Can Answering a Campaign Call Break the Law? | A Question of Ethics
Q. As an aide to a Member of the House, I have a question about the rule requiring the separation of campaign work from official House activities. In our office, we are generally careful about keeping these separate. But, one problem we run into time and again is that people outside the House are not at all familiar with the distinction. For example, we frequently receive calls or emails about the Member’s upcoming campaign at our Member’s House office. We don’t want to run afoul of the rules. But, we don’t want to ignore folks either. What can we do?
A. Campaign season is upon us! Does it ever really go away?
Yes, campaigning has become a year-round activity, and members and staffers must always be mindful of rules governing campaign activity. But, as November approaches, the increased activity and urgency makes the risk of violations grow even greater.
While there are many, many rules governing campaign activity by House staffers, your question concerns the prohibition against using official House resources for campaign purposes. Let’s take a look at that rule and see how it might apply to your quandary.
Broadly, official House resources may only be used for official House purposes. They may not be put to personal use or used for campaign activities. These restrictions derive from the general rule that congressional allocations of funds must be used for the purpose for which they are allocated.
As you point out, many House staffers and campaign staffers are familiar with the prohibition against using House resources for campaign purposes, and responsible House offices and campaigns take care to comply with it. For example, a compliant House staffer would never perform campaign activities while at work or using official House resources. Staffers who wish to work on campaigns generally know they must do so outside their congressional office and on their own time.
Unfortunately, many people who contact these offices, including constituents, are not aware of these rules. In fact, some even seem unaware there is any distinction at all between someone acting in their official capacity as opposed to for campaign purposes. So, when these people contact a House office with a campaign question, what can you do? Do you have to ignore them?
The short answer is no. The rules do not require incivility. But you do need to be careful about how you respond.
Last month, the House Committee on Ethics issued a memorandum about campaign activity that might help. It contains no new rules, but instead is a “reminder to the House about commonly encountered issues” related to campaign activity. In addition to a top 10 list of “things to remember” about campaign activity, the memorandum contains a useful series of questions and answers with tips from the committee itself.
One question is right on point. It asks: “What do I do if people call, email, stop in, or write to the congressional office about campaign activities?” The memorandum answers generally that congressional offices receiving such communications may refer them to the appropriate campaign office. Conversely, campaign offices may refer to their respective congressional offices any communications received regarding officially related matters. All such referrals, the memorandum says, should come at the expense of the campaign.
The memorandum offers several tips for how congressional offices can handle these types of communications without running afoul of the law. Broadly, it says the “best practice” is to use the least amount of official resources necessary to forward the communications to where they belong. More specifically, for calls, the memorandum says the campaign should bear the expense of any long-distance calls in response to messages left at the office related to campaign activity. For letters, a congressional office should consider having on hand envelopes and stamps paid for by the campaign that can be used in responding to letters about the campaign to inform the sender to contact the campaign. And, for emails, congressional offices may simply forward the email to a campaign email address, and then the campaign may respond.
Note that there can be severe sanctions for those who blur the lines between campaign activity and official work, including steep fines and even jail time. When answering the phone, the rules don’t require you to be rude. Just careful.
C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to email@example.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.
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