Constituent Service
The guidance herein is intended as a summary of relevant Senate Rules, federal law, and related standards of conduct. The application of ethics laws, rules and standards of conduct is fact-specific, and the information herein is not meant as a substitute for obtaining the Committee’s advice and guidance on a particular matter. Providing advisory guidance to Members, officers, and employees is an important part of the Committee’s work, and the Committee strongly encourages Members, officers, and employees to contact the Committee and seek advice whenever possible.
The First Amendment of the U.S. Constitution guarantees the “right of the people . . . to petition the government for a redress of grievances.” Responding to inquiries of petitioners and assisting them before executive or independent government officials and agencies is an appropriate exercise of the representational function of each Member of Congress, as well as an important function of congressional oversight.
In 1992, the Senate adopted S. Res. 273, which created Senate Rule 43. The Rule affirms that “in responding to petitions for assistance, a Member of the Senate, acting directly or through employees, has the right to assist petitioners before executive and independent government officials and agencies.” This includes communicating with an executive or independent government official or agency to “(a) request information or a status report; (b) urge prompt consideration; (c) arrange for interviews or appointments; (d) express judgments; (e) call for reconsideration of an administrative response which the Member believes is not reasonably supported by statutes, regulations, or considerations of equity or public policy; or (f) perform any other service of a similar nature.” At the same time, the Rule places important limitations on intervention, including prohibiting Members from basing the decision to assist a petitioner on whether the petitioner has contributed to the Member’s campaign and requiring Members to make reasonable efforts to assure that representations made in the Member’s name by any Senate employee are accurate and conform to the Member’s instructions and to Senate Rule 43.
Prior to intervening with a government agency, a Member should consider the merits of the constituent’s case; the kind of agency involved; the nature of the agency proceedings; whether the office would perform the same service for any constituent similarly situated; the extent to which the proposed action or pattern of action deviates from normal office practice; and, if the Member or employee knows that an individual is a contributor, the history of donations by a contributor and the proximity of money and action (how close in time the Member’s official action would be to their knowledge of or receipt of a contribution).
Senate Rule 43 is explicit that “the decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest.” Special issues of ethics and propriety are raised when Members intervene in a particular matter before a federal agency on behalf of an individual who is a contributor to or a fundraiser for their campaigns or other causes. Because Senators occupy a position of public trust, every Senator always must endeavor to avoid the appearance that the Senator, the Senate, or the governmental process may be influenced by campaign contributions or other benefits provided by those with significant legislative or governmental interests. Nonetheless, if an individual or organization has contributed to a Senator’s campaigns or causes, but has a case which the Senator reasonably believes he or she is obliged to press because it is in the public interest or the cause of justice or equity to do so, then the Senator’s obligation is to pursue that case. In such instances, the Senator must be mindful of the appearance that may be created and take special care to try to prevent harm to the public’s trust in the Senator and the Senate.
Members should not intervene in pending court actions (unless the office becomes a party to the suit, or seeks leave of court to intervene as amicus curiae) until the matter has reached a resolution in the courts. The principle behind such advice is that the judicial system is the appropriate forum for the resolution of legal disputes and, therefore, the system should be allowed to function without interference from outside sources.
Similar concerns may limit a Member’s ability to intervene in certain types of federal agency proceedings. The limitations imposed on congressional intervention with a federal agency depend on the kind of administrative proceeding involved, with the most stringent limitations placed on congressional contacts involving pending agency adjudications. The Committee has recommended that Members not intervene if an executive branch agency is engaged in an ongoing enforcement, investigative, or other quasi-judicial proceeding. Such formal agency adjudications and rulemaking proceedings require that the agency’s decision be based only upon a record developed during a trial-like hearing.
The Government in the Sunshine Act (Sunshine Act), 5 U.S.C. § 557, imposes specific prohibitions on ex parte communications to agency employees reasonably expected to be involved in decision-making regarding the merits of a proceeding. Ex parte communications are oral or written communications which are made without proper notice to all parties and which are not on the public record. This prohibition against ex parte communications applies only to formal agency adjudications and rulemaking proceedings that are adjudicative in nature (so-called formal on-the-record rulemaking), both of which require that the agency’s decision be based only upon a record developed during a trial-like hearing. The intention of the Sunshine Act was to ensure that decisions required by law to be made solely on the basis of a public record would not be influenced by secret discussions that some of the parties to the proceeding, or the public, do not know about.
Status inquiries are considered an exception to the prohibition on ex parte communications. The Governmental Affairs Committee report accompanying the Sunshine Act, however, stated that only requests for status reports that do not affect the way a case is decided are exempted from the statute. The Governmental Affairs Committee noted that some requests for status reports could be subtle attempts to influence the outcome of agency proceedings and that agencies should treat such status inquiries as ex parte when the purpose is not clear.
Senate offices should first consult with an agency’s congressional liaison before contacting an agency to ensure the contact is permissible under applicable law and agency rules.
Senate Rule 43 does not address interventions with nongovernmental entities. However, the Committee recommends that Members, officers, and employees exercise caution regarding such interventions. Interventions with private entities raise a number of concerns not present in interventions with government entities, including, but not limited to, the potential appearance that a Senate office’s involvement is unduly coercive or that a private entity can curry favor with the Senate by complying with a Member’s, officer’s, or employee’s request. Contact the Committee with any additional questions prior to intervening with a nongovernmental entity.
Federal law limits a Member’s ability to recommend candidates for federal “competitive service” positions. Specifically, 5 U.S.C. § 3303 prohibits individuals examining applicants for competitive service positions from receiving or considering a recommendation by a Senator, except as to the character or residence of the applicant. Further, 5 U.S.C. § 2302(b)(2) prohibits recommendations, oral or written, other than recommendations “based on the personal knowledge or records of the person furnishing it, and consist[ing] of either (A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or (B) an evaluation of the character, loyalty, or suitability of such individual.”
Providing a letter of recommendation where the Member does not have personal knowledge of an individual’s work can also raise concerns beyond these statutory limitations. Contact the Committee for specific guidance regarding letters of recommendation.
Generally yes. Members have broad discretion regarding whether and how to help their constituents. However, Members, officers, and employees are not permitted to provide or deny assistance based on partisan political considerations, such as the constituent’s party affiliation or contributor status, or personal considerations, such as the Member’s personal or financial interests. In addition, the Committee advises Members against contacting an agency decision-maker performing a quasi-judicial, adjudicative, or enforcement function, as doing so can compromise the impartiality of the underlying proceeding. Before contacting an executive branch or independent government agency on behalf of a constituent, the Senate office should first contact the Congressional liaison for that agency to determine whether such intervention would be permitted at that time.
No. Senate Rule 43 provides that the decision to provide assistance to constituents may not be made on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest.
In a Dear Colleague letter issued in 2002 (Dear Colleague: Senate Rule 43 (Aug. 2002)), the Committee also advised Members that identifying those seeking access to Members based on party affiliation, political contributions or past employment, or encouraging others to do so, suggests a motive to grant special access or deny access based on those criteria and tends to adversely affect public confidence in the Senate.
Yes, in the Senator’s discretion. The Committee has previously ruled that the prohibition on soliciting anything of value contained in the Anti-Solicitation Statute (5 U.S.C. § 7353) does not prohibit solicitations for § 501(c)(3) charitable organizations, as long as the solicitation does not involve any use of Senate resources. Within the discretion of the Member, no rule or law prohibits the offering of a lunch with the Senator. Absent conduct that would reflect discredit upon the Senate, the Committee will not interfere with the judgment of the Member.
Because the charitable donation—here, lunch with the Senator—is contingent upon the presence of a Member, officer, or employee, the amount of the charitable donation is subject to the $2,000 limitation of Senate Rule 36. As a practical matter, this means that when the Member arranges the donation, they should inform the § 501(c)(3) charitable organization that it must limit the bidding at the auction to a maximum of $2,000.
Finally, the Member must report the charitable donation on Part 1 (Honoraria Payments or Payments to Charity in Lieu of Honoraria) of their Financial Disclosure Report.
No. Federal law limits a Member’s ability to recommend candidates for federal “competitive service” positions. Specifically, 5 U.S.C. § 3303 prohibits individuals examining applicants for competitive service positions from receiving or considering a recommendation by a Senator, except as to the character or residence of the applicant. Further, 5 U.S.C. § 2302(b)(2) prohibits recommendations, oral or written, other than recommendations “based on the personal knowledge or records of the person furnishing it, and consist[ing] of either (A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or (B) an evaluation of the character, loyalty, or suitability of such individual.”
Providing a letter of recommendation where the Member does not have personal knowledge of an individual’s work can also raise concerns beyond these statutory limitations. Contact the Committee for specific guidance regarding letters of recommendation.
