public, and to help clarify the difference between campaign media and official media.” To these ends, Members’ campaign websites may now include a link to their official House websites, provided the link is “presented in” a notification that the House Ethics Committee has approved in advance.
There is one very specific notification that the Ethics Committee has already approved: “Thank you for visiting my campaign website. If your intention was to visit my official House of Representatives website, please click here.” Posting a link with this notification does not require prior approval from the Ethics Committee. “Using any other language” in a notification, however, requires written approval from the committee.
The new guidance also permits Members to link to their official House websites from other unofficial websites, including Facebook, Twitter and YouTube. Again, however, Members may do so only if the link is presented in a notification approved by the Ethics Committee.
The committee calls this new guidance “an exception to the general rule that campaign resources may not be used to advertise” official Congressional contact information. That general ban remains in place, as does the ban on posting a link from an official House website to a campaign website. Given the general policy against using House resources to help incumbents get re-elected, I would not expect the latter ban to change anytime soon.
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.
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