Q:
I am a longtime Congressional staffer with a passion for fly-fishing and writing. Recently, my wife suggested that I combine those passions by writing about my fly-fishing excursions. She also is a staffer, and she writes poems in her spare time, many of which have been published in magazines. Because I always do as my wife says, I am now writing articles about my fly-fishing and submitting them to magazines in hopes of publication. I am not sure whether it makes any difference, but I follow the same procedures my wife follows with her poetry. Specifically, I make sure that the topics I cover have nothing to do with my official duties, I do all of my writing in my spare time, and I never use official resources. Not even pens! Also, I don’t tell the magazines that I am a Congressional staffer. Although it seems unlikely that my staff position would influence their decision, I don’t want even the appearance of impropriety. Last week, after many months of rejection letters, a magazine finally expressed interest in one of my submissions. The editor offered me $750 to publish it. May I accept the payment? And what about my wife’s poetry? [IMGCAP(1)]A: Your questions are an excellent reminder that, to comply with today’s House ethics rules, intuition is not always an adequate guide. When most of us think of ethics, we think of general standards of behavior that are largely intuitive. Although the House ethics standards started out that way, they have evolved into an elaborate set of technical rules that require deliberate attention. Your questions illustrate this well because answering them requires considering factors that might not immediately seem relevant.

The first such factor is your salary as a staffer. Under House Rule 25, there are two sets of restrictions on payments for articles. One set applies to House employees above a certain pay scale, while a slightly more lenient set applies to everyone else. The more stringent restrictions apply to all House employees paid at a rate greater than or equal to 120 percent of the minimum rate of basic pay for GS-15 of the General Schedule. That sum is currently $111,675.

If your salary is greater than or equal to this amount, you may not receive any “honorarium” — period. House Rule 25 defines an honorarium as “a payment of value for an appearance, speech, or article.” Therefore, if your salary qualifies you, the rules require you to decline the payment. In fact, the House ethics manual includes an example that is right on point. In that example, the manual states that a staffer who writes an article on rare butterflies for a nature magazine may not receive payment for the article even if it has nothing to do with his or her official duties or status, he or she uses no official resources, and the magazine has no interests related to his or her official duties.

On the other hand, if your salary is less than $111,675, you may accept an honorarium, but only if three conditions are met. First, the subject matter of your article must not directly relate to your official duties. Second, the payment must not be made because of your position within the House. And third, the person offering you the honorarium must not have interests that may be “substantially affected” by the performance or nonperformance of your official duties. Assuming these conditions are met, and, don’t forget, your salary is below $111,675, you may accept payment for your article.

This may make you wonder whether, by accepting payment for her poems all these years, your wife has been committing ethics violations, particularly if her House salary is greater than $111,675. Yet, oddly, in her case, the permissibility of the payments probably does not turn on her salary. Rather, the critical factor for her, believe it or not, is that she is writing poetry.

This is because the Committee on Standards of Official Conduct does not consider payments for poetry to be “honoraria.” In the ethics manual, the committee sets forth several exclusions from its definition of honorarium, exclusions that are not prohibited regardless of House salary. One such exclusion covers “payments for works of fiction, poetry, lyrics, or script, where the payment is not offered because of the author’s congressional status.” Therefore, so long as the magazines are not paying for your wife’s poems because of her Congressional status, the restrictions do not prohibit her from accepting the payments.

In your case, however, I presume that your fishing articles, while perhaps poetic, are not poetry. I presume also that they are not fiction, lyrics or script. If those presumptions are correct, the honorarium restrictions apply, and you should be aware of the corresponding penalties. One potential source of penalties is the Ethics Reform Act of 1989, where the honorarium ban originated. The act allowed the attorney general to bring court actions for honorarium ban violations, and to collect fines up to $10,000 for each offense. However, in 1995, the Supreme Court declared the act to be an unconstitutional abridgement of freedom of speech as applied to a group of executive branch employees who challenged the act. The court left open the question of applying the act to Congressional employees. The Department of Justice then issued an official opinion advising the attorney general that, in its view, no portion of the act’s honorarium ban survived the Supreme Court’s decision. Therefore, although the act’s ban officially has not been repealed, it is unlikely to be enforced by the attorney general.

That being said, the honorarium ban remains in place in the House Rules. Therefore, the ethics committee might issue sanctions if you accept payment for your article. Were the committee to do so, it is conceivable that you could challenge the sanctions on constitutional grounds. However, I’m not sure it would be worth the effort. I suspect you’d burn through your $750 before you even finished explaining your case to your attorney. All in all, you might be better off publishing your articles gratis.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.