What Do the Cooling-Off Restrictions Mean?
Q: I run a lobbying firm in town that is looking to expand. We are considering trying to hire one or two recently departed Members of the House. I had lunch with one candidate the other day, and he told us that his status as a former Member means that there are restrictions on what he would be able to do for us. Before hiring anyone, I want to make sure that I fully understand those restrictions. Would a former Member be able to lobby for us? If not, is there anything he would be permitted to do?
A: Before turning to your question, I want to commend you on your timing. Federal law does impose restrictions on what departing Members can do after they leave the House. You are sensible to educate yourself about those restrictions now, before making any hiring decisions. That way there will be no unhappy surprises later.
The restriction on Members’ post-House employment are set forth in the Ethics Reform Act, which President George H.W. Bush signed into law in 1989. That act took post-employment restrictions that already existed for executive branch employees and applied some of them to legislative branch employees.
The restrictions apply not just to Members but also to staffers who are paid at least 75 percent of a Member’s salary. For such Members and staffers, the act creates a one year “cooling-off period” during which they are prohibited from engaging in certain types of activities. The cooling-off period begins on the date the Member or staffer officially leaves the House payroll. For Members who are not re-elected from one session to the next, that date is Jan. 3. Therefore, any Members you are considering hiring who just left office after losing re-election or retiring last year would be bound by the restrictions until Jan. 3 of next year.
So, what are the restrictions? Perhaps the most significant for your purposes is that the Member cannot lobby. More specifically, the Member may not communicate with or appear before any Member or staffer with the intent to influence an official act or decision by such Member or staffer.
Note that what counts as “communicating” here is broader than what you might think. The Department of Justice, which is charged with enforcing the cooling-off period restrictions, has defined the term “communication” to mean “the act of imparting or transmitting information with the intent that the information be attributed to the former official.” This means that it is not necessary for a Member actually to speak with someone for it to qualify as a communication.
The interpretation of “appearing before” a Member or staffer is likewise broad. In a memorandum released last month by the House Ethics Committee, the committee confirmed previously issued guidance stating that an appearance extends to a former Member’s mere physical presence at a proceeding where circumstances make clear that his presence is intended to influence an official act. It is even said to cover a request made on behalf of another person for a meeting with a current Member or staffer regarding official business.
On the other hand, the restrictions on communications and appearances do not forbid Members from advising clients concerning how to lobby Congress. Last month’s House Ethics Committee memorandum confirmed this, stating that a “background role” does not pose the risk of improper influence because the current officials would not be aware of the former Member’s participation. The former Member’s aid or advice, however, must remain behind the scenes. Therefore, the memorandum stated, even where other people make contacts with Congress with the intent to influence, Members must not permit their name to be openly associated with those contacts.
The line between prohibited communications and permissible behind-the-scenes activities is not always clear. The DOJ has admitted as much, stating that it is not possible to create bright line rules. Rather, the DOJ says, whether a former official “could be found criminally liable … will vary depending upon the facts and the strength of the circumstantial evidence that the former official intended to be identified as the source of any information or views conveyed to the agency.”
The DOJ has acknowledged the potential chilling effect of the vagueness of the standard. For example, it has said, a very small firm with a former official might refrain from submitting a report in the firm’s name even where the official had no role in preparing the report, merely because the former official might fear that the submission would be viewed as evidence that he intended to be identified as the source of the report. However, the DOJ has said, the fact that its guidance might discourage even certain lawful forms of communicating with government officials is a permissible byproduct of a statute designed to protect public confidence in government decision-making.
In other words, be careful.
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.