Congressional Intervention in the Administrative Process: Legal and Ethical Considerations
Prepared for Members and Committees of Congress
When congressional committees engage in oversight of the administrative bureaucracy, or when
Members of Congress intervene in agency proceedings on behalf of private constituents or other
private entities with interests affecting the Members’s constituency, such interventions involve
varying degrees of intrusion into agency decisionmaking processes. This report will briefly
examine the currently applicable legal and ethical considerations and standards that mark the
limits of such intercessions.
The report initially reviews the judicial development and application of standards for determining
whether congressional pressure or influence will be deemed to have tainted an agency
proceeding. It concludes that the courts, in balancing Congress’s performance of its constitutional
and statutory obligations to oversee the actions of agency officials against the rights of parties
before agencies, have shown a decided predilection for protecting the congressional prerogatives.
Thus where informal rulemaking or other forms of informal decisionmaking are involved, the
courts will look to the nature and impact of the political pressure on the agency decisionmaker
and will intervene only where that pressure has had the actual effect of forcing the consideration
of factors Congress did not intend to make relevant. Where agency adjudication is involved a
stricter standard is applied and the finding of an appearance of impropriety can be sufficient to
taint the proceeding. But even here the courts have required that the pressure or influence be
directed at the ultimate decisionmaker with respect to the merits of the proceeding and that it does
not involve legitimate oversight and investigative functions, before they will intervene.
The report next examines the conduct of Members of Congress and their staffs intervening in
administrative matters from the perspective of ethics and conflict of interest rules, statutes and
guidelines bearing upon a Member’s and staffer’s official duties. It notes that since congressional
intervention and expressions of interest in administrative matters from a Member’s office are
recognized as legitimate, official representational and oversight functions and duties of Members
of Congress, the primary focus of the ethical and statutory conduct restraints is limited to(1) any
improper enrichment or financial benefit accruing to the Member in return for, or because of, his
or her official actions and influences, including the receipt of gifts or payments, or existing
financial interests in, or relating to the matter under consideration; and (2) any overt coercion or
threats of reprisals, or promises of favoritism or reward to administrators from the Member’s
office which could indicate an arguable abuse of a Member’s official representational or oversight
role. Additionally, ethical guidelines in Congress incorporate an “appearance” standard for
Members which would counsel a Member to adopt office procedures and systems which would
prevent an appearance of a “linkage” between interventions and the receipt of things of value,
particularly legitimate campaign contributions, and which would assure that decisions to
intervene are based on the merits of a particular matter.
II. Current Judicial Standards Governing Congressional Influence on Agency
Decisi onmaking ............................................................................................................................ 2
A. The Nature of the Proceeding...............................................................................................3
B. The Foundation Cases..........................................................................................................7
1. Pillsbury Co. v. FTC.......................................................................................................7
2. D.C. Federation of Civic Associations v. Volpe..............................................................8
3. The Critique of Pillsbury and D.C. Federation............................................................10
C. Adjudicatory Rulings Since Pillsbury.................................................................................11
1. Koniag v. Kleppe...........................................................................................................12
2. Gulf Oil Corporation v. FPC........................................................................................13
3. Peter Kiewit Sons’ Co. v. U.S. Army Corps of Engineers.............................................14
4. Power Authority of the State of New York v. FERC.......................................................15
5. State of California v. FERC..........................................................................................15
6. ATX, Inc. v. U.S. Department of Transportation...........................................................16
D. Informal Decisionmaking Rulings Since D.C. Federation................................................18
1. American Public Gas Association v. FPC....................................................................18
2. Town of Orangetown v. Ruckelshaus............................................................................20
3. Chemung County v. Dole..............................................................................................20
4. DCP Farms et al v. Yeutter...........................................................................................21
E. Interference With Agency Rulemaking Proceedings..........................................................23
1. Texas Medical Association v. Mathews.........................................................................23
2. United States ex rel Parco v. Morris.............................................................................24
3. Sierra Club v. Costle.....................................................................................................24
F. Influence That Could Abuse the Agency Investigatory Process..........................................27
1. SEC v. Wheeling-Pittsburgh Steel Corp........................................................................27
2. United States v. Armada Petroleum Corp.....................................................................30
3. United States v. American Target Advertising, Inc........................................................31
G. Summary and Conclusions.................................................................................................31
III. Ethical Standards and Considerations.....................................................................................36
A. House and Senate Guidelines.............................................................................................39
1. Opinion of the House Committee on Standards of Official Conduct............................39
2. Senate Rule on Intervention..........................................................................................40
B. Intervention and Receipt of Things of Value......................................................................41
2. Illegal Gratuities............................................................................................................42
3. Compensation/Conflicts of Interest..............................................................................44
5. Conspiracy to Defraud the Government.......................................................................45
6. Campaign Contributions and Interventions..................................................................48
C. Personal Financial Interest in the Matter............................................................................61
D. Conduct During Interventions............................................................................................64
E. Issues in Particular Intervention Contexts..........................................................................68
1. Federal Employment and Personnel Matters................................................................68
3. Judicial Intervention......................................................................................................71
F. Conclusions Concerning Ethical Issues..............................................................................73
Author Contact Information..........................................................................................................74
The inevitable tension between Congress and the Executive created by our constitutionally
mandated system of separated but shared powers has been the source of continual interbranch
conflict. One manifestation of this struggle occurs when congressional committees engage in
oversight of the administrative bureaucracy; another when Members of Congress attempt to
intervene in administrative proceedings on behalf of private constituents or other private entities
with interests affecting the Member’s constituency. Both such interventions involve varying
degrees of intrusion into agency decisionmaking processes. On relatively rare occasions these
interventions have resulted in court actions challenging the congressional intercession as
exertions of undue political influence on agency decisionmakers which violate the due process
rights of participants in the proceedings in question and impugn the integrity of the agency
decisional processes; or in disciplinary proceedings before ethics committees of either House
alleging that such Member actions violated institutional rules or other ethical standards. Such
challenges have arisen in the context of congressional intercessions into rulemakings,
ratemakings, informal decisionmaking, adjudications, and agency investigations that arguably
would lead to an adjudicatory proceeding.
Past high profile incidents raising questions regarding the legal and ethical propriety of
congressional exertions of influence on administrative decisionmaking have surprisingly
produced only a paucity of authoritative commentary on and analysis of the guiding principles
and standards applicable to the constitutional bases of the roles Members play when they act as 1
part of the committee oversight process or in their individual representative capacities. This
report is designed to provide a contemporary overview of applicable guidelines and
considerations in the judicial and congressional forums. Toward that end, Part II reviews the
judicial development and application of standards for determining whether congressional pressure
or influence will be deemed to have tainted an agency proceeding. It concludes that the courts, in
balancing Congress’s performance of its constitutional and statutory obligations to oversee the
actions of agency officials against the rights of parties before agencies, have shown a decided
predilection for protecting the congressional prerogatives. Thus where informal rulemaking or
other forms of informal decisionmaking are involved, the courts will look to the nature and
impact of the political pressure on the agency decisionmaker and will intervene only where that
pressure has had the actual effect of forcing the consideration of factors Congress did not intend
to make relevant. Where agency adjudication is involved a stricter standard is applied and the
finding of an appearance of impropriety can be sufficient to taint the proceeding. But even here
1 With respect to judicial standards concerning the exertion of congressional influence, see Richard J. Pierce, Jr.,
Administrative Law Treatise, Vol. II, sec. 9.8, 675-79 (4th Ed. 2002) (Pierce Treatise) (courts should “recognize the
need to permit political oversight with respect to policy issues Congress has entrusted to agency decisionmakers.”);
Richard J. Pierce, Jr., Political Control Versus Impermissible Bias In Agency Decisionmaking: Lessons form Chevron
and Mistretta, 57 U. of Chic. L. Rev. 481 (1990)(same)(Political Control); Note, Judicial Restrictions on Improper
Influence in Administrative Decision-making: A Defense of the Pillsbury Doctrine, 6 J. of Law and Politics 135
(1989)(calling for imposition of “appearance of impropriety” standard in any agency proceeding involving
congressional intervention.); Block, Orphaned Rules in the Administrative State: The Fairness Doctrine and Other
Orphaned Progeny of Interactive Regulation, 76 Geo. L.J. 59 (1987)(“[M]embers of Congress should not be judicially
constrained in their efforts to communicate with agencies” during the informal rulemaking process.); Parnell,
Congressional Interference in Agency Enforcement: The IRS Experience, 89 Yale L.J. 1360 (1980)(“The power of
Congress to investigate the IRS is wide-ranging and may effectively be limited only by discretion and prudence.”);
Note, Judicial Limitation of Congressional Influence on Administrative Agencies, 73 Northwestern L. Rev. 931
(1979)(“When the source [of congressional influence] is an authorized committee investigation, no administrative
proceeding should be invalidated unless administrative bias as to adjudicative facts can be discerned.”)
the courts have required that the pressure or influence be directed at the ultimate decisionmaker
with respect to the merits of the proceeding and that it does not involve legitimate oversight and
investigative functions before they will intervene.
Part III of the report examines the conduct of Members of Congress and their staffs intervening in
administrative matters from the perspective of ethics and conflict of interest rules, statutes and
guidelines bearing upon a Member’s and staffer’s official duties in this area. It notes that since
congressional intervention and expressions of interest in administrative matters from a Member’s
office are recognized as legitimate, official representational and oversight functions and duties of
Members of Congress, the primary focus of these ethical and statutory conduct restraints is
limited to(1) any improper enrichment or financial benefit accruing to the Member in return for or
because of his or her official actions and influences, including the receipt of gifts or payments, or
existing financial interests in, or relating to the matter under consideration; and (2) any overt
coercion or threats of reprisals, or promises of favoritism or reward to administrators from the
Member’s office which could indicate an arguable abuse of a Member’s official representational
or oversight role. Additionally, there are ethical guidelines in Congress incorporating broad
“appearance’ standards for Members which could raise ethical concerns in relation to the
acceptance of gifts, favors, donations, and benefits, including campaign contributions, by
Members from those who are directly affected by the Member’s official duties, even in the
absence of a showing of any corrupt bargain, express payment, or any direct connection to an
official act. While campaign contributions from private individuals to Members have a facial
legitimacy and necessity in our government and electoral system which other forms of monetary
transfers to legislators (such as gifts) do not, and may be treated differently, both Houses of
Congress advise members and staff to avoid any appearance of a “linkage” between campaign
contributions and interventions. Such guidance would counsel a Member to adopt office
procedures and systems for evaluating requests for assistance which would prevent any
appearance that interventions decisions are based upon the receipt of things of value, particularly
legitimate campaign contributions, and which would assure that decisions to intervene are, rather,
based on the merits of a particular matter.
Support for claims that an exercise of congressional influence in an agency proceeding may serve
as basis for a challenge to the end product of that decisional process rest on two foundation cases, 2
a 1966 decision of the Fifth Circuit Court of Appeals in Pillsbury Co. v. FTC and a 1971 ruling
of the District of Columbia Circuit Court of Appeals in D.C. Federation of Civic Associations v. 3
Volpe, and a relative handful of judicial rulings since then which have grappled with the question
of whether particular instances of exertion of congressional pressure would serve to taint such a
proceeding. While this case law makes it clear that there are limits to congressional intercession,
whether those limits have been breached in a particular instance is often far less clear. Analysis
has been made difficult by the relative dearth of decisions and the reluctance of courts in those
2 354 F.2d 952 (5th Cir. 1966).
3 459 F.2d 1231 (D.C. Cir. 1971), cert. denied 405 U.S. 1030 (1972).
cases to venture beyond the factual confines of the dispute. The absence of a congressional
spokesperson in most of the cases to present the legislative interest may also be a complicating
Close analysis of the apparently disparate and sometimes seemingly conflicting judicial decisions,
however, reveals a consistent underlying pattern that allows for rationalization of the holdings
and for the formulation of guidelines for application in future situations. The determinative
factors for the courts appear to be the nature of the proceeding involved, the impact the political
pressure had on the decisionmaker, and whether the object of the political intercession is to reflect
the views of members on issues of law and policy. This part of the report will examine the extant
case law to explicate the manner in which the courts are formulating the differing standards that
are applied to the various types of administrative proceedings and the underlying rationale for
The law of undue influence is a still-evolving, difficult to define area of jurisprudence that does
not as yet yield ready answers when applied to particular complex and often politically charged
fact situations. The relatively small body of case law that has developed, however, reflects the
growing sensitivity of the courts to appearing to be engaging in unwarranted intrusions into the
Problems in this area are not subject to easy categorization or generalizations; case by case
evaluations have been the norm. However, the case law does provide broad guidelines within
which analysis may proceed: Where agency actions resembles judicial action, where it involves
formal or informal adjudication, or formal rulemaking, insulation of the decisionmaker from
political influence through public pressure or unrevealed ex parte contacts has been deemed 4
justified by basic notions of due process to the parties involved. But where agency action
involves informal rulemaking of generally applicable policy, thus closely resembling the
legislative process, there is deemed to be far less justification for judicial intervention to protect 5
the integrity of the process
In practice, however, these categorizations serve only as useful starting points for analysis. The
courts have eschewed mechanical application of these categories. That is, an agency proceeding
that has adjudicatory elements will not be pigeonholed automatically as a case requiring the 6
highest level of judicial scrutiny. Similarly, an informal rulemaking may not be reflexively dealt 7
with as a matter of pure policymaking and accorded extreme deference. Rather, the courts appear
to be making their determinations in this area by ascertaining where on the
adjudication/policymaking continuum the proceeding falls and then applying the factors most 8
appropriate to that particular situation. The task of analysis in such cases is thus threefold: (1)
4 E.g., Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966).
5 Sierra Club v. Costle, 657 F.2d 298, 400-01 (D.C. Cir. 1981).
6 See, e.g., Gulf Oil Corp. v. FPC, 563 F.2d 588 (3d Cir. 1977). Also compare Association of National Advertisers v.
FTC, 627 F.2d 1151 (D.C. Cir. 1979), cert denied 447 U.S. 421(1980)(hybrid rulemaking proceeding held legislative
7 Texas Medical Association v. Mathews, 408 F. Supp. 303 (W.D. Tex. 1976).
8 See Sokaogon Chippewa Community v. Babbitt, 929 F. Supp. 1165, 1174-76 (W.D. Wisc. 1996) (“[T]he propriety of
congressional contacts depends on the nature of the administrative proceeding”); Sierra Club v. Costle, 657 F. 2d 298,
determination of the type of proceeding involved; (2) identification and application of the factors
relevant to that type of proceeding; and, if taint is involved, (3) determining the remedies that
may be available. The following discussion will treat each of these issues in turn. It seems useful,
however, to start with an overview and description of the distinguishing elements of the various
proceedings in the continuum as it moves from adjudication toward varieties of informal, non-
Administrative action pursuant to the Administrative Procedure Act (APA)9 is either adjudication
or rulemaking. The two processes differ fundamentally in purpose and focus and as a
consequence have imposed on them sharply divergent statutory and constitutional procedural 10
requirements. Thus the APA defines “adjudication” as the “agency process for the formulation 11
of an order.” The term “order” is then defined as “the whole or part of a final disposition,
whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other 12
than a rulemaking but including licensing.” A “rulemaking” is the “agency process for 13
formulating, amending, or repealing a rule.” Finally, a “rule” is defined to mean:
. . . the whole or a part of an agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency and includes the approval or
prescription for the future of rates, wages, corporate or financial structures or reorganizations
thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, 14
or accounting, or practices bearing on any of the foregoing.
The definitive explanation of the interrelationship of these definitions and the dichotomous 15
scheme of the APA was provided the Attorney General in 1947.
The object of the rule making proceeding is the implementation or prescription of law or
policy for the future, rather than the evaluation of a respondent’s past conduct. Typically, the
issues relate not to the evidentiary facts, as to which the veracity and demeanor of witnesses
would often be important, but rather to the policy-making conclusions to be drawn from the
facts . . . Conversely, adjudication is concerned with the determination of past and present
rights and liabilities. Normally, there is involved a decision as to whether past conduct was
400 (D.C. Cir. 1981).
9 5 U.S.C. 551 et seq. (2000).
10 Assoc. of National Advertisers, Inc. v. FTC 627 F.2d 1151, 1160-61 (D.C. Cir. 1979), cert. denied 447 U.S. 921
11 5 U.S.C. 551 (7) (2000).
12 5 U.S.C. 551 (6) (2000). “Licensing” is defined to include “the agency process respecting the grant, renewal, denial
revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license.” 5
U.S.C. 551 (9)(1988).
13 5 U.S.C. 551 (5) (2000).
14 5 U.S.C. 551 (4) (2000).
15 Attorney General’s Manual on the Administrative Procedure Act 14 (1947). The manual is a contemporaneous
interpretation of the APA. Because of “the role played by the Department of Justice in drafting the legislation,” its
interpretation and explanations have been accorded significant deference by the courts. See Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519, 546 (1978); Assoc. of National Manufacturers, Inc. v. FTC, supra footnote 6,
627 F.2d at 1160 n. 15.
unlawful, so that the proceeding is characterized by an accusatory flavor and may result in 16
In sum, then, rulemaking involves the formulation of a policy or interpretation which the agency
will apply in the future to all persons engaged in the regulated activity. Adjudication is the
administrative equivalent of a judicial trial. It applies policy to a set of past actions and results in
an order against (or in favor of) the named party. The focus of rulemaking is prospective. The
primary focus of adjudication is retrospective.
Administrative rulemaking and adjudication may be conducted pursuant to either informal or
formal procedures. Informal rulemaking requires the administrative agency, following publication
of a proposed rule in the Federal Register, to provide “interested persons an opportunity to 17
participate in the rulemaking through submission of written data, views or arguments.” Courts
reviewing such proceedings are required to uphold informal rulemaking decisions unless those
decisions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 18
Formal rulemaking is invoked when “rules are required by statute to be made on the record after 19
opportunity for agency hearing.” Under the APA, formal rulemaking must include a trial-type
hearing at which a “party is entitled to present his case or defense or oral or documentary
evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required 20
for a full and true disclosure of the facts.” Judicial review of formal rulemaking requires a court 21
to set aside a rule that is “unsupported by substantial evidence” on the record.
Formal adjudication is governed by section 554 of the APA and arises in “every case of
adjudication required by statute to be determined on the record after opportunity for an agency 22
hearing.” Section 554 incorporates the procedural requirements of section 556 and 557 and
affords parties to a formal adjudication the right to present evidence and to conduct cross 23
examination. Judicial review of formal adjudication, like that of formal rulemaking, is governed
by the substantial evidence standard.
Informal adjudication occurs when an agency determines the rights or liabilities of a party in a 24
proceeding to which section 554 does not apply. The APA makes no provision for informal
adjudications—adjudications unaccompanied by the protections of an on the record, formal,
judicial-like trial. But since these informal adjudications involve individual rights rather than
issues of general policy, the courts have recognized they implicate constitutional due process
16 See also U.S. v. Florida East Coast Ry., 410 U.S. 224, 244-46 (1973).
17 5 U.S.C. 553 (c) (2000).
18 5 U.S.C. 553 (2) (A).
19 5 U.S.C. 553 (c).
20 5 U.S.C. 553 (d).
21 5 U.S.C. 706 (2)(E).
22 5 U.S.C. 554 (a).
23 5 U.S.C. 554 (b)-(d). Section 557(d) also prohibits ex parte contracts with or by anyone “who is or may be
reasonably expected to be involved in the decisional process” of an adjudicatory proceeding.
24 See, e.g. Camp v. Pitts, 411 U.S. 138, 140-42 (1973)(per curiam); Aircraft Owners and Pilots Assoc. v. FAA, 600
F.2d 965, 969-70 (D.C. Cir. 1979); United States Lines, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978).
values.25 Thus, although due process does not generally require a full scale judicial trial, informal
adjudications must nevertheless conform “with the notion of a fair hearing and with the principles 26
of fairness implicit in due process.” In such proceedings, the agency’s final decision is reviewed
under the APA’s arbitrary and capricious standard which requires a court to conduct a “searching
and careful” inquiry based upon “the full administrative record that was before the [agency 27
decisionmaker] at the time he made his decision.”
It is important to note that informal decisionmaking, that is, governmental actions that are taken
without an evidentiary hearing and formal record, constitute by far the vast bulk of government
decisionmaking. As one commentator has noted:
... However defined, informal action is the mode in which government operates. A common
and loose figure is that ninety percent of the government’s business is accomplished by
informal action. The figure is much too low. In terms of quantity, surely much less than one
percent of the actions of the federal government are based upon evidentiary hearings. And, if
one were possessed of a divine calibrator that could measure “importance,” it is doubtful that
weighing the transactions by their importance would reduce the predominance of informal 28
action in the operations of government.
As a consequence, this category of decisionmaking has been accorded special attention by the
A final important category of agency action that has been the subject of undue influence litigation
is investigation. Most administrative action, including much of that which occurs in an informal
as well as in a formal proceeding, is conditioned by information obtained through an agency’s
prior investigation. Administrative agencies do not have unrestricted power to demand
information merely for satisfying their curiosity. The agency’s command can be enforced only if
it is authorized by law and issued in a lawful manner. Additionally, constitutional limitations
hedge administrative power to investigate. Within these constraints, the courts have
acknowledged the importance of judicial deference to administrative agencies in conducting 29
investigations. Agency decisions to conduct investigations are deemed “committed entirely to 30
agency discretion” and are unreviewable except where they are made in “bad faith” and the 31
enforcement of the administrative process would be an abuse of the judicial process.
25 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 542 (1978); Sierra Club v. Costle, 657 F.2d 298, 400
(D.C. Cir. 1981).
26 U.S. Lines v. FMC, 584 F. 2d 519, 539 (1978).
27 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 420 (1971); U.S. Lines v. FMC, supra footnote
26, 584 F.2d at 541-42.
28 Gardner, The Informal Actions of Government, 26 Amer. U. L. R. 799, 799-800 (1977). The types of administrative
decisions that may comprise the legal category of “informal actions” would include settlement, negotiation and
alternative dispute resolution; review and disposal of applications and claims for social welfare benefits, immigration
matters, etc.; test and inspection programs; suspensions, seizures and recalls; informal supervision (such as in bank
regulation); the use by agencies of publicity; and responses to requests for agency advice and declaratory orders, among
others. See, Ernest Gellhorn and Ronald M. Levin, Administrative Law and Process, 156-90 (1997).
29 See, United States v. La Salle National Bank, 437 U.S. 298, 316-17 (1978).
30 City of Chicago v. United States, 396 U.S. 162, 165 (1969); Chum Mechling Corp. v. United States, 566 F.2d 722,
724-25 (D.C. Cir. 1977); Dresser Industries, Inc. v. United States, 596 F.2d 1231, 1235 N.1 (5th Cir. 1979), cert denied, st
444 U.S. 1044 (1980); SEC v. Howatt, 525 F.2d 226, 229 (1 Cir. 1975); Kixmiller v. SEC, 492 F.2d 641, 645 (D.C.
Cir. 1974) (per curiam).
31 United States v. American Target Advertising, Inc., 257 F.3d 348 (4th Cir. 2001). SEC v. Wheeling-Pittsburgh Steel
The cases indicate, at least in their rhetoric, that identification and categorization of the subject
proceedings are significant. We turn now to a review of the pertinent case law which serves to
illustrate the types of factors the courts have identified as relevant in different kinds of
The seminal case with respect to the nature and extent of permissible congressional intercession
into agency adjudicatory or quasi-adjudicatory proceedings is the 1966 decision of the Court of 32
Appeals for the Fifth Circuit in Pillsbury Company v. Federal Trade Commission, which held a
Federal Trade Commission (FTC) divestiture order invalid because the Commission’s decisional
process had been tainted by impermissible congressional influence. At issue was an intense
interrogation at a Senate subcommittee hearing of the FTC Chairman and several members of his
staff on a key issue in an antitrust adjudication involving the Pillsbury Company which was then
pending before the Commission. The Senators expressed opinions on the issue and criticized the
FTC for its interpretation of section 7 of the Clayton Act in a previous interlocutory order in 33
Pillsbury’s favor. The clear message of the Senate committee criticism was that the FTC should 34
have ruled against Pillsbury. In its subsequent final decision the Commission ruled as the
Committee had suggested. The appeals court found the Senate inquiry to be an “improper
intrusion into the adjudicatory process of the Commission.” The court based its holding on the
fact that the agency was acting in a judicial capacity. As a consequence, the private litigants had a
“right to a fair trial” and the “appearance of impartiality” as part of the general guarantees of
procedural due process when the agency is acting in a judicial or quasi-judicial capacity. The
court emphasized the judicial nature of the function the agency was performing and explained
that in order to protect the integrity of that type of process, it was proscribing the subcommittee’s
action because it cast doubt upon the “appearance of impartiality” of the decisionmakers, and not
because of any finding that the Commission had actually been influenced.
... However, when [a congressional] investigation focuses directly and substantially upon the
mental decisional processes of a Commission in a case which is pending before it, Congress
is no longer intervening in the agency’s legislative function, but rather, in its judicial
function. At this latter point, we become concerned with the right of private litigants to a fair
trial and, equally important, with their right to the appearance of impartiality, which cannot
be maintained unless those who exercise the judicial function are free from powerful external
Corp., 648 F.2d 118 (3d Cir. 1981) (en banc); United States v. RFB Petroleum, Inc., 793 F.2d 528, 532-33 (Em. Appl.
1983); United States v. Phoenix Petroleum Corp., 571 F. Supp. 16 (S.D. Tex 1982); United States v. Armada
Petroleum Corp., 562 F. Supp. 43 (S.D. Tex. 1982).
32 354 F.2d 952 (5th Cir. 1966).
33 Early in the proceeding, the FTC had issued an interlocutory order announcing it would use the rule of reason rather
than a per se rule to evaluate acquisitions under the Clayton Act.
34 The committee chairman’s questioning of the FTC chairman, as well as that of the committee members was hostile
and pointed and expressed the strongly held view that the FTC should use the per se rule, and both the senators and the
FTC chairman frequently referred to the facts of the Pillsbury case to illustrate their views. See 354 F.2d at 955-62.
To subject an administrator to a searching examination as to how and why he reached
his decision in a case still pending before him, and to criticize him for reaching the “wrong”
decision, as the Senate subcommittee did in this case, sacrifices the appearance of
impartiality—the sine qua non of American judicial justice—in favor of some short-run
notions regarding the Congressional intent underlying an amendment to a statute, unfettered
administration of which was committed by Congress to the Federal Trade Commission.
It may be argued that such officials as members of the Federal Trade Commission are
sufficiently aware of the realities of governmental, not to say “political,” life as to be able to
withstand such questioning as we have outlined here. However, this court is not so
“sophisticated” that it can shrug off such a procedural due process claim merely because the
officials involved should be able to discount what is said and to disregard the force of the
intrusion into the adjudicatory process. We conclude that we can preserve the rights of the
litigants in a case such as this without having any adverse effect upon the legitimate exercise
of the investigative power of Congress. What we do is to preserve the integrity of the judicial 35
aspect of the administrative process.
D.C. Federation of Civic Associations v. Volpe,36 decided by the D.C. Circuit five years later,
provides an apt counterpoint to Pillsbury. D.C. Federation also involved a claim of undue
congressional influence but not within the context of a judicial or quasi-judicial proceeding. The
principles enunciated by the court as necessary to establish a claim of taint in such a situation
mark out the boundaries of permissible congressional action which have influenced courts since
then. D.C. Federation involved the approval by the Secretary of Transportation of construction of
the Three Sisters Bridge across the Potomac River. Two issues were presented: first, whether the
Secretary failed to comply within statutory requirements prior to approval of construction; and
second, whether the Secretary’s determinations were tainted by extraneous pressures. With regard
to the first issue, a majority of the court found that in a number of critical respects the Secretary
had failed to comply with applicable statutory standards which therefore required a remand for
further agency determinations.
Although this finding would have been sufficient to dispose of the case, Judge Bazelon chose to
deal with the “taint” issue. That involved the allegation that threats by the Chairman of the House
appropriation subcommittee, which had jurisdiction over the funding of District of Columbia’s
transportation construction projects to deny funds for the District’s proposed subway system
unless the bridge project was approved and whether those threats had a legal impact on the
Secretary’s subsequent approval decision. Judge Bazelon stated that he was “convinced that the
impact of this is sufficient, standing alone, to invalidate the Secretary’s action. Even if the
Secretary had taken every formal step required by every applicable statutory provision, reversal
would be required, in my opinion, because extraneous pressure intruded into the calculus of 37
considerations on which the Secretary’s decision was based.”
Judge Bazelon pointed out that he was alone in this opinion: “Judge Fahy, on the other hand, has
concluded that since critical determinations cannot stand irrespective of the allegations of
35 Id. at 964.
36 459 F.2d 1231 (D.C. Cir. 1971), cert. denied 405 U.S. 1030 (1972).
37 459 F.2d at 1245-46.
pressure, he finds it unnecessary to decide the case on this independent ground.”38 But it is to be
noted that the disagreement between Judges Bazelon and Fahy was not as to the applicable
principle of law but rather as to whether the district court below had found there had been any
consideration by the Secretary of extraneous influence:
While Judge Fahy is not entirely convinced that the District Court ultimately found as a fact
that the extraneous pressure had influenced the Secretary—a point which is for me clear—he
has authorized me to note his concurrence in my discussion of the controlling principle of
law: namely, that the decision would be invalid if based in whole or in part on the pressures
emanating from Representative Natcher. Judge Fahy agrees, and we therefore hold, that on
remand the Secretary must make new determinations based strictly on the merits and 39
completely without regard to any considerations not made relevant in the applicable statute.
Judge Bazelon’s opinion makes it clear that the court’s standard—that extraneous congressional
influences actually shown to have had an impact on an agency decision will taint such 40
administrative action–is crafted for the special administrative circumstances of the situation
before it: where the decisional process was neither judicial or legislative in nature.
The District Court was surely correct in concluding that the Secretary’s action was not
judicial or quasi-judicial, and for that reason we agree that much of the doctrine cited by
plaintiffs is inapposite. If he had been acting in such a capacity, plaintiffs could have
forcefully argued that the decision was invalid because of the decisionmaker’s bias or
because he had received ex parte communications. Well-established principles could have
been invoked to support these arguments, and plaintiffs might have prevailed even without
showing that the pressure had actually influenced the Secretary’s decision. With regard to
judicial decisionmaking, whether by court or agency, the appearance of bias or pressure may
be no less objectionable than the reality. But since the Secretary’s action was not judicial,
that rationale has no application here.
If, on the other hand, the Secretary’s action had been purely legislative, we might have
agreed with the District Court that his decision could stand in spite of a finding that he had
considered extraneous pressures. Beginning with Fletcher v. Peck, the Supreme Court has
maintained that a statute cannot be invalidated merely because the legislature’s action was
motivated by impermissible considerations (except, perhaps, in special circumstances not
applicable here). Indeed, that very principle requires us to reject plaintiffs’ argument that the
approval of the bridge by the District of Columbia City Council was in some sense invalid.
We do not sit in judgment of the motives of the District’s legislative body, nor do we have
authority to review its decisions. The City Council’s action constituted, in our view, the
approval of the project required by the statute.
Thus, the underlying problem cannot be illuminated by a simplistic effort to force the
Secretary’s action into a purely judicial or purely legislative mold. His decision was not
“judicial” in that he was not required to base it solely on a formal record established at a
public hearing. At the same time, it was not purely “legislative” since Congress had already
established the boundaries within which his discretion could operate. But even though his
action fell between these two conceptual extremes, it is still governed by principles that we
38 Id. at 1246.
40 Judge Bazelon emphasized that he believed that under the circumstances of the case, the congressional threats
involved were taken into account by the Secretary: “In my view, the District Court clearly and unambiguously found as
a fact that the pressure exerted by Representative Natcher and others did have an impact on Secretary Volpe’s decision
to approve the bridge.” 459 F.2d at 1246.
had thought elementary and beyond dispute. If, in the course of reaching his decision,
Secretary Volpe took into account “considerations that Congress could not have intended to
make relevant,” his action proceeded from an erroneous premise and his decision cannot
stand. The error would be more flagrant, of course, if the Secretary had based his decision
solely on the pressures generated by Representative Natcher. But it should be clear that his 41
action would not be immunized merely because he also considered some relevant factors.
Thus, the court appeared to view undue influence cases as classifiable on a continuum, with the
applicable standard dependant on where on the continuum the nature of the case places it. If a
proceeding is one in which judicial or quasi-judicial functions are being exercised, then the
highest standard of conduct is required, and only a showing of interference with merely the
“appearance of impartiality,” without proof of actual partiality or other effect of the extraneous 42
influences, is necessary. If the decisionmaking is “purely legislative” (policymaking) in nature,
such as takes place in informal rulemaking, then the courts will be most deferential, even in the
face of heavy extraneous pressures, to the political nature of the process. Finally, where a
decisional process involves application of ascertainable legislative standards by an agency official
in a situation that cannot be categorized as either judicial or legislative, i.e., informal
decisionmaking, then a claim of impermissible interference will be sustained only on a showing
of actual effect. The courts appear to have been guided by this suggested mode of analysis.
The rulings in Pillsbury and D.C. Federation have received surprisingly limited attention over the
years, but what commentary there is has been generally critical, emphasizing both courts’ failure 43
to give proper weight to the values of the political process in such cases. An influential 1990
article by Professor Richard J. Pierce, Jr., a leading administrative law scholar, reflects practical 44
concerns raised by the decisions. Pierce agrees that the Pillsbury court reached a defensible
result in light of the circumstances presented: the contested issues of fact were at least arguably
adjudicatory in nature rather than legislative and the intense interrogation could be viewed as
pressure to resolve the facts against Pillsbury, thereby creating the appearance of impropriety.
Thus, even though it is impossible to determine whether the FTC’s resolution of those facts was
in fact influenced by the hostile questions, Pierce argues that one could infer that the FTC
purposely resolved adjudicative facts against Pillsbury in response to the committee’s attacks. th
Pierce’s concern, however, is that the 5 Circuit did not decide the case on this narrow ground,
but announced the far broader principle that “[w]hen [a congressional] investigation focuses
directly and substantially upon the mental decisional processes of a Commission in a case before 45
it, Congress is . . . intervening [impermissibly] in the agency’s adjudicatory function.”
Application of such a broadly stated prohibition in future cases, Pierce asserts, could result in
findings attributable to congressional pressure without regard to the actual context of the
congressional proceeding and
would constitute an unjustified judicial interference with the political process of
policymaking. Whether to apply the rule of reason or a per se rule to acquisitions under the
41 459 F.2d at 1246-48 (footnotes omitted).
42 The court quite clearly accepted the Pillsbury doctrine. See 459 F.2d at 1246 notes 75-78.
43 See commentaries listed in footnote 1.
44 Political Control, supra footnote 1.
45 Political Control at 500, quoting Pillsbury.
Clayton Act is purely a policy decision . . . Legislators should be free to express their views
on this policy issue, and FTC commissioners should be free to change their minds and adopt
those views. This is the political process functioning properly. It is of no consequence to the
judiciary whether the FTC changes its policy because it is persuaded by the merits of the
legislators’ arguments, or because it fears that the legislature will retaliate . . . Similarly, the
courts should not distinguish between policy decisions made through rulemaking and policy
decisions developed in adjudicatory proceedings. To paraphrase Justice Holmes, judicial
process values should trump political process values only when an agency has singled out an 46
individual for adverse treatment.
While finding Pillsbury’s holding defensible, Professor Pierce deems D.C. Federation
indefensible, “stand[ing] for the principle that two politically accountable branches cannot 47
compromise their frequently differing policy preferences.” In Pierce’s view, the case was about
a political dispute over the allocation of transportation funds between the administering agency
and the key congressional appropriating subcommittee. The secretary preferred seeing a subway
built; the subcommittee (and Congress) wanted a bridge built. After a heated public dispute, a
political compromise was effected whereby both projects would go forward. But the appeals court
intervened finding that the secretary’s decisions, which were part of the political deal, were
infected with impermissible bias as a result of legislative branch pressure. In the words of the
court, “the impact of this pressure is sufficient, standing alone, to invalidate the Secretary’s 48
action.” In Professor Pierce’s view:
D.C. Federation is hard to explain in a democracy in which two politically accountable
branches of government share the power to make policy. The agency was not adjudicating a
dispute involving individual rights; nor was it resolving contested issues of adjudicative fact.
Perhaps the case stands for the principle that the two politically accountable branches cannot
compromise their frequently differing policy preferences. But if so, it is a singularly arrogant
decision. The Constitution created a system of shared and coordinated policymaking by the
two politically accountable branches. The Framers included many features to force
compromise between the two branches: The President’s role in the legislative process, the
Senate’s role in approving policymaking officials for the executive branch, the Senate’s role
in ratifying treaties and the exclusive power of the House to initiate tax and appropriations
bills. Our nation would be ungovernable in the absence of constant policy compromises 49
between the executive and legislative branches.
As will be seen in the following review of the undue influence case law since the decisions in
Pillsbury and D.C. Federation, Professor Pierces’s pragmatic views appear to have been
Since the decision in Pillsbury, while courts have continued to recognize verbally the vitality of
that precedent, only one court has actually overturned a quasi-judicial agency proceeding on
grounds of undue political influence, and the most recent judicial rulings have evinced a clear
46 Id. at 500-01.
47 Id. at 496.
48 D.C. Federation, supra 459 F.2d at 1244.
49 Political Control at 496-97. See also Pierce Treatise, supra footnote 1, at 676-78, reiterating and updating his 1990
critique of Pillsbury and D.C. Federation.
predilection to defer to congressional actions where they involve the legitimate exercise of
legislative oversight and investigative functions.
The solitary ruling referred to occurred in Koniag v. Kleppe,50 in which a district court set aside
adjudicatory decisions of the Secretary of the Interior with respect to the eligibility of several
communities to receive land and money under the Alaska Native Claims Settlement Act
(ANSCA), at least in part because it found improper congressional pressure exerted on the
Department and the Secretary. There, a congressional subcommittee held oversight hearings on
the administration of the Act while the proceedings in question were pending. The district court,
however, found that the hearings went substantially beyond the oversight function.
The hearings took place during the time that the validity of certain claims being
advanced by the plaintiffs was being litigated before the Secretary and following upon earlier
correspondence which the Congressman had addressed to various subordinates of the
Secretary. The stated purpose of the hearings was to present a forum for discussing the
implementation of the Act but in fact the Committee, through its chairman and staff
members, probed deeply into details of contested cases then under consideration, indicating
that there was “more than meets the eye.” The entire rule-making process was re-examined,
travel vouchers and other information were sought to probe the adequacy of the
investigations made, all papers in the pending proceedings were demanded, the accuracy of
data and procedures was questioned, and constantly the Committee interjected itself into 51
aspects of the decisionmaking process.
When the departmental officials expressed concern about the integrity of the quasi-judicial
administrative process, the Chairman several times stated that it was not his purpose to pressure
the Department, but he many times stated his doubts that the law was being properly carried out.
The court noted: “On key issues now in dispute before the Court, representatives of the
Government were obligated to take positions as to the interpretation of the Act. A strenuous effort
was made by the Chairman to encourage protest and appeals, coupled with comments indicating
his clear impression that all that could be done was being done and that some of the results being 52
reached were contrary to congressional intent.”
Two days before the Secretary made his determination on the eligibility of the villages, the
Chairman sent a letter to him requesting that he postpone his decision on the matter pending a
review and opinion by the Comptroller General because it “appears from the testimony [at the
hearings] that village eligibility and Native enrollment requirements of ANSCA have been
misinterpreted in the regulations and that certain villages should not have been certified as 53
eligible for land selections under ANSCA.” On these facts the district court vacated the
Secretary’s eligibility decisions and reinstated the decisions initially rendered by the Bureau of
Indian Affairs (BIA).
50 405 F. Supp. 1360 (D.D.C. 1975), modified sub nom. Koniag v. Andrus, 580 F.2d 601 (D.C. Cir. 1978), cert. denied,
439 U.S. 1052 (1978).
51 405 F. Supp. at 1371.
52 Id. at 1371-72.
On appeal, the District of Columbia Circuit Court of appeals disagreed in part with the lower
court’s application of the relevant law but not with its validity. Thus, with regard to the
Chairman’s conduct of the hearings, the appeals court found fault with the district court’s ruling
because none of the agency officials subjected to the Chairman’s interrogations was an agency
The hearings in question were called by Congressman Dingell in June of 1974 at the
time the Board and the Secretary were considering most of these cases.... During the hearings
Congressman Dingell made no secret of his displeasure with some of the initial BIA
eligibility determinations. Nevertheless, we think the Pillsbury decision is not controlling
here because none of the persons called before the subcommittee was a decisionmaker in
these cases. One possible exception was Mr. Ken Brown, a close advisor to the Secretary
who briefed him on the cases at the time he decided to approve the Board’s recommended
decisions. However, even if we assume that the Pillsbury doctrine would reach advisors to
the decisionmaker, Mr. Brown was not asked to prejudge any of the claims by characterizing
their validity. See Pillsbury Co. v. FTC, supra at 964. The worst cast that can be put upon the
hearing is that Brown was present when the subcommittee expressed its belief that certain
villages had made fraudulent claims and that the BIA decisions were in error. This is not 54
With regard to the Chairman’s letter, however, the court of appeals found “it compromised the
appearance of the Secretary’s impartiality,” and thereby tainted the decision, citing Pillsbury
approvingly. But rather than reinstate the BIA decisions, the matter was remanded to the
Secretary since three and a half years had passed and a new Secretary of a new Administration 55
had taken office, thus making possible a fair and dispassionate treatment of the matter.
Other than Koniag, reviewing courts have consistently upheld congressional intercessions into
adjudicatory proceedings against undue political influence challenges. In Gulf Oil Corporation v. 56
FPC, for example, petitioners sought to overturn a Federal Power Commission (FPC) order
requiring delivery of larger quantities of natural gas. In upholding the order, the appeals court
rejected a claim that members and staff of the FPC had been subjected to improper interrogation
and interference in the decision of the matter by the Subcommittee on Oversight and
Investigations of the House Interstate and Foreign Commerce Committee at hearings and in
correspondence. The court recognized the relevance of Pillsbury to such an adjudicatory
proceeding but acknowledged that it had to be sensitive to the legislative importance of
congressional committees in oversight and investigation and recognized that “their interest in the
objective and efficient operation of regulatory agencies serves a legitimate and wholesome 57
function with which we should not lightly interfere.” Balancing the interests of integrity of an
adjudicatory proceeding and congressional oversight, the court found determinative distinctions
between Pillsbury and the case before it. First, the court found that the subcommittee was not
concerned with the merits of the agency’s decision, as was the situation in Pillsbury, but “was 58
directed at accelerating the disposition and enforcement of the FPC’s compliance procedures.”
54 580 F.2d at 610.
56 563 F.2d 588 (3d Cir. 1977).
57 563 F.2d at 610.
58 Id. at 611.
Nor did the court find any effort to influence the Commission in reaching any decision on the
specific facts of the case or any factual prejudice. Any intrusions into the merits of the FPC’s
decision were found to be “incidental to the purpose of accelerating” the agency’s disposition of
the case. Those “incidental intrusions” were found not to have had serious influence on the
agency because (1) the interrogation did not reflect the majority view of the subcommittee; (2)
the agency did not accede to Members’ requests and continued with the show cause proceeding;
and (3) the ultimate resolution of the issue was the same as it had been in proceedings concluded 59
a year prior to the hearings in question. Concluding that the claim of prejudice could not be
sustained under the facts and circumstances of the case, the court recapitulated the factors it had
taken into consideration:
Weighing these factors–the importance and need for Congressional oversight of
regulatory agencies, the Commission’s evident strong backbone in resisting subcommittee
pressure, the Commission’s identical resolution of each issue in its prior decision, the
entirely legal nature of the Commission’s decision, and our agreement with that decision–
against our commitment to the principle that administrative agencies must be allowed to
exercise their adjudicative functions free of Congressional pressure, we conclude that the
legislative conduct in this case did not affect the fairness of the Commissions proceedings 60
and does not warrant our setting aside the Commission’s order.
In Peter Kiewit Sons’ Co. v. U.S. Army Corps of Engineers,61 the appeals court dealt with the
effects of the conduct of a Senator at prior congressional investigations on the subject of
debarment of government contractors convicted of bid-rigging and similar offenses, and his
recommendations and status inquiries contemporaneous with an ongoing debarment proceeding.
The plaintiff, the subject of the debarment proceeding, claimed that the Senator’s persistence in
the subject area, and his particular interest in its case, compromised the integrity of the
administrative proceeding. The district court agreed. On appeal, the District of Columbia Circuit
The appeals court acknowledged that a judicial or quasi-judicial proceeding could be invalidated
by the appearance of bias or pressure and that under that standard “pressure on the decisionmaker 62
alone, without proof or effect on the outcome, is sufficient to vacate a decision.” Thus, “[t]he
test is whether ‘extraneous factors intruded into the calculus of consideration’ of the individual 63
decisionmaker.” In the case before it, the court found neither actual nor apparent congressional
interference since the Senator had never communicated directly with the ultimate decisionmaker
in the debarment, the Assistant Judge Advocate General for Civil Law, nor was it shown that that
official was even aware of the Senator’s communications.
60 Id. at 612.
61 714 F.2d 163 (D.C. Cir. 1983).
62 714 F.2d at 169.
63 Id. at 170 (emphasis by court).
Challenged congressional communications in an adjudicatory setting were next rejected in Power 64
Authority of the State of New York v. FERC. This was an action for review of a series of
decisions by the Federal Energy Regulatory Commission (FERC) which involved, inter alia, the
claim that four Members of Congress allegedly engaged in ex parte communications with FERC
in connection with a proceeding for a declaratory order regarding the allocation of power
generated by waters of the Niagara River. The communications in question consisted of a letter
from two House Members to President Reagan which the President forwarded to the Chairman of
FERC, and a press conference attended by the four defendants, FERC officials and the public, at
which the petitioners urged reversal of an administrative law judges’s decision against them. At
the time FERC was considering petitions for rehearing, one of the petitioners filed a motion with
FERC to deny rehearing because the proceeding had been tainted. The Commission denied the
motion on the ground that the ex parte communications had not undermined “the integrity of ...
[the Commission’s] processes.” That same decision also resolved the merits of the proceeding and
the Municipal Electric Utilities Association of New York (MEUA) and other parties sought
The Second Circuit Court of Appeals summarily rejected MEUA’s contentions with the following
Ex parte communications by Congressmen or any one else with a judicial or quasi-
judicial body regarding a pending matter are improper and should be discouraged. On the
other hand, the mere existence of such communications hardly requires a court or
administrative body to disqualify itself. Recusal would be required only if the
communications posed a serious likelihood of affecting the agency’s ability to act fairly and
impartially in the matter before it. Gulf Oil Corp. v. FPC, 563 F. 2d 588, 611-12 (3d Cir.
1977). In resolving that issue, one must look to the nature of the communications and
particularly to whether they contain factual matter or other information outside of the record,
which the parties did not have an opportunity to rebut. See Professional Air Traffic
Controllers Organization v. FLPA, 672 F. 2d 109, 112-13 (D.C. Cir. 1982); United States
Lines v. Federal Maritime Commission, 584 F.2d 519, 533-34 (D.C. Cir. 1978).
The communications here fall far short of meeting these requirements. No new evidence
was introduced. There was nothing secret about the letters. MEUA was promptly made
aware of the correspondence by the Commission and had a full opportunity to comment and
respond. Since MEUA had no rebuttal evidence to offer– indeed, none was called for - an 65
evidentiary hearing was unnecessary. The Commission properly denied MEUA’s motion.
The two most recent appellate court rulings continue the trend of the courts not to interfere with
congressional attempts to influence quasi-adjudicatory proceedings, emphasizing judicial
recognition of the important constitutional role of oversight and investigation and the
demonstrated ability of agencies to shield their sensitive adjudicatory processes from due process 66
intrusions. In State of California v. FERC, an applicant for a license to build a hydroelectric
64 743 F.2d 93 (2d Cir. 1984).
65 743 F.2d at 110.
66 966 F.2d 1541 (9th Cir. 1992).
facility challenged the award of a conditioned license on the grounds, among others, that letters
from the Chairman of the House Energy and Commerce Committee unduly influenced, and
thereby tainted, the entire sequence of Federal Energy Regulatory Commission orders which
resulted in the conditioned license, relying on the Pillsbury case. In three letters to FERC, the
Chairman complained that the agency had not followed the recently enacted dispute resolution 67
procedures under the Federal Power Act. In response to those complaints, FERC reopened
dispute resolution negotiations with State and federal fish and wildlife agencies prior to the
conclusion of the licensing process. The Chairman also sent two letters to the agency urging it to
review its two decades old interpretation of the Federal Land Policy and Management Act
(FLPMA) that a hydroelectric project sponsor was not required to obtain a right-of-way permit
over public lands from the Bureau of Lands Management of the Department of Interior because
FERC had exclusive jurisdiction over federal hydroelectric development. The Chairman put forth
a contrary view and requested and received support for that view in a report by the General
Accounting Office (GAO). FERC, after initially rejecting the Chairman’s contention and
reaffirming its long held interpretation during the course of the licensing proceeding, reversed its
course after receiving the GAO report.
The appeals court rejected both objections, holding that neither rose “to the level of undue
congressional influence described in Pillsbury nor do they adversely affect the appearance of 68
impartiality in this case.” FERC’s decision to open the dispute resolution process after receipt of
the Chairman’s letters was designed, the court found, to “correct a procedural problem” and “was
based on its own independent analysis of the record in this proceeding, and was an effort to 69
establish fair procedures to allow the parties and the Commission to investigate.” Since the
negotiation requirements were so recent both the Chairman “and the Commission were 70
understandably concerned about getting off to a good start.” With respect to the successful
urging that FERC change its long held interpretation of FLPMA, the court explained that
Pillsbury was not implicated because “FERC gave a reasoned explanation for its reversal of its
original interpretation of FLPMA, and this provides substance for its claim that it addressed and 71
resolved the right-of-way issue under its own independent and detailed analysis of the issue.”
The court further noted that the fact that it found (later in its ruling) that the reversal of its past
interpretation was legally incorrect was irrelevant since the record of the proceeding supported
that it had gone through a process of reasoned analysis. “In short, [the Chairman’s] letters,
expressing his views on the 10(j) and FLPMA issues, do not constitute the type of intense and 72
undue congressional influence that was present in Pillsbury.”
Finally, in ATX, Inc. v. U.S. Department of Transportation,73 the appeals court found that vocal,
hostile, and intense opposition of Members of Congress to the application of ATX, Inc. to operate
a new airline in Boston, Atlanta and Baltimore/Washington, did not fatally flaw the proceeding
67 16 U.S.C. 803 (j) (1996) (10(j) procedures).
68 966 F.2d 1552.
73 41 F.3d 1522 (D.C. Cir. 1994).
held by the Department of Transportation (DOT), and that DOT’s denial of the application on the
ground that ATX was unfit was reasonable.
The pertinent facts of the controversy are essentially as follows. Congressional opposition to ATX
arose even prior to the filing of its application, based largely on the perceived reputation of Frank
Lorenzo, its founder and majority owner, from his previous record of management of a major
airline. Twenty one Members of Congress wrote the Secretary of DOT urging him to deny ATX’s
application even before it had been filed, because of Lorenzo’s alleged unfitness to own and 74
operate an airline. Most of the signatures on the letter were members of the House committee
with jurisdiction over DOT, including the chair of the full committee, the chair of the Aviation
Subcommittee, and the chair of the Oversight Subcommittee. After ATX filed its application, 125
House and Senate members wrote the Secretary to declare their opposition to Lorenzo. Two 75
congressmen introduced legislation to prohibit Lorenzo from re-entering the airline industry.
The Secretary responded by acknowledging receipt of the letters, refusing to comment on the 76
merits, and putting the correspondence in a file for “contacts outside the record of the case.”
During the hearing on the application one of the congressional letter writers was allowed to
testify as to his opposition. Ultimately the Department rejected the application on the ground that
ATX “lacked both managerial competence to operate an airline and a disposition to comply with 77
In rejecting the undue influence challenge, the court acknowledged that the size, vocality, and
source of the congressional opposition toward the applicant in this quasi-judicial proceeding
required close judicial scrutiny to allay due process concerns with the alleged appearance of bias.
The court explained
... In the nonjudicial context, we have suggested that the way to cure the appearance of bias
may be to establish “a full scale administrative record which might dispel any doubts about
the true nature of [the agency’s] action.” Volpe, 459 F. 2d at 1249. With respect to the nexus
requirements, we have never questioned the authority of congressional representatives to
exert pressure, see id., and we have held that congressional actions not targeted directly at
the decision makers-such as contemporaneous hearings–do not invalidate an agency
decision. See Koniag, 580 F. 2d at 610. Under this framework, it is apparent that none of the 78
congressional pressure challenged by ATX is sufficient to invalidate the adjudication.
The court commented that the influence with which it was concerned is “when congressional
influence shapes the determination of the merits.” The court commented that the lengthy opinion
supporting the decision based on the administrative record “was clear and open to scrutiny and
[the] decision was fully supported by the record. There is no reason for us to infer that the letters
influenced his decision inasmuch as he did not reverse the ALJ’s recommendation nor was the 79
merits decision a close one on the record.” The testimony of the congressman at the hearing did
not create “a fatal appearance of bias as it was based almost entirely on information already
74 41 F.3d at 1524.
75 Id. at 1525.
77 Id. at 1526.
78 Id. at 1528.
79 Id. at 1528-29 (emphasis in original).
available to the ALJ, was void of threats and was not relied on in any of the decisions, which 80
were accompanied by extensive findings and reasons.” The court concluded:
In addition we find no evidence that the legislative activity actually affected the
outcome on the merits. See Kiewit, 714 F. 2d at 169; Volpe, 459 F. 2d at 1246. Neither the
Department’s final decision nor the ALJ’s two decisions mentioned the testimony of the
congressman, the congressional letters or the proposed legislation. All of the congressional
contacts were placed in the administrative record and ATX responded to them. . . . Finally,
the record manifests that both the Secretary and his acting Assistant Secretary were non-
committal in their reactions to the congressional contacts. Secretary Peña’s response to the
correspondence stressed that it was inappropriate for him to discuss the merits of the case
with the congressmen.
* * *
. . . Here, the nexus between the pressure exerted and the actual decision makers is so
tenuous and the evidence so adequately establishes ATX’s ineligibility for an airline
certificate that we conclude political influence did not enter the decision maker’s “calculus of 81
American Public Gas Association v. FPC82 was a case that arose from a FPC ratemaking
conducted pursuant to section 553 of the APA. The Commission first issued Opinion 770, in July
while the rehearing was pending, Representative John Moss, chairman of the Oversight
Subcommittee of the House Interstate and Foreign Commerce Committee, summoned the
Commissioners to appear at a hearing. Representative Moss, who with three other members of the
subcommittee had been parties to the proceeding before the FPC, subjected the Commissioners to
what the reviewing court described as an “intensive examination.” Decisions underlying Opinion
770 came under attack, notwithstanding the fact that the Commission had warned the
congressmen that those decisions were subject to reconsideration on rehearing. In the D.C.
The questioning was not confined to explication of “what the Opinion means and what
its implications are.” Chairman Moss went further, stating: “I am most committed as an
adversary. I find that I am outraged by Order 770. I find it very difficult to comprehend any
standard of just and reasonableness in the decision and I would not want the record to be
ambiguous on that point for one moment.”
80 Id. at 1529.
81 Id. at 1529, 1530. See also, Pierce Treatise, supra footnote 1, at 678-79, discussing, with approval, the appeals court
ruling in ATX.
82 567 F.2d 1016 (D.C. Cir. 1977), cert. denied, 435 U.S. 907 (1978).
These expressions, coupled with what the court characterized as the Subcommittee Counsel’s
adversarial interrogation about particular factors in the cost analysis of Opinion No. 770, formed 83
the basis of the claim of prejudice.
In reaching the question whether the Commission should be disqualified, the Court related the
facts of Pillsbury and described its holding at length. It then observed:
We doubt the utility of classifying the ratemaking undertaken in the present proceedings by
the Power Commission as entirely a judicial, or a legislative function, or a combination of
the two, for in any event the need for an impartial decision is obvious ... Congressional
intervention which occurs during the still-pending decisional process of an agency
endangers, and may undermine, the integrity of the ensuing decision, which Congress has
required be made by an impartial agency charged with responsibility for resolving
controversies within its jurisdiction. Congress as well as the courts has responsibility to 84
protect the decisional integrity of such an agency.
However, despite this rhetorical obeisance to the spirit of Pillsbury, the court did not disqualify
the agency, because the producers, though fully aware of all these facts, failed to ask the
Commission to disqualify itself. The court said that a party cannot, with knowledge of the alleged
taint, stay silent in hopes of a favorable decision, and then, when the decision is unfavorable, seek
its reversal on the ground of partiality: “A party, knowing of a ground for requesting
disqualification, cannot be permitted to wait and decide whether he likes subsequent treatment 85
that he receives.” But the court did not end its analysis there. It went on to ask whether the
interference was so serious as to require it sua sponte to void the result and set forth the factors it
took into account in concluding that it would not:
...the character and scope of the interference alleged; the fact that the parties who raise the
disqualification question seem not to have deemed what occurred to impair the impartiality
of the Commission itself independent of the result it reached; the fact that in one important
respect, and indeed the issue that was most vehemently examined by the Congressmen,
namely the correctness of the Commission’s decision respecting the income tax component,
the Commission left standing the disposition criticized at the Subcommittee hearing; the fact
that there is nothing to lead the court to find that actual influence affected Opinion No. 770-
A; and the fact that insofar as any actions of the Commissioners themselves are concerned no 86
appearance of partiality is evident.
In essence, then, the court’s decision turned on its finding of no actual impact of the congressional
intervention on the agency decision. Since the court earlier made clear it understood the differing 87
standards applied by the Pillsbury and D.C. Federation rulings, it would appear to have
considered the proceeding closer in type or form to D.C. Federation.
83 567 F.2d at 1068.
84 Id. at 1069.
86 Id. at 1070.
87 Compare the discussion of Pillsbury at 567 F.2d at 1068, with that of D.C. Federation at 567 F.2d at 1069, footnote
In Town of Orangetown v. Ruckelshaus,88 the Town sought to prevent the Environmental
Protection Agency (EPA) and the New York State Department of Environmental Conservation
(NYSDEC) from approving grants that would modernize an outmoded and overloaded sewage
treatment plant. It was argued that improper political pressure by state and local officials on EPA
caused EPA to reconsider and relax certain conditions on the grants that it had originally imposed
that were important to the Town. The Second Circuit held that in a non-adjudicatory proceeding
involving the disbursement of funds it had to be shown that “political pressure was intended and
did cause the agency’s action to be influenced by factors not relevant under the controlling 89
statute.” Here, the court stated, “The potential effect of proposed grant on area development is
one of the relevant factors for the EPA to consider . . . and elected officials should not be
precluded from bringing those factors to administrators’ attention. [citing Sierra Club v. Costle]
Orangetown ‘may not rest upon mere conclusory allegations’ of improper political influence as a 90
means of obtaining a trial.” Since the EPA decision whether to impose conditions on the grants
was not adjudicatory in nature but “an administrative one dealing with the disbursement of grant
funds, and required no adversary proceeding,” the appeals court concluded that he Town did not
have the status of a party and was not entitled to notice and opportunity to be heard.
“Consequently, such communications as the EPA had with the two public officials did not deprive 91
[the Town] of due process.”
Chemung County v. Dole92 involved a protest over the award of a contract by the Federal Aviation
Administration (FAA) to locate and build a flight service station. The contract was originally
awarded to Elmira, New York (in Chemung County) but was rescinded and then awarded to
Buffalo, New York. It was claimed that the change was improperly effected by the political
pressure brought on the FAA by two New York congressmen. Adopting the rule announced in its
Town of Orangetown ruling, the appeals court found no undue political influence:
The full extent of Representatives Kemp and Nowak’s efforts on behalf of the NFTA
was their having written letters to the FAA and their staffs and having met with the GAO
investigator. Appellees object to the Representatives’ letter to the FAA asking it to refrain
from formally entering into a contract with Chemung County while the GAO audit was
underway. The FAA had a right to suspend performance of a contract pending a GAO audit.
If the audit proved that NFTA had submitted the lowest bid (as it did so prove), the FAA had
the obligation to award the contract to NFTA. See 41 U.S.C. §253b (1982). Thus this letter
urged the FAA to take action directly authorized by the statutory scheme governing the
award of contracts.
Similarly, the Representatives’ letter to the FAA urging the agency to re-evaluate its
telecommunications cost estimates in light of the GAO’s findings was also proper. This letter
was also an attempt to persuade the FAA to abide by its statutory obligations, not ignore
them. As noted above, an award of a government contract to anyone except the bidder with
88 40 F.2d 185 (2d Cir. 1984).
89 740 F.2d at 188.
91 Id. at 188-89.
92 804 F.2d 216 (2d Cir. 1986).
the most advantageous proposal would violate the FAA’s statutory obligations, and the
Representative acted properly in bringing a possible violation of this duty to the agency’s 93
attention–even if it helped their home districts.
Finally, in DCP Farms et al v. Yeutter94 the 5th Circuit addressed the issue whether the denial of
farm subsidy payments had been tainted by the intercession of a powerful congressman prior to
commencement of a Department of Agriculture adjudication and thereby required the application
of Pillsbury’s “mere appearance of bias” standard. The adjudication was to be held to determine
whether an aggregation of 51 irrevocable agricultural trusts was entitled to large subsidies in the
face of a statute that limited farm subsidies to $50,000 per “person.” The effect of the trust
scheme would have been to allow DCP Farms $1.4 million in subsidies for the 1989 crop year.
Prior to the award decision, the Department’s Inspector General (IG) issued a report on abuses of
the farm subsidy program which highlighted DCP Farms as an example of “egregious violations 95
of the $50,000 per person limit.” The report received considerable publicity and reached the
attention of the jurisdictional subcommittee of the House Agriculture Committee. Staff of the
subcommittee chairman met with Department officials to discuss the issues raised by the IG
report in late 1989. DCP Farms was specifically discussed. In December 1989 the Chairman
wrote to the Secretary of Agriculture about the reports of abuses in the subsidy program and cited
DCP Farms as an example of the continued abuse of the statutory limit. He urged careful review
of schemes involving irrevocable trusts, particularly in light of the fact that he had had assurances
in the past from USDA officials that no legislative action was needed with respect to the
treatment of such trusts. The chairman received assurance from the Secretary that the DCP Farms
case was under administrative review and that the Department would “take a very aggressive 96
position in dealing with this case.” In June 1990 an administrative decision was issued finding
that DCP Farms had adopted schemes to evade the payment limitation provisions of the law and
was ineligible to receive any subsidy payments for the 1989, 1990 and 1991 crop years. DCP
Farms appealed and requested a hearing, which was set for December 12, 1990. Before the
hearing date DCP Farms learned of the meeting with the chairman’s staff and of the chairman’s
letter and successfully sued to enjoin the hearing on the ground, among others, that improper 97
congressional interference denied then due process.
The Fifth Circuit rejected the argument in an opinion that recognizes the need to permit political
oversight with respect to policy issues Congress has entrusted to agency decisionmakers. The
appeals court first rejected the applicability of Pillsbury because “the contact here occurred well
before any proceeding which could be considered judicial or quasi-judicial . . . There was no
hearing on the merits of DCP Farms’ application for farm subsidy payments because DCP Farms 98
abandoned the administrative process for this litigation.” The court saw the dispute between
DCP Farms and the Department as part of a larger policy debate and rejected any connection
93 804 F.2d at 222.
94 957 F.2d 1183 (5th Cir. 1992), cert. denied, 506U.S. 953 (1992).
95 957 F.2d at 1186.
96 957 F.2d at 1186.
97 Id. at 1186-87.
98 Id. at 1187.
between the preliminary processing of DCP Farms’ application and the appeals hearing that
would raise Pillsbury issues:
In short, the congressional communication here was not aimed at the decisionmaking
process of any quasi-judicial body. Congressman Huckaby was concerned about the
administration of a congressionally created program. The dispute between the USDA and
DCP Farms was part of a larger policy debate. Applying Pillsbury’s stringent “mere
appearance of bias” standard at this juncture of administrative process would erect no small
barrier to Congressional oversight. It reflects an insular view of these administrative
processes for which we find no warrant. We are unwilling to so dramatically restrict
communications between Congress and the executive agencies over policy issues. 99
Appearance of bias is not the standard.
The proper standard for this type of case, the court advised, is whether the communication
actually influenced the agency’s decision. This is appropriate, the court explained, because it
protects the proper and effective workings of the political process:
This focus on the intrusion of improper extraneous factors into the agency’s decision-
making process recognizes the political reality that “members of Congress are requested to,
and do in fact, intrude in varying degrees, in administrative proceedings.” S.E.C. v.
Wheeling-Pittsburgh Steel Corp., 648 F. 2d 118, 126 (3d Cir. 1981) (en banc). It would be
unrealistic to require that agencies turn a deaf ear to comments from members of Congress.
The agency’s duty, so long as it is not acting in its quasi-judicial capacity, is simply to “give
congressional comments only as much deference as they deserve on the merits.” Id.
We are cautious in reading extraneous factors too broadly, lest they impair agency
flexibility in dealing with Congress. In particular, an agency’s patient audience to a member
of Congress will not by itself constitute the injection of an extraneous factor. Nor would a
simple plea for more effective enforcement of a law be the injection of an improper factor. A
truly extraneous factor must take into account “considerations that Congress could not have
intended to make relevant,” D.C. Federation, 459 F. 2d at 1247.
Congressional “interference” and “political pressure” are loaded terms. We need not
attempt a portrait of all their sinister possibilities, even if we were able to do so. We can
make plain that the force of logic and ideas is not our concern. They carry their own force
and exert their own pressure. In this practical sense they are not extraneous. That a
congressman expresses the view that the law ought not sanction the use of fifty-one
irrevocable trusts to gain $1.4 million in subsidies is not impermissible political “pressure.”
It certainly injects no extraneous factor. We find no due process right in these preliminary
efforts to persuade the government to grant farm subsidies sufficient to exclude the political
tugs of the different branches of government, and we see nothing more here. We reject the
holding of the district court that DCP Farms could ignore the administrative procedure yet 100
available to it and turn to the consequence of this bypass of remedies.
99 Id. at 1187-88.
100 Id. at 1188.
In one of the first cases to be decided after D.C. Federation, a district court applied its principles
to find an impermissible congressional intervention in an agency rulemaking proceeding. In Texas 101
Medical Association v. Mathews, the court considered plaintiff’s contention that congressional
pressure should invalidate a decision of the Department of Health, Education and Welfare (HEW)
dividing Texas into nine Professional Standards Review Organizations (PSRO). HEW, after
consulting with the plaintiff and several other interested groups, first announced it would form
one statewide PSRO. But after a lengthy meeting with Senator Wallace Bennett, sponsor of the
PSRO legislation, and a senior staff member of the Senate Finance Committee, an HEW official
abruptly changed his mind and called for the division of Texas into nine PSRO’s.
The court noted that while it had no evidence as to what Senator Bennett or the staffer may have
said during the meeting, HEW was unable to adequately explain its sudden reversal of decision 102
with regard to the number of PSRO’s so soon after the meeting. Moreover, the court found
“proof of a pattern of undue influence by the same Congressional sources permeating HEW’s 103
entire administrative process relative to PSRO designation for Texas.” Applying D.C.
Federation’s principle that “agency action is invalid if based, even in part, on pressures emanating 104
from Congressional sources,” the court concluded that “the fact that an agency decision is a
‘little pregnant’ with pressures emanating from Congressional sources is enough to require
invalidation of the agency action. Especially should this be the law where, as here, the invasive 105
Congressional source has financial leverage on the involved agency.”
The fact that the agency action involved in Mathews was in the nature of a rulemaking would not
appear to be an inapt or inconsistent application of D.C. Federation. When Judge Bazelon noted
there that the courts would give absolute deference to legislative actions, it is clear from the
context that he was referring to such action by a legislative body, there the D.C. Council, a
political body directly accountable to its constituency in the electoral process. Where similar
legislative action (informal rulemaking) is taken by an administrative agency, the courts accord
great but not absolute deference to that process since it is not directly accountable to the
electorate. A finding of taint in an informal rulemaking is therefore not foreclosed by the D.C.
Federation rationale. Thus the court in Mathews held that the normal presumption in favor of the
agency’s decision was overcome by the evidence of the pervasive and invasive nature of the
congressional intrusions. However, while the ruling is not inconsistent with D.C. Federation, the
holdings in U.S. ex rel Parco v. Morris, and Sierra Club v. Costle, to be discussed next, appear to
reflect more accurately the nature and extent of the currently prevailing judicial deference to
congressional attempts to influence policymaking in the rulemaking process.
101 408 F. Supp. 303 (W.D. Tex 1976).
102 Id. at 312-13.
103 Id. at 310.
104 Id. at 306.
105 Id. at 313.
United States ex rel Parco v. Morris106 involved a challenge by deportable aliens to the rescission
by the Immigration and Naturalization Service of a longstanding operating instruction which
would have allowed them to extend the date of their voluntary departure. Plaintiff’s contended,
inter alia, that the change in policy was precipitated by the direct pressure applied by
Representative Peter Rodino who was then chairman of the subcommittee responsible for the
oversight of the administration of the immigration laws. It was conceded that Representative
Rodino’s request was the direct impetus for the change in policy. The court rejected the
contention based on its reading of the D.C. Federation. That holding, it said, was based upon a
“public and enforceable threat” by a congressman to withhold public funds for a particular
purpose unless an agency official acceded to the congressman’s wishes, and evidence that the 107
official’s decision was based in part on that pressure. The court went on to note the importance
of the nature of the proceeding in analysis of such cases.
However, Judge Bazelon’s analysis of this principle distinguishes sharply between
agency action which is “judicial” or “quasi-judicial” and agency action which is
“legislative.” The former concept related to agency adjudication of a particular, individual
case, or when it renders a decision on the record compiled in formal hearings; in such
instance the consideration of extraneous pressuring influences undermines the fairness of the
hearing accorded the adverse parties. Id. at 1246; accord, Pillsbury Co. v. FTC, 354 F. 2d th
952, 964 (5 Cir. 1966); Texas Medical Assoc v. Mathews, 408 F. Supp. 303 (W.D. Tex.
1976); Koniag, Inc. v. Kleppe, 405 F. Supp. 1360, 1371-73 (D.D.C. 1975) (Gesell, J.). On
the other hand, when the agency action is purely “legislative,” as in the informal rulemaking
involved here, the decision “cannot be invalidated merely because the ... action was
motivated by impermissible considerations” any more than can that of a legislature. D.C.
Federation, supra, 459 F. 2d at 1247; cf. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 129-313, 3 108
L.Ed. 162 (1810).
The court concluded that since plaintiffs did not claim that Representative Rodino had interfered 109
with the “quasi-judicial decision to deny them extended voluntary departure,” but rather were
attacking the motivation of the official in changing the agency’s policy, a “purely’ legislative 110
action, they had to meet a more stringent standard of proof. The court ruled they had failed to 111
The seminal case in this line is Sierra Club v. Costle,112 in which the appeals court found no taint
of the rulemaking proceeding there for failure to docket post-comment period meetings with the
Senate majority leader. The court concluded that it would not set aside a rulemaking simply on
the grounds that political pressure had been exerted in the process. It ruled that there has to be a
106 426 F. Supp. 976 (E.D. Pa 1977).
107 Id. at 982.
111 Id. The court ultimately declared the rescission invalid for failure to comply with the APA’s rulemaking and
publication requirements, 5 U.S.C. 552 (a)(1), 553 (2000).
112 657 F.2d 298 (D.C. Cir. 1981).
showing that “the content of the pressure on this [decisionmaker] is designed to force him to
decide upon factors not made relevant by Congress in the applicable statute” and also that the 113
determination made “must be affected by those extraneous considerations.” More particularly,
it was alleged that an “ex parte blitz” conducted after the comment period for an informal
rulemaking had caused the Environmental Protection Agency (EPA) to back away from its 114
support of a more stringent emission standard and was therefore unlawful and prejudicial. Post-
comment period communications included a number of oral conversations and briefings between
agency officials and private parties and other government officials, including the majority leader
of the United States Senate and the President of the United States.
The appeals court initially noted that the statute in question there did not require the docketing of
all post-comment period conversations and meetings and refused to apply a blanket rule requiring
such docketing. To the contrary, where the nature of the rulemaking is general policymaking, the
court expressed the view that “the concept of ex parte contacts is of more questionable utility.”
Indeed, the court deemed informal contacts vital to the effectiveness and legitimacy of our
Under our system of government, the very legitimacy of general policymaking
performed by unelected administrators depends in no small part upon the openness,
accessibility, and amenability of these officials to the needs and ideas of the public from
whom their ultimate authority derives and upon whom their commands must fall. As judges
we are insulated from these pressures because of the nature of the judicial process in which
we participate; but we must refrain from the easy temptation to look askance at all face-to-
face lobbying efforts, regardless of the forum in which they occur, merely because we see
them as inappropriate in the judicial context. Furthermore, the importance to effective
regulation of continuing contact with a regulated industry, other affected groups, and the
agency to win needed support for its program, reduce future enforcement requirements by
helping those regulated to anticipate and shape their plans for the future, and spur the 115
provision of information which the agency needs.
However, the court inferred from the statutory scheme that oral comments “of central relevance to
the rulemaking” should be placed in the record. Although the court conceded that this allows the
agency to decide in its own discretion which comments are relevant, the court did not find this to
be a persuasive enough consideration to require a more stringent rule.
EDF is understandably wary of a rule which permits the agency to decide for itself when oral
communications are of such central relevance that a docket entry for them is required. Yet
the statute itself vests EPA with discretion to decide whether “documents” are of central
relevance and therefore must be placed in the docket; surely EPA can be given no less
discretion in docketing oral communications concerning which the statute has no explicit
requirements whatsoever. Furthermore, this court has already recognized that the relative
significance of various communications to the outcome of the rule is a factor in determining
whether their disclosure is required. A judicially imposed blanket requirement that all post-
comment period oral communications be docketed would, on the other hand, contravene our
limited powers of review, would stifle desirable experimentation in the area by Congress and
the agencies, and is unnecessary for achieving the goal of an established, procedure-defined
113 657 F.2d at 409.
114 Id. at 386.
115 Id. at 400-01 (footnotes omitted).
docket, viz., to enable reviewing courts to fully evaluate the stated justification given by the 116
agency for its final rule.
The appeals court concluded that none of the non-docketed post-comment meetings, including
those with the Senate majority leader and the President, required docketing. It underlined its view
that informal rulemaking involving general policymaking is akin to the legislative process and
therefore the courts should be wary of attempting to probe too deeply. It stated that before an
administrative rulemaking could be overturned simply on the grounds of political pressure, it had
to be shown that “the content of the pressure on the [decisionmaker] is designed to force him to
decide upon factors not made relevant by Congress in the applicable statute” and also that the 117
determination made “must be affected by those extraneous considerations.” Although the
meetings were called at the behest of the majority leader “in order to express ‘strongly’ his 118
views” on the subject of the rulemaking, it found that the agency made no commitments to him
nor was there evidence that he used “extraneous” pressures to further his position. The court
characterized the Senator’s efforts, since they were exerted in a rulemaking proceeding, as within
the accepted boundaries of the political process.
... Americans rightly expect their elected representatives to voice their grievances and
preferences concerning the administration of our laws. We believe it entirely proper for
Congressional representatives vigorously to represent the interests of their constituents
before administrative agencies engaged in informal, general policy rulemaking, so long as
individual Congressmen do not frustrate the intent of Congress as a whole as expressed in
statute, nor undermine applicable rules of procedure. Where Congressmen keep their
comments focused on the substance of the proposed rule—and we have no substantial
evidence to cause us to believe Senator Byrd did not do so here—administrative agencies are
expected to balance Congressional pressure with the pressures emanating from all other
sources. To hold otherwise would deprive the agencies of legitimate sources of information 119
and call into question the validity of nearly every controversial rulemaking.
Similarly, with regard to a meeting involving the President, the court held that as long as there is
factual support in the record for the agency’s outcome, it does not matter that “but for” the
Presidential input it would have gone the other way.
Of course, it is always possible that undisclosed Presidential prodding may direct an
outcome that is factually based on the record, but different from the outcome that would have
obtained in the absence of Presidential involvement. In such a case, it would be true that the
political process did affect the outcome in a way the courts could not police. But we do not
believe that Congress intended that the courts convert informal rulemaking into a rarified
technocratic process, unaffected by political considerations or the presence of Presidential 120
116 Id. at 402-04 (footnotes omitted).
117 Id. at 409.
118 Id. at 409.
119 Id. at 409-10 (footnote omitted).
On rare occasions the claim is made that an agency investigation has been instigated by
congressional pressure or influence and the claim is made by the subject of such investigation that
it is tainted by the political intervention. On even rarer occasions agencies have sought to fend off
congressional oversight of closed or ongoing investigations because of concern that present and
future open cases could be compromised by turning over requested internal deliberative
documents. Agencies argue that such disclosures, even from closed investigations, might be
utilized by attorneys representing potential targets of investigations, or defendants in civil and
criminal actions, as evidence that the investigations or prosecutions are politically motivated and
not driven by legitimate investigatory concerns and are thereby tainted. This notion is said to be 121
supported by the appellate court ruling in SEC v. Wheeling-Pittsburgh Steel Corp. It is argued
that Wheeling-Pittsburgh precludes any agency contact with Members of Congress which would
give the appearance that an agency is acting at the behest of a Member or committee and that its
proper course is to avoid any appearance that its enforcement efforts are being pursued at
Congress’ bidding. The claim, however, does not appear to be an accurate portrayal of either the
Wheeling-Pittsburgh ruling or the case law that preceded or followed it. The Wheeling-Pittsburgh
court made it clear that a court will deem a request for the enforcement of an administrative
subpoena an abuse of the judicial process only if it was in fact shown that the subpoena was
issued because of congressional influence, the agency knew its process was being abused, that it
knowingly did nothing to prevent the abuse, and that it vigorously pursued the frivolous charges.
Under the standard articulated by the appeals court the motivation of the Members of Congress is
irrelevant; the focus is on the actual impact of the congressional intercession on the motivation of
the agency itself. Simply the appearance of impropriety is not enough to taint the proceeding.
SEC v. Wheeling-Pittsburgh Steel Corp. involved the initiation of an informal investigation of
Wheeling-Pittsburgh Steel Corporation after the receipt by the Securities and Exchange
Commission of a letter from a United States Senator suggesting that Wheeling had violated
Section 10(b) of the Securities Exchange Act of 1934, and rule 10b-5a promulgated thereunder.
During the period of the initial informal investigation, there was considerable contact between the
SEC staff attorney conducting the investigation and the Senator’s office and with competitors of
Wheeling who were in alleged complicity with the Senator. The Senator was also actively
pursuing the passage of legislation that would prevent Wheeling from obtaining Federal loan
guarantees if it was under investigation by a Federal agency. Thereafter, the SEC ordered a formal
investigation of the matter. Pursuant to the formal investigation order, the SEC issued a subpoena
duces tecum to Wheeling and its chief executive officer. He refused to answer certain questions
and the agency sought enforcement. Wheeling defended on the grounds, inter alia, that the
subpoena was issued in bad faith and for the purpose of harassment; and that the investigation
constituted an abuse of the SEC’s investigatory power by competitors of Wheeling who were
opposed to the grant of certain Federal loan guarantees to Wheeling.
The district court refused to enforce the subpoena. Although it specifically rejected the claim of
bad faith on the part of the agency, it concluded that, “under the totality of circumstances,”
121 482 F. Supp 555 (W.D. Pa. 1979), vacated and remanded, 648 F.2d 118 (3d Cir. 1981)(en banc)(Wheeling-
enforcement would be an abuse of the court’s process.122 The court reached this conclusion
because it believed that the SEC had allowed biased third parties to improperly influence the
investigation process, although it conceded that the agency did not adopt the biased motives of 123
the third parties.
A panel of the Third Circuit reversed, concluding that a court could not refuse to enforce
administrative subpoenas issued in good faith pursuit of a statutorily authorized purpose. The
court concluded that bias of third parties was irrelevant where the agency had proceeded in good
faith and that to invalidate agency action on the basis of an abuse of process theory independent
of the bad faith defense was improper.
The case was reargued before the Third Circuit en banc, which by a 6-4 vote remanded the case
to the district court in light of its ruling that even in the absence of bad faith on the part of an
agency, it would not enforce an administrative subpoena if it was issued because of congressional
influence and it was shown that the agency knew its process was being abused, that it knowingly 124
did nothing to prevent the abuse, and that it vigorously pursued the frivolous charges.
We do not doubt the usefulness to administrative agencies of information gained from
third parties. Nor do we doubt that frequently the motivations of informants are less than
altruistic. See United States v. Cortese, 614 F.2d 914 (3d Cir. 1980). But we cannot simply
avert our eyes from the realities of the political world: members of Congress are requested
to, and do in fact, intrude, in varying degrees, in administrative proceedings. One
commentator has said recently of the Internal Revenue Service:
[A]though the IRS ultimately must be accountable to Congress, whose members are
in turn accountable to the people, the IRS also has a constitutional duty to execute
the tax law faithfully by determining and administering it properly. The IRS must
give congressional comments only as much deference as they deserve on the merits,
for the agency has no duty to placate particular congressmen or committees. Given
the fine line between lawmaking and law enforcement, it is always difficult to say
when one shades into the other, but clearly there is an inevitable tension between
congressional oversight powers and the executive exercise of delegated powers to
interpret, articulate, and execute the tax laws.
Parnell, Congressional Interference in Agency Enforcement: The IRS Experience, 89 Yale
L.J. 1360, 1368 (1980) (footnotes omitted). The duty of the SEC, therefore is not to ignore
information given to it by congressmen, but to “give congressional comments only as much
deference as they deserve on the merits.” Id. An administrative agency that undertakes an
extensive investigation at the insistence of a powerful United States Senator “with no
reasonable expectation” of proving a violation and then seeks federal court enforcement of
its subpoena could be found to be using the judiciary for illicit purposes. We need not lend 125
the process of the federal courts to aid such behavior.
The appeals court made it clear that the bad faith defense need not be the sole basis for denial of
enforcement, and that agency acquiescence in an abuse of its own process may lead to a finding
of abuse of the court’s process. The court distinguished between the two, noting that “bad faith
122 482 F.Supp. 555, 567 (W.D. Pa. 1979).
123 482 F.Supp. at 565-66.
124 648 F.2d at 125.
125 Id. at 126 (footnotes omitted).
connotes a conscious decision by an agency to pursue a groundless allegation,” while “an agency
may be found to be abusing the court’s process if it vigorously pursued a charge because of the 126
influence of a powerful third party without consciously and objectively evaluating the charge.”
The court also emphasized the point that it was improper for the district court to have taken into
account the motivation of third parties in determining either bad faith or abuse of process. “This
court has previously made clear that the proper focus in a challenge to an administrative subpoena
is motivation of the agency itself, not that of third parties,” citing United States v. Cortese, 614 127
F.2d 914, 921 (3d Cir. 1980). The requirement of a finding of “institutional” bad faith rather
than that of an individual agent, or the refusal to allow attributing the motives of third parties to 128
an agency, is well established.
The court concluded:
At bottom, this case raises the question whether, based on objective factors, the SEC’s
decision to investigate reflected its independent determination, or whether that decision was
the product of external influences. The reality of prosecutorial experience, that most
investigations originate on the basis of tips, suggestions, or importunings of third parties,
including commercial competitors, need hardly be noted. That the SEC commenced these
proceedings as a result of the importunings of Senator Weicker or CF&I, even with malice
on their part, is not a sufficient basis to deny enforcement of the subpoenas. See Cortese, 614
F.2d at 921. But beginning an informal investigation by collecting facts at the request of a
third party, even one harboring ulterior motives is much different from entering an order
directing a private formal investigation pursuant to 17 C.F.R. § 202.5 (1980), without an
objective determination by the Commission and only because of political pressure. The
respondents are not free from an informal investigation instigated by anyone, in or out of
government. But they are entitled to a decision by the SEC itself, free from third-party
political pressure, that a “likelihood” of a violation exists and that a private investigation
should be ordered. See 17 C.F.R. § 205.2(a). The SEC order must be supported by an
independent agency determination, not one dictated or pressured by external forces. If an
allegation of improper influence and abdication of the agency’s objective responsibilities is
made, and supported by sufficient evidence to make it facially credible, respondents are
entitled to examine the circumstances surrounding the SEC’s private investigation order. The
court should be guided by twin beacons: the court’s process is focus of the judicial inquiry 129
and the respondent may challenge the summons on any appropriate ground.
In sum, then, it would appear that the Third Circuit, while accepting the possibility of finding that
political pressure can taint an investigative proceeding under a variety of theories, has imposed on
a litigant the burden of establishing the factual predicate to support such a determination which
may prove quite formidable. It certainly appears no less an obstacle than the showing of actual 130
effect required in other non-adjudicatory situations.
126 648 F.2d at 125 n. 9.
127 648 F.2d at 127.
128 United States v. LaSalle National Bank, 437 U.S. 298, 316 (1978); United States v. Target Advertising, Inc., 257
F.3d 348, 355 (4th Cir. 2001); Pickel v. United State, 746 F.2d 176, 184 (3d Cir. 1984); EEOC v. Michael Construction th
Co., 706 F.2d 244, 251 n. 7 (8 Cir. 1983); NLRB v. Interstate Dress Carriers, Inc., 610 F.2d 99, 112 (3d Cir. 1979).
129 648 F.2d at 130.
130 See e.g., American Public Gas Association v. FPC, 567 F.2d 1016, 1070, (D.C. Cir. 1977), cert. denied 435 U.S.
907 (1978) (ratemaking); State of California v. FERC, 966 F.2d 1541 (9th Cir. 1992) (lengthy series of correspondence
between FERC and Chairman of Energy and Commerce Committee which resulted in agency (1) reopening a fact-
finding proceeding and (2) reversing a longstanding interpretation of its authority, held not undue congressional
On the other hand, Wheeling-Pittsburgh represents something of a liberalization in an area where
court review of agency requests for enforcement of administrative subpoenas has traditionally 131
been severely circumscribed and narrow. Indeed, the development has been severely 132
criticized, and some courts appear to have rejected Wheeling-Pittsburgh and are adhering to the 133
traditional standard of high deference to agency subpoena issuance decisions. In fact, it may be
that the somewhat more expansive review of such situations afforded by Wheeling-Pittsburgh 134
may be limited to cases arising in the Third Circuit. In any event, we are aware of no court that
has utilized the Wheeling-Pittsburgh standard to refuse to enforce an administrative subpoena
because of alleged undue congressional influence. Indeed, the Wheeling-Pittsburgh court itself
did not find that the SEC had been guilty of an abuse judicial process; it remanded the case to the
district court to make findings consonant with its opinion.
Several courts have subsequently applied the Wheeling-Pittsburgh rationale in cases involving the
issuance of subpoenas by the Department of Energy to resellers of petroleum products who had
refused to voluntarily supply documents in the course of a valid agency audit. In each case the
defendant company claimed, inter alia, that the Chairman of the Oversight and Investigations
Subcommittee of the House Energy and Commerce Committee had exerted improper influence
on the agency official making the decision to issue the subpoena. In each instance the courts 135
rejected the claims. In United States v. Armada Petroleum Corp., for example, the court
acknowledged Wheeling-Pittsburgh’s holding that an agency may not order an investigation
“because of political pressure to do so,” but found that where, as in the case before it, “the
Congressional involvement is directed not at the agency’s decision on the merits but at
accelerating the disposition and enforcement of the pertinent regulations, it has been held that
such legislative conduct does not affect the fairness of the agency’s proceedings and does not 136
warrant setting aside its order.”
influence because the agency made its decisions based upon “its own independent and detailed analysis of the
131 See e.g., United States v. LaSalle National Bank, 437 U.S. 298, 316-17 (1978); United States v. Morton Salt Co.,
338 U.S. 632, 652 (1950); City of Chicago v. United States, 396 U.S. 162, 165 (1969) (agency decisions to conduct
investigations are “committed entirely to agency discretion); Union Mechling Corp. v. United States, 566 F.2d 722, th
724-25 (D.C. Cir. 1977), Dresser Industries Inc. v. United States, 596 F.2d 1231 1235 n. 1(5 Cir. 1979), cert. denied,
444 U.S. 1044 (1980).
132 See Comment, SEC v. Wheeling-Pittsburgh Steel Corp.: Bad Faith and Abuse-Of-Process Defense to
Administrative Subpoenas, 82 Colum.L.Rev. 811 (1982).
133 See e.g., United States v. Aero Mayflower Transit Co., 831 F.2d 1142, 1146-47 (D.C. Cir. 1987) (a court only has
discretion to conduct an evidentiary hearing in a subpoena enforcement case in the unlikely situation where the party
opposing the subpoena has presented affidavit evidence that the agency “is acting without authority or where its
purpose in harassment of citizens.”); United States v. Teeven, 745 F.Supp. 220, 224-227 (D. Del. 1990) (discussing
Aero and concluding that Wheeling-Pittsburgh is still controlling in Third Circuit).
134 See, United States v. Westinghouse Electric Corp., 788 F.2d 164, 166-67 (3d Cir. 1986)(citing Wheeling-Pittsburgh
approvingly); EEOC v. University of Pennsylvania, 850 F.2d 969, 980 (3d Cir. 1988) (expressly recognized continued
vitality of Wheeling-Pittsburgh on abuse of process issue), aff’d 493 U.S. 182 (1990).
135 United States v. FRB Petroleum, Inc., 703 F.2d 528, 532 (Em. Appeals 1983); United States v. Phoenix
Petroleum,571 F. Supp. 16 20 (S.D. Tex 1982); United States v. Armada Petroleum Corp., 562 F.Supp. 43, 50-51 (S.D.
Tex. 1982). See also, United States v. Merit Petroleum, Inc., 731 F.2d 901, 904 (Em. Appeals 1984).
136 See also, United States v. Hayes, 408 F.2d 932 (7th Cir.), cert. denied, 396 U.S. 835 (1969) (the fact that a House
Subcommittee had expressed an interest in an Internal Revenue Service investigation did not show that the
In the most recent decision in which the target of an administrative investigation invoked th
Wheeling-Pittsburgh principles, the 4 Circuit, in United States v. American Target Advertising, 137
Inc., rejected the claim of the defendant that the issuance of an investigative subpoena was a
tool of harassment and intimidation exercised by the agency (the Postal Service) at the behest of a
Senator who, the court conceded, “has demonstrated a fair degree of hostility toward” the
defendant. But the appeals court reiterated that that was not enough. The appellant “must show
that the party actually responsible for initiating the investigation, i.e., the Postal Service, has done 138
so in bad faith.” The court found no evidence of bad faith and rejected American Target’s
request for discovery before the district court, noting “that such discovery is prohibited in these
types of summary enforcement proceedings absent ‘extraordinary circumstances.’” The appeals
court advised that in order to obtain discovery, the target must distinguish himself “from the class 139th
of the ordinary respondent, by citing special circumstances.” The 4 Circuit concluded that it
had not done so there, stating: “when presented with evidence of unlawful conduct, the
Government is not bound to investigate only those potential wrongdoers who support its policies.
Because American Target failed to distinguish itself from the ordinary disgruntled respondent, it 140
is not entitled to discovery regarding the genesis of the Postal Service’s inquiry.”
In sum, it would appear that the assertions with respect to the Wheeling-Pittsburgh precedent is
unduly restrictive. That case does not establish an “appearance of partiality” standard with respect
to congressional contacts. A high degree of proof is needed to demonstrate that the agency’s
motivation in continuing an investigation is solely in acquiescence to congressional influence and
without any regard to the adequacy of the grounds of the allegations.
A review of the undue influence case law since 1966 indicates that the courts, in balancing
Congress’s performance of its constitutional and statutory obligations to oversee the actions of
agency officials against the rights of parties before agencies, have increasingly looked to the role
of the political process in all types of agency decisionmakings and have attempted to give weight
to that process on a case-by case basis. The result has been a strong predilection of the courts to
accept congressional prerogatives. Thus where informal rulemaking or other forms of informal
decisionmaking are involved, the courts will look to the nature and impact of the political
pressure on the agency decisionmaker and will intervene only where that pressure has had the
investigation was conducted for an improper purpose).
137 257 F.3d 348 (4th Cir. 2001).
138 257 F.3d at 355.
140 Id. at 356. For an instance in which a court found that a party alleging agency undue political influence on an agency
had made a sufficiently “strong showing” of improper influence to be entitled to extraordinary discovery and
examination of agency personnel, see Sokaogan Chippewa Community v. Babbitt, 961 F.Supp. 1276, 1280-86 (W.D.
Wisc. 1997). The court warned that plaintiffs still need “to show that the pressure was intended to and did cause the
Department of Interior’s actions to be influenced by factors not relevant under the controlling statute.” 961 F.Supp. at
1286. After the court’s ruling all proceedings in the matter were suspended during the pendency of an independent
counsel investigation. At the conclusion of that investigation the government and the tribes settled and the undue th
influence issue was not pursued. See Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 944-45 (7 Cir. 2000).
actual effect of forcing the consideration of factors Congress did not intend to make relevant.
Where agency adjudication is involved a stricter standard is applied and the finding of an
appearance of impropriety can be sufficient to taint the proceeding. But even here the courts have
required that the pressure or influence be directed at the ultimate decisionmaker with respect to
the merits of the proceeding and that it does not involve legitimate oversight and investigative
functions before they will intervene. And where congressional intrusion in an agency’s
investigative process is involved the courts will intervene only if it is in fact shown that an
inquiry was instituted and subpoenas issued because of congressional influence, the agency knew
its process was being abused, that it knowingly did nothing to prevent abuse, and that it
rigorously pursued frivolous charges.
A 1989 legal commentary has severely criticized this decisional trend, arguing that the case law in
this area means that:
... Members of Congress can intervene in ongoing agency proceedings by contacting either
the close personal aides or the immediate superiors of the ultimate decisionmaker, convey
their judgments on how those questions should be decided and avoid judicial review of their
actions while knowing full well that their message will find its way to the relevant agency
official. In short, the actual influence standard of D.C. Federation is manipulable at the
whim of Congress and, in the words of Judge Gesell, those seeking to invoke the Pillsbury
doctrine must now “shoulder the virtually impossible burden of proving whether and in what 141
way ... the agency was actually influenced” by congressional intervention.
As a remedy, the author calls for the judicial application of Pillsbury’s “appearance of
impartiality” standard to any instance of informal congressional intercession, regardless of the
nature of the proceeding in question, “as a legitimate and useful tool for controlling congressional
abuse of the informal oversight mechanisms which are likely to see wider use in the post-Chadha 142
era.” The comment suggests that the use of such informal oversight mechanisms is an unlawful 143
circumvention of the Supreme Court’s decision in INS v. Chadha, which invalidated the use of
legislative veto devices, because it allowed Congress to evade the presentment and bicameralism 144
requirements of the legislative process mandated by the Constitution. “If Congress determines
through the use of oversight mechanisms that an agency has misinterpreted a statute, the
appropriate response is to take the formal step of amending the law, not to use informal means to 145
alter the agency’s interpretation.”
The comment would appear to misconceive the nature and scope of Congress’ constitutional
oversight and investigatory authority and the judicial recognition and approbation of informal
congressional techniques to influence agency actions as both directly flowing from that authority
and as being an integral part of the checks and balances mechanism underlying our scheme of
separated but shared powers. Thus it is well settled that Congress in legislating pursuant to the
powers granted it under Article I, section 8 of the Constitution, has the authority, under the
Necessary and Proper Clause, Art. I, sec. 8, cl. 18, to create the bureaucratic infrastructure of the
141 Comment, Judicial Restriction on Improper Congressional Influence in Administrative Influence in Administrative
Decision-making: A Defense of the Pillsbury Doctine, 6 J. of Law & Politics 135, 154 (1989).
142 Id., 6 J. of Law and Politics at 1360-37.
143 462 U.S. 919 (1983).
144 Id. at 147.
145 Id. at 159.
Executive branch and to determine the nature, scope, and power of the duties so created.146
Moreover, as a general matter, the Supreme Court has spoken very broadly of the legislative
power over offices. Where Congress deals with the structure of an office – its creation, location,
abolition, powers, duties, tenure, compensation and other such incidents – its power is virtually 147
plenary. Only where the object of the exercise of the power is clearly seen in the particular
situation as an attempt to effect an unconstitutional purpose, e.g., congressional appointment or 148
removal of an officer, have the courts felt constrained to intervene.
Equally well settled is the breadth of Congress’ authority to effectively monitor the work of its
creations. Supreme Court rulings have firmly established that the oversight and investigatory
power of Congress is so essential to the legislative function as to be implied from the general 149
vesting of legislative power in Congress. In the absence of a countervailing constitutional
privilege or a self-imposed statutory restriction upon its authority, the Congress (and its
committees) has plenary power to compel information needed to discharge its legislative function
from executive agencies, private persons, and organizations, and within certain constraints, the 150
information so obtained may be made public.
Moreover, Congress’ power to influence executive and other governmental conduct is not
confined to its utilization of its lawmaking authority. The courts have long recognized
congressional authority to investigate, and to express its opinion, in an attempt to influence the 151
manner in which the laws are executed. In upholding the exercises of similar kinds of authority, 152
courts have acknowledged that the issuance of a subpoena to the executive, the mandate of a 153
report and wait provision, and the expression of disapprobation or the focusing of public 154
attention on executive action, do not themselves constitute improper control of executive 155
The Supreme Court has also recognized Congress’ right to investigate the Government’s conduct 156
of civil and criminal litigation. In the leading case of McGrain v. Daugherty, the Senate had
appointed a select committee to investigate the alleged failure of the Justice Department to
prosecute and defend certain civil and criminal actions to which the government was a party. The
Supreme Court upheld the action of the Senate in citing the brother of the Attorney General for
contempt of Congress for failure to comply with a subpoena issued by the select committee. The
Court determined that the subject of the investigation–”whether the Attorney General and his
146 Buckley v. Valeo, 424 U.S. 1 (1976).
147 See, e.g., Crenshaw v. United States, 134 U.S. 99, 105-06 (1890); Morrison v. Olson, 487 U.S. 654 (1988);
Mistretta v. United States, 488 U.S. 361 (1989).
148 See Buckley v. Valeo, supra; Bowsher v. Synar, 478 U.S. 714 (1986).
149 Mc Grain v. Daugherty, 273 U.S. 135, 174-75 (1927); Watkins v. United States, 354 U.S. 178, 187 (1958); Eastland
v. United States Servicemen’s Fund, 421 U.S. 491, 504-05 (1975).
150 Id. See also Gravel v. United States, 408 U.S. 606, 625 (1973); Doe v. McMillan, 412 U.S. 306 (1973).
151 McGrain v. Daugherty, supra; Watkins v. United States, supra.
152 United States v. Nixon, 418 U.S. 683 (1974).
153 INS v. Chadha, 462 U.S. 919, 935 n. 9, citing Sibbach v. Wilson & Co., 312 U.S. 1 (1941).
154 Bowsher v. Merck & Co., 460 U.S. 824, 833 (1983); City of Alexandria v. United States, 737 F.2d 1022 (Fed. Cir.
155 See also, Ameron v. U.S. Corps of Engineers, 809 F.2d 979, 992-993, 995 (3d Cir. 1988), cert dismissed 109 S. Ct.
156 273 U.S. 135 (1927).
assistants were performing or neglecting their duties in respect of the institution and prosecution
of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers”–was
clearly one on which legislation could be enacted and was within the jurisdiction of the Senate to 157
Additionally, the courts have explicitly held that agencies may not deny Congress access to
agency documents, even in situations where the inquiry may result in the exposure of criminal
corruption or maladministration by agency officials. As the Supreme Court has noted, “But surely
a congressional committee which is engaged in a legitimate legislative investigation need not
grind to a halt whenever responses to its inquiries might potentially be harmful to a witness in 158
some distinct proceeding . . . or when crime or wrongdoing is exposed.”
Thus, the courts have recognized the potentially prejudicial effect congressional hearings can
have on pending cases. While not questioning the prerogatives of Congress with respect to
oversight and investigation, the cases pose a choice for the Congress: congressionally generated
publicity may result in harming the prosecutorial effort of the Executive; but access to
information under secure conditions can fulfill the congressional power of investigation and at the
same time need not be inconsistent with the authority of the Executive to pursue its case.
Nonetheless, it remains a choice that is solely within Congress’ discretion to make, irrespective of
The foregoing review of the case law concerning Congress’ oversight and investigatory authority
appears to abundantly demonstrate that the decisional law development in the area of undue
influence is hardly aberrational but is, rather, a subset, and therefore a mirror, of the broad
oversight power the courts have accorded Congress over Executive agencies generally. In all such
cases the courts balance Congress’ constitutional oversight and investigatory prerogatives against
the interests of the agencies or private parties involved. In a non-adjudicatory setting involving
general policymaking, it is hardly surprising that the congressional prerogatives are likely to be
weighed and found persuasive unless the subject matter implicates countervailing constitutional
privileges of the President or the pressure brought to bear results in a decision that ignores
applicable statutory considerations or procedures. Thus the Sierra Club court noted that a
rulemaking would be overturned because of congressional pressure only if two conditions were
met: first, if the content of the pressure was designed to force the decisionmaker to decide on the
basis of factors not made relevant by Congress in the applicable statute and, second, if the 159
decision was in fact affected by those extraneous considerations. The court explained its
rationale as follows: “We believe it entirely proper for Congressional representatives vigorously
to represent the interests of their constituents before administrative agencies engaged in informal,
general policy rulemaking, so long as individual Congressmen do not frustrate the intent of 160
Congress as a whole as expressed in statue, nor undermine applicable rules of procedure.”
On the other hand, underlying the greater judicial sensitivity to public or secret (ex parte)
exertions of political pressure on an agency adjudication is the premise that such adjudications,
whether formal or informal, involve individual rights rather than issues of general policy, and thus
implicate constitutional due process values. Although due process does not generally require a
157 273 U.S. at 170, 177-78.
158 Hutcheson v. United States, 369 U.S. 599, 617 (1962).
159 Sierra Club v. Costle, supra, 657 F.2d at 409.
full-scale judicial trial, informal adjudications must nonetheless conform to the “fundamental 161
notions of fairness implicit in due process.” Both public and secret congressional attempts to
influence agency decisionmaking may undermine the due process rights of parties to informal
adjudications in several respects. Where the contacts are unrevealed, parties to the adjudication
are deprived of notice and an opportunity to respond with relevant information, a violation of 162
fundamental canons of fairness. Moreover, whether overt or concealed, political pressure
compromises the appearance of impartiality and objectivity of the decisionmaker, qualities 163
traditionally regarded as essential to due process. Thus the decisions in this area reflect a
common purpose of the courts “to preserve the integrity of the judicial aspect of the 164
But even in the adjudicatory setting the judicial deference to congressional prerogatives is
apparent. Taint will not be found unless the pressure is directly on the decisionmaker, concerns 165166167
the merits of the case, and is not minimal. The Gulf Oil MEUA, California v. FERC and 168
ATX litigations serve to illustrate the current judicial practice. All four cases involved
proceedings adjudicatory in nature but in none was taint found. In Gulf Oil the court found the
following factors determinative: the subcommittee interrogations were not concerned with the
merits of the agency’s decision but with its compliance procedures; there was no attempt to
influence a factual determination of the agency; the Commission in fact resisted the political
pressure as evidenced by its resolution of key issues in a manner identical to the way it had
decided them before the committee hearings; and the fact that the nature of the agency’s decision
was entirely legal. In the MEUA case, the Second Circuit found the ex parte communications
involved there to be de minimis. The challenged communications were not secret and were in fact
promptly placed in the public record; they contained no new factual information; and no
opportunity for rebuttal was either required or necessary. In California v. FERC the court
emphasized that the congressional intercessions were meant to correct procedural problems and to
question whether the agency was applying the proper legal standard and that the agency
determination made in each instance was based on its own independent, on-the-record analysis of
the congressional objections and was accompanied by a reasoned explanation. The court viewed
the matter as properly involving the congressional interest in policymaking and policy
application. Finally, the intense congressional pressure in ATX to deny an application to operate a
new airline was found not to taint the proceeding because close examination showed that it did
not affect the outcome of proceeding. The court pointed to the absence of threats, the insulation of
the immediate decisionmaker, and that the findings of material facts were very well supported by
the evidentiary record, including the extensive evidence of previous wrongdoing and
161 Home Box Office, Inc. v. FCC, 567 F.2d 9, 56 (D.C. Cir 1977), cert denied, 434 U.S. 829 (1978). (Ex parte contacts
by private interests and Members of Congress tainted a rulemaking involving conflicting claims to private rights).
162 Morgan v. U.S., 301 U.S. 11, 18 (1938) (“The right to a hearing embraces not only the right to present evidence but
also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit
arguments implies that opportunity; otherwise the right may be a barren one.”); Sangamon Valley Television Corp. v.
U.S., 269 F. 2d 221, 224 (D.C. Cir. 1959); U.S. Lines v. FMC, 584 F.2d 163, 169-70 (D.C. Cir. 1983).
163 Pillsbury, Co. v. FTC, 354 F.2d 952, 964 (5th Cir. 1966); Peter Kiewet Sons’ Co. v. U.S. Army Corps of Engineers,
714 F.2d 163, 169-70 (D.C. Cir. 1983).
164 Pillsbury Co. v. FTC, supra, 354 F.2d at 964.
165 Supra notes 56-60 and accompanying text.
166 Supra notes 64-65 and accompanying text.
167 Supra notes 66-72 and accompanying text.
168 Supra notes 73-81 and accompanying text.
maladministration by the applicant. In short, the courts are looking to see if the agency itself
protected the integrity of its own decisional process.
Gulf Oil, MEUA, FERC and ATX then may be said to be reflective of the marked preference of
the courts for upholding agency action wherever it is on the decisionmaking continuum. It would
appear that unless a decisionmaker in an adjudication is directly contacted with respect to the
merits of the case before him, or the situation involves particularly outrageous and/or pervasive
congressional interference in a rulemaking, informal decisionmaking or investigative context
which actually influences the decisionmaker, it is unlikely that a court will void a challenged
agency action. Indeed, since the Pillsbury decision in 1966, only one challenge based on
adjudicatory interference has been successful (Koniag v. Andrus) and that turned on the fact of a
direct communication by letter to the agency decisionmaker by the chairman of a congressional
committee which pointedly addressed the merits of the pending proceeding. Similarly, only one
rulemaking has been found tainted during that same period (Texas Medical Association v.
Mathews). And in all instances in which a proceeding has been found tainted, the judicial remedy
has been a remand to the agency for reconsideration of the decision in question.
In the final analysis, judicial deference in this area appears to reflect the pragmatic conclusion
that maintenance of Congress’ ability to communicate as freely as possible with the
administrative bureaucracy is essential to sustaining the public acceptability of the modern
administrative state. As one commentator has explained:
The legitimacy and acceptability of the administrative process depends on the perception
of the public that the legislature has some sort of ultimate control over the agencies. It is
through the Congress that the administrative system is accountable to the public. If members
of Congress “be corrupt, others may be chosen.” The public may not, however, directly
remove agency officials. The public looks to its power to elect representatives as its input
into the administrative process. The public will perceive restrictions on Congress’s power to
influence agency action as reducing the accountability of agency officials. This will
negatively affect the legitimacy of agency actions, as well as seriously erode notion of
popular sovereignty. Even administrators, who may not perceive legislative intrusions into
the administrative process as being particularly desirable, recognize congressional
supervision as a necessary function in a democratic society. The nature of the government 169
requires that the legislature maintain a careful supervision over agency action.
This part of the report discusses the ethical considerations and issues which may arise when a
congressional office or a Member of Congress contacts an administrative or regulatory agency or
otherwise intervenes in an administrative matter on behalf of a private constituent or other private
entity with interests affecting the Member’s constituency.
Any discussion of the “ethics” of a Member of Congress intervening in an administrative matter
on behalf of a constituent or other individual must be set within the context of the traditional role
of a Member of Congress, in which the Member is often seen as his or her constituents’ most
immediate elected “representative” to the entire United States Government. Contacting an agency,
169 Comment, Judicial Limitation of Congressional Influence on Administrative Agencies, 73 Northwestern L. Rev.
931, 941 (1979)(footnotes omitted).
department or Government bureau, and representing or intervening in administrative matters on
behalf of constituents have often been characterized as among the official responsibilities of
Members of Congress on behalf of those whom they represent, and such “representational”
duties, above and beyond purely “legislative” acts, have evolved as a traditional and longstanding
discretionary practice of Members of Congress.
In discussing the theoretical, as well as the ethical context for these representational activities, the
late Senator Paul Douglas of Illinois, in his valued work Ethics in Government, noted that
congressional intervention in the administrative and executive process is grounded firmly in our
concepts of checks and balances in a representative democracy, as well as our natural and
historical distrust, as a nation, of unelected governments:
Much of the mail and time of members of Congress is devoted to the requests of
constituents about matters concerning which they, the constituents, are dealing with the
administrative agencies of the government. In countries dominated by civil servants, such as
imperial Germany and to a lesser degree Great Britain, any intervention by legislators in such
administrative matters is severely discouraged. The bureaucracy in these countries contends
that the function of the legislators is to make the laws and that of the public administrators is
to administer them, and that consequently neither should interfere with the work of the other.
... These men, consciously or unconsciously, regard the civil service officials as devoted
public servants ... [in contrast to] the “impure” legislator .... [Such attitude] is fostered by
those who would create an “administrative state” in which the real directing power would be
exercised by self-selecting and self-perpetuating group of officials rather than by elected
representatives of the people. At its roots there is a concealed but deep distrust of democratic
government and democratic processes.
* * *
The truth is that legislation and administration should not be kept in air-tight and
separate compartments. In order that each group may perform its own job adequately, it
should within limits interest itself in the work of the other. There is then, a sound ethical
basis for legislators to represent the interests of constituents and other citizens in their
dealings with administrative officials and bodies.
Besides this ethical justification, there is a practical necessity for it. Out of a deep
instinctive wisdom, the American people have never been willing to confide their individual
or collective destinies to civil servants over whom they have little control. They distrust and
dislike a self-perpetuating bureaucracy, because they believe that ultimately it will not reflect
the best interests of the people. They therefore turn to their elected representatives to protect 170
their legitimate interests in their relationship with the public administrators.
The importance of the case-work or service function of representing constituents’ individual
interests before the agencies and officials of the federal executive bureaucracy was recognized
and discussed in an important treatise on congressional ethics authored by the Association of the
Bar of the City of New York, Congress and the Public Trust:
The casework or service function has become a major responsibility of Members of
Congress today. In the performance of this function, a Senator or Representative negotiates
170 Douglas, Paul H., Ethics in Government, at 85-88 (Cambridge 1952); see also discussion in Senate Committee Print,
“Ethical Standards in Government,” Report of a Subcommittee of the Committee on Labor and Public Welfare, 82d st
Cong., 1 Sess. 28-30 (1951).
in his constituent’s behalf a whole range of problems and difficulties that arise out of their
relations with the Federal government. This can involve the Member in helping to obtain a
federal contract for his district, interceding on behalf of a selective service registrant,
inquiring why a constituent’s Social Security check has not been delivered, setting up a
meeting with a Federal official, and arranging for a tour of the White House for an important 171
The practice of intervening in administrative and executive matters on behalf of constituents and
other individuals has, therefore, not been perceived historically in the United States as an
inherently wrongful act, necessarily involving undue or improper “political” influence over
executive or administrative matters, but rather has customarily been seen as a discretionary, and
arguably, an expected function of one’s representative in Congress. The House Committee on
Standards of Official Conduct, for example, advises Members and employees of the House that:
“An important aspect of a House Member’s representative function is to act as a ‘go-between’ or 172
conduit between his constituents and administrative agencies of the Federal Government.”
Similarly, the Senate Select Committee on Ethics has stated that: “It is a necessary function of a
Senator’s office to intervene with officials of the executive branch and independent regulatory 173
agencies on behalf of individuals when the facts warrant ....”
There are, of course, opportunities and potential for abuse in this area, and there are, therefore,
statutory as well as ethical restraints and considerations in relation to such activities, as there are
for most official activities and duties of Members of Congress and their staff. The most prominent
and clear restriction is upon the receipt of compensation or anything of value in return for, or
because of, such representational activity.
The Supreme Court of the United States in 1905 had occasion to rule on the propriety of a United
States Senator intervening in an executive matter, and noted that such activity, although not
required of a Member, is within the Member’s discretion, may be done “without impropriety,”
and is not violative of statutory restraints as long as no compensation is accepted for the activity.
The Court in Burton v. United States, in ruling that a statute barring a Senator from receiving
compensation for representing an individual before the agencies of the Government did not
unduly interfere with a Member’s constitutional duties to represent and present his views before
those agencies, explained:
A statute like the one before us ... can be executed without in any degree ... interfering with
the discharge of the legitimate duties of a Senator. The proper discharge of those duties does
not require a Senator to appear before an executive Department in order to enforce his
particular views, or the views of others, in respect of matters committed to that Department
for determination. He may often do so without impropriety, and, as far as existing law is
concerned, may do so whenever he chooses, provided he neither agrees to receive nor 174
receives compensation for such services.
171 Association of the Bar of the City of New York, Special Committee on Congressional Ethics, Congress and the
Public Trust, at 10 (New York 1970).
172 Ethics Manual for Members, Officers, and Employees of the U.S. House of Representatives, Committee on
Standards of Official Conduct, 102nd Cong., 2d Sess. 241 (1993).
173 S. Rpt. No. 102-223, 102d Cong., 1st Sess., Investigation of Senator Alan Cranston, at 14 (1991).
174 202 U.S. 344, 367 (1905).
The initial ethical considerations thus concern the receipt of things of value by a Member or staff
from persons or organizations on whose behalf interventions before or inquiries to federal
agencies were made. Prudence and caution must, of course, be exercised by Members of
Congress and staff in accepting gifts at any time from private individuals or groups, and even
more so in accepting any gifts, offers of entertainment, or other things of value which could be
interpreted as a reward, payment or additional compensation for doing one’s official duties in
assisting constituents or others in matters before federal agencies. Since campaign contributions
are a more common, and arguably a more acceptable and necessary monetary transfer from
private individuals to Members of Congress than are outright gifts, some of the more common,
but difficult questions in this area concern the receipt, acceptance, or solicitation of campaign
contributions from those whom the Member or his or her staff has assisted in matters before
In addition to statutory and rule restrictions relating to such things as the receipt of payments or
gifts in return for representational activity, or concerning a Member’s or staff’s own personal
interest in a matter, there are also general ethical considerations and guidelines which are
concerned with the prevention of undue or improper influence by those in the legislative branch
over the duties and functions of executive officers and employees, separate from the issue of
compensation or reward. These considerations and guidelines are based in some respects on the
separation of powers doctrine, as well as on the notions of due process and fairness in
administrative proceedings, and the issues of the use or abuse of political influence over matters
which are expected to be based substantially on competitive, merit principles, or which are to be 175
decided strictly on particular statutory or regulatory criteria. Executive or administrative
decisions on some matters, such as certain federal contracts or hiring in the civil service, are often
expressly required to be made on a competitive, merit basis, and may be expressly required not to
be made on the basis of political affiliation or influence.
The House Committee on Standards of Official Conduct in 1973 incorporated several generally
accepted ethical standards and principles into an advisory opinion on Members’ offices dealing
with the administrative agencies of the Federal Government. Advisory Opinion No. 1, “On the
Role of a Member of the House of Representatives in Communicating With Executive and
Independent Agencies,” provides, in part, as follows:
This Committee is of the opinion that a Member of the House of Representatives, either
on his own initiative or at the request of a petitioner, may properly communicate with an
Executive or Independent agency on any matter to:
Request information or a status report;
Urge prompt consideration;
175 Federal case law concerning notions of due process and unfair congressional or “political” interference in
administrative matters are discussed in Part II of this report.
Arrange for interviews or appointments;
Call for reconsideration of an administrative response which he believes is not
supported by established law, Federal Regulation, or legislative intent;
Perform any other service of a similar nature in this area compatible with the
criteria hereinafter expressed in this Advisory Opinion.
PRINCIPLES TO BE OBSERVED
The overall public interest, naturally, is primary to any individual matter and should be
so considered. There are also other self-evident standards of official conduct which Members
should uphold with regard to these communications. The Committee believes the following
to be basic:
1. A Member’s responsibility in this area is to all his constituents equally and should be
pursued with diligence irrespective of political or other considerations.
2. Direct or implied suggestion of either favoritism or reprisal in advance of, or
subsequent to, action taken by the agency contacted is unwarranted abuse of the
3. A Member should make every effort to assure that representations made in his name
by any staff employee conform to his instruction.
The Senate adopted in 1992 a specific Senate Rule dealing with constituent service and
intervention into administrative matters. This Rule was adopted after the Senate Select
Committee on Ethics conducted disciplinary proceedings concerning five Senators and their
personal interventions into executive branch investigations of failed savings and loan institutions.
The Senate Rule, at Rule 43, provides:
1. 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.
2. At the request of a petitioner, a Member of the Senate, or a Senate employee, may
communicate with an executive or independent government official or agency on any matter
(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 reasonable supported by statutes, regulations or considerations of
equity or public policy; or
(f) perform any other service of a similar nature consistent with the provisions of
3. 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
4. A Member shall make a reasonable effort 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 this rule.
5. Nothing in this rule shall be construed to limit the authority of Members, and Senate
employees, to perform legislative, including committee, responsibilities.
One of the more fundamental ethical concerns and direct prohibitions concerning administrative
intervention, or any other “casework” function by a congressional office, relates to the receipt of
things of value in connection with such services. Depending on the circumstances of the receipt
of money, gifts or contributions, and the “nexus” of such items of value to the services performed
or agreed to be performed by a Member or staff, such conduct may implicate various criminal
laws as well as ethical rules and guidelines.
The federal bribery law at 18 U.S.C. §201 provides criminal penalties for any public official who
“corruptly” seeks, accepts, or agrees to receive anything of value “personally or for any other 176
person or entity, in return for being influenced in the performance of any official act ....” Within
the bribery statute is also the so-called “illegal gratuities” clause, discussed below, which
penalizes a public official who, other than as provided by law, agrees to accept anything of value 177
personally “for or because of” any official act performed or to be performed.
The bribery provision of federal law requires in the first place that “anything of value” be
corruptly sought or received in return for being influenced in an official act. The term “anything
of value” is interpreted broadly, and could include cash, gifts, discounts, or even campaign
contributions, “because the words ‘anything of value’ comprehend anything that conceivably can 178
be offered or given as a bribe.”
176 18 U.S.C. § 201(b)(2)(A).
177 18 U.S.C. § 201(c)(1)(B).
178 H.R. Rpt. No. 748, 87th Cong., 1st Sess. 18 (1961), to accompany H.R. 8140, the major revision and recodification of
the federal bribery and conflict of interest laws in 1962, P.L. 87-849; see also United States v. Williams, 705 F.2d 603,
622-623 (2d Cir. 1983), cert. denied, 464 U.S. 1007; United States v. Girard, 601 F.2d 69, 71 (2d Cir.), cert. denied,
444 U.S. 871 (1979).
The bribery provisions, furthermore, cover things of value such as gifts, bequests or contributions
which are sought not only for oneself (as is an “illegal gratuity”), but also things of value which
are sought for third parties, that is, “for any other person or entity.” As noted in the legislative
history of this provision: “This subsection also forbids an attempt to influence a public official by
an offer or promise of something of value which will be to the advantage of somebody else in 179
whose well-being he may be interested.” Contributions of funds or things of value to third
parties and other entities such as to campaign committees or to charitable foundations, may thus 180
be covered by the statute when the other elements of the law are satisfied.
The operative crux of the bribery statute specifically requires that the thing of value be
“corruptly” received or sought by the public official “in return for being influenced” in the
performance of an official act. The central element of intent which is characteristic of a bribe is 181
thus a “corrupt” or wrongful bargain or agreement, often described as some express or implied
quid pro quo, that is, a corrupt or wrongful understanding or agreement to do something in return 182
for something else. For a bribe to occur, the bribe must be shown to be the “prime mover or 183
producer of the official act” performed or promised to be performed. General contributions,
donations or payments to causes, entities or to other persons, or so-called “goodwill” payments,
which are given to create a favorable atmosphere or feeling of gratitude in the recipient, or with
“some generalized hope or expectation of ultimate benefit on the part of the donor,” but which are
not given nor received in the context of any express or implied agreement to perform some
official act, that is, without a specific quid pro quo, are not considered “bribes” under the 184
Within the federal bribery statute is the so-called “illegal gratuities” clause at 18 U.S.C. §201(c). 185
This provision has been found to be a “lesser included offense” of a “bribe,” and does not
require a “corrupt” intent for a violation. The different intent elements for an illegal gratuity, that
is, the absence of a required “corrupt” intent, and the absence of a need to show an intent to
influence or be influenced, are among the principal distinctions between a bribe and an illegal
179 H.R. Rpt. No. 748, supra at 18.
180 United States v. Kelly, 748 F.2d 691, 699 (D.C. Cir. 1984); United States v. Gomez, 807 F.2d 1523, 1527 (10th Cir.
181 The criminal intent of “corruptly” seeking or agreeing to accept something of value in return for being influenced in
an official act “bespeaks a higher degree of criminal knowledge and purpose” than does the so-called “illegal
gratuities” clause of the bribery law. United States v. Brewster, 506 F.2d 62, 71 (D.C.Cir. 1974). United States v. Hsieh th
Hui Mei Chen, 754 F.2d 817, 822 (9 Cir. 1985), cert. denied, 471 U.S. 1139 (1985). The House Report on the bribery
provision recodified in 1962 described the word “corruptly” to mean “with wrongful or dishonest intent.” H.R. Rpt. No.
87-748, supra at 18.
182 United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404 (1999); United States v. Brewster, supra at
62, 72; United States v. Tomblin, 46 F.3d 1369, 1379 (5th Cir. 1995); United States v. Arthur, 544 F.2d 730, 734, 735 th
(4 Cir. 1976).
183 United States v. Brewster, supra at 72, 82.
184 United States v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980); United States v. Arthur, supra at 734, 735; United
States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993); United States v. Tomblin, supra at 1379.
185 United States v. Brewster, supra at 68-76.
What is required for a violation of the illegal gratuities clause is that a public official receive or 186
seek something of value, other than as provided by law, “personally” (or “for himself”), “for or
because of” an “official act” done or to be done by him. There does not have to be an express 187
quid pro quo or a corrupt bargain for an illegal gratuity, but the thing of value must be received
for the official, and must be “for or because of” an official act done or to be done, that is,
connected in some way to some official duty or function. An illegal gratuity may be received
even after an official act is performed, as a “thank you” or in appreciation for doing an act that
would have been done in any event, uninfluenced by the gratuity; while a bribe, on the other
hand, must be shown to be the “prime mover” influencing the act.
Although no specific wrongful bargain, or “corrupt” intent, in receiving an illegal gratuity need
be shown, there is a criminal intent required of an illegal gratuity which would distinguish this
wrongful receipt of a payment from a mere gift unrelated to any official act, or from such things
as lawful campaign contributions given to an elected public official “because of” his stand, vote,
or position on an issue. The intent has been described by one court as the knowledge that one is
being compensated or rewarded for a particular official act or acts:
...[U]nder the gratuity section, “otherwise than as provided by law ... for or because of any
official act” carries the concept of the official act being done anyway, but the payment only
being made because of a specifically identified act, and with a certain guilty knowledge best
defined by the Supreme Court itself, i.e., “with knowledge that the donor was paying him
compensation for an official act ... evidence of the Member’s knowledge of the alleged 188
briber’s illicit reasons for paying the money is sufficient.”
While some cases in the circuits had gone so far as to find that a specific official act need not be
contemplated or identified for a payment or compensation to constitute an “illegal gratuity” as
long as payments were given to a recipient who is in a “position to use his authority in a manner 189
which could affect the gift giver,” the Supreme Court in Sun-Diamond in 1999 clarified that
such so-called “status gifts,” unconnected to any identified official act, were not a violation of the 190
illegal gratuities provision.
In addition to the intent requirement, under the illegal gratuities clause it must be shown that the
compensation received by the public official was received “personally,” or as stated in the earlier
version of the law, “for himself.” If things of value are directed to independent third parties or
entities, such payments might not be considered to have been received or sought with the
requisite intent to “compensate” the public official “personally” for his acts, because they were 191
not received by the official “for himself” or “personally,” but rather by another entity or person.
186 The statute was amended in 1986, P.L. 99-646, §46(f),(g), 100 Stat. 3601-3604, November 10, 1986, to provide
technical amendments to the criminal code, including changing the terms “for himself” to “personally.” There is no
indication of an intent to change the substance of the elements of the offense, and therefore in this report the terms
“personally” and “for himself” are used interchangeably.
187 Brewster, supra at 72; Sun-Diamond, supra at 404 - 405.
188 United States v. Brewster, supra at 81, 82, quoting from earlier Supreme Court decision in United States v.
Brewster, 408 U.S. 501, 527 (1972).
189 United States v. Niederberger, 580 F.2d 63, 69 (3rd Cir. 1978), cert. denied, 439 U.S. 980 (1978); United States v.
Allessio, 528 F.2d 1079, 1082 (9th Cir. 1976), cert. denied, 426 U.S. 94 (1976).
190 Sun-Diamond, supra at 406 - 410.
191 United States v. Brewster, supra at 77.
Members of Congress, as well as all other officers and employees of the government, are
prohibited under the provisions of a conflict of interest statute at 18 U.S.C. §203(a) from
receiving or sharing in any private “compensation” for “representational services” rendered by
themselves or another for a private party before any agency of the United States Government. The
required proof of “compensation” for services rendered, the necessary intent, and the evils at 192
which the statute are directed, are similar to the “illegal gratuities” clause of the bribery statute.
That is, “corrupt” intent is not required to be proven, but it is required to show that 193
“compensation” was knowingly received for the services rendered.
In May v. United States, supra, a Member of Congress who was the Chairman of the Military
Affairs Committee contacted the War Department about military contracts to a private firm, after
having received complaints from the owners and officers of that firm that the War Department
was being unfair and discriminatory towards them. The court found that regardless of “whether
the complaints were or were not well-founded,” and regardless of whether or not the contacts and
intercession by the Member “were patriotic, legitimate and within the scope of his legitimate
duties as a Congressman,” the statute in question would be violated by receiving private 194
compensation for such activities. The court thus found that the services may have been
“proper,” but the compensation for them was not:
It was alleged that on numerous occasions May telephoned, called personally or wrote
officials of the War Department in respect to these matter in which the Garssons were
interested, and brought his official prestige and influence to bear upon those officers in order
to promote the interests of the Garssons.
* * *
If the money was received by May as compensation for acts done by him for the
Garssons, it is immaterial that those acts were patriotic, legitimate and within the scope of
his official duties as a Congressman. ... [I]f a judge receives payment from a party for
rendering a correct decision, he is, nevertheless, guilty of a criminal act in receiving a bribe.
So, if a Congressman receives compensation for services rendered by him to a person in
relation to any matter in which the United States is interested, before any Government
department, he is guilty of violating the statute, even though the service rendered was a
proper act on his part. A Congressman cannot legally receive compensation from a private
person for doing his duty in respect to something in which that person and the United States
have interests. The gist of the offense is the receipt of compensation, not the nature of the act 195
done by the recipient in consequence thereof.
Although similar in nature and necessary proof to the illegal gratuities clause, the statute is not
necessarily duplicative of the illegal gratuities provision because the “services” rendered, for
which compensation may not be accepted under §203, need not be within the “official duties” of
the officer or employee accepting such compensation, as it must be for the illegal gratuities clause
192 United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978), cert. denied, 439 U.S. 870 (1978).
193 United States v. Johnson, 419 F.2d 56, 60 (4th Cir. 1969), cert. denied, 397 U.S. 1010 (1970); May v. United States,
175 F.2d 994 (D.C.Cir. 1949), cert. denied, 338 U.S. 830 (1949). Staff employees are further prohibited from private,
unofficial representational activity for others before federal agencies, even if not compensated. 18 U.S.C. §205.
194 175 F.2d at 1006, 1008-1009.
195 175 F.2d at 999, 1006.
of the bribery law. Section 203 may therefore cover a broader and wider range of representational
activities for private parties than would the illegal gratuities clause. Furthermore, the statute bars
an officer or employee from sharing in or receiving compensation even for someone else’s 196
representational services before a federal agency.
Somewhat related to the bribery offense is the “extortion” provision of federal law, commonly
known as the “Hobbs Act,” which prohibits the interference with commerce by way of
“extortion,” defined as the “obtaining of property from another, with his consent, induced by 197
wrongful use of actual or threatened force, violence or fear, or under color of official right.”
Demands by elected public officials on private citizens for payments, such as for campaign
contributions, even when the payments are to be made to third parties such as campaign
committees, may fall within the extortion provisions when there is some wrongful use of one’s
official position to induce or coerce the contribution. As stated by one court, the Hobbs Act would
“penalize those who, under the guise of requesting ‘donations,’ demand money in return for some 198
act of official grace.” Federal courts have noted that the crime of “extortion” and the crime of
bribery under federal law, “are really different sides of the same coin,” and that the intent 199
requirements of the two federal offenses are parallel. That is, under the extortion provisions of
the “Hobbs Act,” there is generally, with respect to such things as campaign contributions which
have a facial legitimacy, a need to demonstrate a quid pro quo, a wrongful bargain or
understanding, that the campaign contribution solicited is exchanged for an official act requested 200
It is possible that a scheme or agreement between two or more people to wrongfully exert
influence upon an agency of the government might arguably sustain a theory of a violation of 18
U.S.C. §371, conspiracy to defraud the United States. The conspiracy statute is quite broad in its
application, and could cover schemes to defraud the United States even when the object is not to
defraud the United States out of money or property, but rather to defraud the United States out of
the proper and impartial duties it should expect from its officers and employees, or which
interferes with the proper functioning of an agency. As noted by the Supreme Court, a conspiracy
to “defraud the United States” does not necessarily require a showing that the government was
cheated out of money or property, nor does it necessarily require that an illegal act be done:
To conspire to defraud the United States ... also means to interfere with or obstruct one of its
lawful governmental functions by deceit, craft or trickery, or at least by means that are
dishonest. It is not necessary that the Government shall be subjected to property or pecuniary
loss by the fraud, but only that its legitimate official action and purpose shall be defeated by
196 United States v. Eilberg, 507 F.Supp. 267 (E.D.Pa. 1980).
197 18 U.S.C. § 1951(b)(2). Emphasis added.
198 United States v. Dozier, 672 F.2d 531, 537 (5th Cir.), cert. denied, 459 U.S. 943 (1982).
199 United States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993), citing Evans v. United States, 504 U.S. 255, 265-268 (1992).
200 McCormick v. United States, 500 U.S. 257 (1991).
misrepresentation, chicane or the overreaching of those charged with carrying out the 201
Some cases have even found that a charge of conspiracy to “defraud the United States,” that is, to
interfere with or obstruct a lawful government function, need not even allege any specific “deceit, 202
craft, trickery or dishonesty” in carrying out that scheme. To establish a conspiracy it must be
shown that there existed an agreement, either tacit or express, to “defraud the United States” or to
do an illegal act, that the person charged knew of the conspiracy and joined it or “intended to
associate himself with its objectives,” and that at least one overt act was committed in furtherance 203
of the conspiracy.
Conspiracies to defraud the United States have been found in improper, wrongful or corrupt 204
legislative attempts to influence federal agencies. In United States v. Sweig, count one of a
grand jury indictment was sustained which charged defendants Martin Sweig and Nathan
Voloshen with conspiracy to defraud the United States in connection with the exertion of
improper influence upon government agencies and their officials from the office of the Speaker of
the United States House of Representatives. Specifically, Count One of the indictment charged
that Sweig, a congressional employee, and Voloshen, who was not an employee of the
with each other and other persons to the grand jury known and unknown, to defraud the
United States and agencies thereof, in connection with its lawful government functions
hereinafter described, to wit: (a) its lawful function to have its business and affairs conducted
honestly and impartially as the same should be conducted, free from fraud, improper and
undue influence, dishonesty, unlawful impairment and obstruction; (b) its lawful right to
have its officers and employees, free to transact the official business of the United States
unhindered, unhampered, unobstructed, unimpaired and undefeated by the exertion upon
them of dishonest, unlawful, impaired and undue pressure and influence.
The indictment charged that the defendants had misused the office and influence of the Speaker
of the House and had pressured various federal agencies and their employees concerning certain
matters pending before the agency. The court discussed the activities in which the defendants
were alleged to have been involved:
Paragraph 4 of the indictment says it was part of the conspiracy (a) that Voloshen “would
and did accept fees from various persons with matters pending before [federal] departments
and agencies ... to exert the influence of the office of the Speaker of the House to said
agencies, on behalf of said persons,” (b) that Voloshen “would and did use the offices,
telephone, secretarial staff, and goodwill of the Speaker,” (c) that both defendants would
agree to have Sweig, “by various means, express the interest of the Office of the Speaker ...
201 Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); Dennis v. United States, 384 U.S. 855, 861-862 (1966).
202 See, for example, United States v. Shoup, 608 F.2d 950, 963-964 (3rd Cir. 1979), (the requirement of showing deceit,
craft, trickery or dishonesty “has long ago been discarded by the courts”), citing as authority Dennis v. United States,
384 U.S. 855, 861 (1966); and also United States v. Johnson, 383 U.S. 169, 172 (1965) (scheme whereby “two
Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments” for
“legal fees” and “campaign contributions” found by jury to constitute conspiracy to defraud the government, but
reversed because of Speech or Debate Clause implications); see Haas v. Henkel, 216 U.S. 462, 479 (1910); note 24
American Criminal Law Review 459, 461 (1987).
203 Iannelli v. United States, 420 U.S. 770 (1975); Blumenthal v. United States, 332 U.S. 539 (1947); United States v.
Treadwell, 760 F.2d 327 (D.C.Cir. 1985).
204 316 F. Supp. 1148 (S.D.N.Y. 1970).
in said matters ... on behalf of said persons,” (d) that Voloshen “would and did falsely
assume and pretend” to be a member of the Speaker’s staff and (e) that Sweig “would and
did act as agent or attorney for persons before departments and agencies of the Government
in connection with ... matters in which the United States was a party and in which it had a
direct and substantial interest.” Paragraph 5 alleges the use of telephone calls, from the
Speaker’s offices and elsewhere, and of personal visits by both defendants to “express the
interest of the office of the Speaker of the House in said matters pending before said 205
Although Voloshen was said to have received fees for his representations, Sweig, the
congressional employee, was not alleged to have done so. Nevertheless the court sustained the
indictment against Sweig:
The fact that Sweig is not alleged to have taken money or other things for his part in the
alleged conspiracy does not justify dismissal of Count One for facial insufficiency. It may be
doubted whether a jury would - or could be permitted to - convict unless it found evidence to
show for each alleged conspirator some meaningful “stake” in the enterprise. But the interest 206
need not have been monetary, or material at all. [Citations omitted].
Nathan Voloshen pleaded guilty to one count of conspiracy and three counts of perjury. Martin
Sweig, who unlike Voloshen, was actually in the employ of the office of the Speaker and was not
alleged to have accepted fees, was acquitted by the jury on the “influence peddling” conspiracy 207
charges, but was found guilty on one charge of perjury. As reported by the press in 1970:
The verdict was a personal triumph for defense counsel Smith, who argued that Sweig’s
efforts in contacting federal agencies were a customary practice on Capitol Hill and not 208
unlawful even if the jurors might find the practice unfair.
Earlier, the press had quoted Sweig’s defense attorney concerning this argument relevant to the
practice and ethics of congressional intervention on behalf of individuals before federal agencies:
“Congress has never made criminal the acts alleged against Sweig” says Smith. “It
would be presumptuous in the extreme and in clear violation of constitutional separation of
powers for the judiciary to impose standards of conduct on legislative employees when the 209
Congress has declined to do so.”
In United States v. Burgin,210 the court found that the count of conspiracy to defraud the
government could be sustained where a former State senator and a current member of the State
Legislature were involved in a “silent scheme” to exert influence over a State agency
administering federally financed contracts, finding that §371 “not only reaches financial or
property loss through employment of a deceptive scheme, but also is designed and intended to 211
protect the integrity of the United States and its agencies, programs and policies.” In this case,
the court found that the fact that the public official involved in the conspiracy had a covert
205 316 F. Supp. at 1152.
206 Id. at 1156.
207 Note United States v. Sweig, 441 F.2d 114 (2d Cir. 1971), cert. denied, 403 U.S. 932 (1971).
208 Washington Post, July 10, 1970, at p. A1.
209 Washington Post, February 25, 1970, at p. A10.
210 621 F.2d 1352 (5th Cir. 1980).
211 Id. at 1356.
financial interest in the contracts, provided the “overreaching of an agent of the United States by
a public official having a financial quid pro quo interest in a federally financed contract,” which 212
amounted to an “obstruction of a lawful governmental function.” The court’s finding agreed
with the government’s charge that “the meaning of ‘defraud’ includes any scheme of ‘influence
peddling’ whereby a public official receives remuneration for the exertion of influence upon other 213
The underlying motive or indirect financial interest in performing or influencing an official act
affecting an agency decision might thus be relevant to a “conspiracy” to defraud charge, and
could arguably provide the “wrongful” nature of the actions to influence federal agency decisions
if such actions are motivated by factors other than the general public interest which one is elected 214
to serve. In a conflict of interest case, United States v. Podell, the court noted the principle of a
“breach of trust” by a Member of Congress when the Member “shed[s] the duty of disinterested
advocacy owed the government and his constituents in favor of championing private interests 215
potentially inconsistent with this charge.” This wrongful “breach of trust” may arguably exist
even when the means in conducting such intervention and exercising such influence are not in
themselves improper or wrongful, if the motivation is improper.
One of the more persistent and difficult issues in relation to interventions is the one concerning
any connection, “nexus” or “linkage” between official interventions and the making, promising,
or solicitation of campaign contributions from those persons for whom such interventions were
made. Campaign contributions, unlike personal gifts and favors to officials, are necessary and
encouraged in our system of government where campaigns to congressional office are privately
financed, and thus have a facial legitimacy that other transfers of things of value to Members may
not have. The ethical inferences that might be raised concerning unrestricted personal gifts or
entertainment provided to a legislator, might not be relevant in the case of congressional
campaign contributions which are legitimate, acceptable, and necessary economic and monetary 216
transfers to Members of Congress.
Both the House and Senate ethics committees thus note that it is perfectly acceptable, and often
necessary, for Members of Congress to represent the interests of a constituent before a federal
212 Id. at 1357.
213 Id. at 1356. Compare to Porter v. United States, 591 F.2d 1048, 1055, (5th Cir. 1979), concerning lack of
participation by public officials in an alleged “scheme.”
214 436 F.Supp. 1039, 1042 (S.D.N.Y. 1977), aff’d 572 F.2d 31 (2d Cir. 1978).
215 The Standing Orders of the Senate expressly note that it is the policy of the Senate that a “public office is a public
trust,” and that the public officer “has been entrusted with public power by the people; that the officer holds this power
in trust to be used only for their benefit and never for the benefit of himself or a few; and that the officer may never
conduct his own affairs so as to infringe on the public interest.” Standing Orders of the Senate, Senate Manual, §79.6, th
S. Res. 266, 90 Cong., 2d Sess. (1968). Advisory Opinion No. 1 of the House Committee on Standards of Official
Conduct warns that a “Member’s responsibility in this area” of intervention before agencies “is to all his constituents
216 Congress and the Public Trust, supra at 180: “Our present system of financing political campaigns makes
Montesquieu’s views incapable of perfect implementation. Since Members of Congress must necessarily accept many
donations of money as campaign contributions, it is unavoidable that they are subject to some risks of influence caused
by their gratitude for donations from friends. However, campaign contributions are tolerated because they are a
necessary incident of our present electoral system. Acceptance of gifts beyond the requirements of campaign
necessities cannot be similarly justified.”
agency even when that constituent has made substantial campaign contributions to the Member’s 217
campaign. It would be an unusual rule, at best, which would work to prohibit a Member of
Congress from representing those who have supported his candidacy, and limit a Member’s
representations to only those who have not supported him. Any interventions and representations,
however, should not be based on, nor consider, the campaign support that a Member has received
from a particular petitioner, but should, rather, be based on the merits of the particular matter and
the general public interest – the matter’s impact, importance or significance to the Member’s
constituents, district or State.
Certainly, campaign contributions, whether of soft money or regulated hard money, could be the
“thing of value” in a “bribe,” and can be implicated in a bribery scheme if the other elements of 218
the crime of bribery are present. However, for a “bribe” to be present in the case of campaign
contributions, there must be shown a specific quid pro quo, that is, a corrupt agreement or
understanding between the parties that the public official will do some specific official act in
return for the receipt of certain valuable consideration. When such a corrupt agreement exists
(e.g., “I will intervene in this matter in return for your providing a campaign contribution to my
political committee”), there exists the requisite element of being “influenced” to do the act “in 219
return for” the campaign contribution. When there is only a campaign contribution and a
subsequent official act favorable to the donor, or an official intervention with an agency and a
later campaign contribution, but no evidence of such an agreement directly linking the motivation
for the official act to the contribution, then there is no bribe. This is why the Supreme Court has 220
noted that bribery is among the least subtle, and most blatant forms of public corruption.
As to campaign contributions generally, the courts have noted that: “No politician who knows the
identity and business interests of his campaign contributors is ever completely devoid of 221
knowledge as to the inspiration behind the donation.” While campaign contributions can be
bribes where there exists a corrupt bargain (a quid pro quo arrangement), campaign contributions
given to a candidate or official merely as support, or in appreciation or thank you for certain
official acts, positions or votes taken, as is the case for many or most campaign contributions, are
not considered to be bribes. The Court of Appeals for the District of Columbia Circuit, in United
States v. Anderson, supra, for example, where a conviction of a lobbyist was upheld for bribing a
Senator with “campaign contributions” to influence the Senator on particular postal rate
legislation, approved the jury instructions given by the trial judge which “exonerated campaign 222
contributions inspired by the recipient’s general position of support on particular legislation.”
217 S. Rpt. No. 102-223, supra at 12, and Senate Ethics Manual, supra at 178; House Committee on Standards of
Official Conduct, Statement Regarding Complaints Against Representative Newt Gingrich, 101st Cong., 2d Sess. 66
(1990), and House Ethics Manual, supra at 250-251.
218 United States v. Anderson, 509 F.2d 312 (D.C.Cir. 1974), cert. denied, 420 U.S. 991 (1975). Under the bribery
clause, a bribe need not be only for the official “personally,” but may be sought “for any other person or entity” (18
U.S.C. § 201(b)(2)), such as, presumably, a campaign committee or political party. See, e.g., United States v. Kelly, 748
F.2d 691, 699, n.19 (D.C. Cir. 1984).
219 United States v. Brewster, supra; United States v. Anderson, supra at 330.
220 Buckley v. Valeo, 424 U.S.1, 27-28 (1976).
221 United States v. Brewster, supra at 81.
222 509 F.2d supra at 330.
Campaign contributions may also be in the nature of general contributions, donations or payments
to causes, entities or to other persons, sometimes called “goodwill” payments, which are given
merely to create a favorable atmosphere or feeling of gratitude in the recipient, or with “some
generalized hope or expectation of ultimate benefit on the part of the donor,” but which are not
given nor received in the context of any express or implied agreement, and are therefore not 223
considered “bribes” under the statute. Political contributions to entities such as a candidate’s
political campaign committee do not in themselves constitute bribes “even though many 224
contributors hope that the official will act favorably because of their contributions.” A Court of
Appeals in United States v. Allen, interpreting a bribery statute being used as a predicate offense
for a RICO charge, explained as follows:
[A]ccepting a campaign contribution does not equal taking a bribe unless the payment is
made in exchange for an explicit promise to perform or not perform an official act. Vague 225
expectations of some future benefit should not be sufficient to make a payment a bribe.
The concept of the lack of a corrupt agreement generally in campaign contributions, as
distinguished from bribes, was discussed in terms of reciprocity and “obligation” by Judge John
T. Noonan, Jr., in his work entitled Bribes. Discussing what he calls “donations of democracy,”
Judge Noonan raises the issue of the differences between such contributions and bribes, and later
in his work attempts to answer the question raised:
Normally, at any rate, money is given to an officeseeker whose views on important issues
coincide with the giver’s. The money is given with the hope, expectation, purpose that
particular views will be translated into particular votes. A tacit reciprocity exists. How is
money given a candidate different from a bribe?
* * *
Campaign contributions are imperfect gifts because they are usually not set in a context of
personal relations; they are intended to express ... an identification with a cause. They are not
wholly the recipient’s – their purpose is restricted. They are given in response to work done
or expected to be done. ... They do not express or create overriding obligations, that is, there
is no absolute obligation on the part of the contributor to recognize past work by the
candidate, and there is no absolute obligation on the part of the candidate to do the work the
contributor expects. Absence of absolute obligation creates one difference between 226
contributions and bribes.
It has been theorized that there may be some incidental “reciprocity” expected between donor and
recipient in our political process. Legislators in Congress, unlike judges, have a specific
constituency which they represent and on whom, in return, they rely for the donation of funds to
their campaigns. Judge Noonan argued that to some extent, campaign contributions, or at least
large ones, may be a kind of “access” payment to our representative which is expressly permitted
in practice in our system of private funding of campaigns for elective office:
223 United States v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980); United States v. Arthur, supra at 734, 735; United
States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993).
224 United States v. Tomblin, 46 F.3d 1369, 1379 (5th Cir. 1995).
225 10 F.3d 405, 411 (7th Cir. 1993).
226 Noonan, Bribes, supra at 621, 696-697.
Campaign contributions may be considered a subspecies of a larger class – access
payments. “I’m not paying for my congressman’s vote,” the large contributor will say. “I
simply want to be sure he will listen to my side of the case.” ... The access payment in fact
and function, if not in hairsplitting theory, is a payment to establish reciprocity.
* * *
...[T]he access buyer is paying not only for attention but for favorable attention. The payment
is close to what would be called a bribe if made to a judge; but access to and favorable
attention by, a legislator has not generally been regarded in the same way as an approach to a
The hypotheticals show that a legislator is not in the position of a judge. The judge’s
office is modeled on the paradigm of the transcendent Judge of the Bible and a sharp line
distinguishes him from the litigants before him. The legislator, on the contrary, is his
constituent’s representative .... A certain identity of interest is expected to exist between
constituent and legislator.... Given the acceptance of this mutuality of purpose between
contributor and legislator, the prevailing assumption in America has been that campaign
contributions normally fall in the range of cases where specific votes are not being bought. ...
At times “campaign contribution” has been a code word used as a flimsy cover for a payment
intended to enrich an official personally in exchange for an official act benefitting the payor.
These cases have not disturbed the normal assumption that a campaign contribution is 227
different from a bribe.
That there may be some tacit reciprocity, particularly concerning “access”to an elected official by
a large contributor, has not as yet been considered sufficient to satisfy the corrupt bargain or
agreement required for a bribe, in part because mere access to, that is, meeting with an individual,
is not necessarily considered an “official act” performed or agreed to be performed by the elected 228
Although for an “illegal gratuity” (unlike a “bribe”), no specific illegal bargain or “corrupt” intent
need be shown, there is a criminal intent required of an illegal gratuity which would distinguish
this wrongful receipt of a payment from a lawful campaign contribution given to a Member of
Congress, even given “because of” the Member’s acts, such as intervention in an agency matter
on behalf of a donor. As noted by the court in Brewster: “Every campaign contribution is given to
an elected public official probably because the giver supports the acts done or to be done by the 229
elected official.” The criminal intent required for an illegal gratuity as stated by the court,
however, is a knowing and willful receipt of a payment as “compensation,” other than as provided
by law such as one’s salary, for doing an official act. The court in Brewster explained:
227 Noonan, Bribes, supra at 689, 623-624.
228 The Department of Justice has explained in congressional testimony that: “The courts that have addressed the issue
have held that such access in exchange for political contributions is not an ‘official act’ that can provide the basis for a
bribery or extortion prosecution.” Testimony of Attorney General Janet Reno, to the House Committee on the thst
Judiciary, Hearings, 105 Cong., 1 Sess., October 15, 1997, at 32; see United States v. Carpenter, 961 F.2d 824, 827 thth
(9 Cir. 1992); United States v. Sawyer,85 F.3d 713,731 (4 Cir. 1996); and other cases cited in the Attorney General’s thth
testimony, United States v. Rabbitt, 583 F.2d 1014, 1028 (4 Cir. 1978); United States v. Loftus, 992 F.2d 793, 796 (8
229 506 F.2d at 73, footnote 26.
No politician who knows the identity and business interests of his campaign contributors is
ever completely devoid of knowledge as to the inspiration behind the donation. There must
be more specific knowledge of a definite official act for which the contributor intends to
compensate before an official’s action crosses the line between guilt and innocence.
* * *
...[U]nder the gratuity section, “otherwise than as provided by law ... for or because of any
official act” carries the concept of the official act being done anyway, but the payment only
being made because of a specifically identified act, and with a certain guilty knowledge best
defined by the Supreme Court itself, i.e., “with knowledge that the donor was paying him
compensation for an official act ... evidence of the Member’s knowledge of the alleged 230
briber’s illicit reasons for paying the money is sufficient.”
In addition to providing evidence of the guilty knowledge that a public official had of being
compensated for an official act, it must be shown that the compensation received by the public
official was received “personally” or “for himself.” Even if things of value such as contributions
were arguably sought and received with the requisite guilty knowledge that they were given “for
or because of” an act to be done or which had been done by the Member, if they were directed to
a lawful campaign committee, even a Representative’s or Senator’s principal campaign
committee, or another independent entity such as a charitable organization, such payments might
not be considered to have been received or sought with the requisite intent to “compensate” the
Member “personally” for his acts, because they were not received for himself or personally, but 231
rather for another entity or person.
If campaign contributions for federal elections are the “thing of value” received, therefore, it may
then be difficult to satisfy this element of the offense that the thing of value was received by the
official “for himself” or for the official “personally.” Under federal law all candidates for
Congress must have a principal campaign committee to which campaign contributions are given
and from which they are expended under authority of their treasurer, for campaign or other 232
designated purposes, and candidates and Members of Congress may not convert campaign 233
contributions to their own “personal” use under statute and congressional rule. Thus, even
contributions to a congressman/candidate’s own personal campaign committee would arguably, as
a general matter, not be considered contributions to the individual Member/candidate “for
himself” or to him or her “personally,” and thus would not come within the illegal gratuities
In the Brewster case the court there found that the “contributions” were, however, given by a
lobbyist to a sham committee which was merely the “alter ego” of the Senator, which did not file
public reports nor keep records such as other political committees under the federal law at that
time (the old Federal Corrupt Practices Act), and from which the Senator freely drew funds for 234
his own personal use. As such, these “illegal gratuity” payments were distinguishable from
230 United States v. Brewster, supra at 81, 82, quoting from earlier Supreme Court decision in United States v.
Brewster, 408 U.S. 501, 527 (1972).
231 United States v. Brewster, supra at 77.
232 2 U.S.C. §432(e); 2 U.S.C. §432(a); 2 U.S.C. §439a.
233 2 U.S.C. §439a, Senate Rule XXXVIII, para.2; House Rule XXIII(6).
234 506 F.2d at 69-70, 75-76.
bona fide campaign contributions, which are not prohibited as illegal gratuities because they are 235
not for the candidate/official himself.
If the facts are developed that contributions or payments ostensibly made to a third party or entity
“for or because of” official acts done or to be done by a Member were in fact used or expended in
a manner to financially enrich or financially benefit the Member personally, then it might be
argued that such funds were received “for himself.” Contributions to a committee or any third
party, therefore, which are used, for example, to pay for personal living expenses of a Member,
one’s personal car or other personal expenses such as transportation, clothing, or food, might 236
arguably be considered payments for the Member “himself.”
The Supreme Court has found that elected officials who ask for bona fide campaign
contributions, only violate the “Hobbs Act” extortion law when there is evidence of a specific 237
quid pro quo, similar to the bribery statute. The Court noted in McCormick v. United States,
that the mere nearness in time of official acts by a recipient public official and campaign
contributions from the beneficiaries of those acts, that is, “shortly before or after campaign
contributions are solicited and received from those beneficiaries,” does not evidence “extortion”
under the law, and is an “unrealistic assessment” of the requirements of the crime, particularly in 238
light of how “election campaigns are financed by private contributions and expenditures.”
Rather, the Court found that the statute would be violated by a request from an elected official to
a member of the public for a voluntary campaign contribution “only if the payments are made in
return for an explicit promise or undertaking by the official to perform or not to perform an
official act,” where the “official asserts that his official conduct will be controlled by the terms of 239
the promise or undertaking.” The Supreme Court in McCormick explained:
Serving constituents and supporting legislation that will benefit the district and
individuals and groups therein is the everyday business of a legislator. It is also true that
campaigns must be run and financed. Money is constantly being solicited on behalf of
candidates, who run on platforms and who claim support on the basis of their views and what
they intend to do or have done. Whatever ethical considerations and appearances may
indicate, to hold that legislators commit the federal crime of extortion when they act for the
benefit of constituents or support legislation furthering the interests of some of their
constituents, shortly before or after campaign contributions are solicited and received from
those beneficiaries, is an unreal assessment of what Congress could have meant by making it
a crime to obtain property from another, with his consent, “under color of official right.” To
hold otherwise would open to prosecution not only conduct that has long been thought to be
well within the law but also conduct that in a very real sense is unavoidable so long as
235 “To the contrary, however, a public official’s acceptance of a thing of value unrelated to the performance of any
official act and all bona fide contributions directed to a lawfully conducted campaign committee or other person or
entity are not prohibited by 201(g) [now 201(c)].” 506 F.2d at 77. Emphasis added.
236 Brewster, supra at 69-70, 75-76; see also United States v. Gomez, 807 F.2d 1523, 1527 (10th Cir. 1986), payment
made to third party on direction of official so that “money could not be linked to him.”
237 500 U.S. 257 (1991).
238 Id. at 272.
239 Id. at 273.
election campaigns are financed by private contributions or expenditures, as they have been 240
from the beginning of the Nation.
In a similar vein as the bribery provision, the making of campaign contributions, either on one’s
own initiative or in response to a request from an official or the official’s campaign, with the mere
hope or expectation that one might be treated favorably in the future because of one’s generosity
and support in making such campaign contributions, does not provide the necessary quid pro quo
or corrupt character for an extortion charge:
[T]he explicitness requirement serves to distinguish between contributions that are given or
received with the “anticipation” of official action and contributions that are given or received
in exchange for a “promise” of official action. ... When a contributor and an official clearly
understand the terms of a bargain to exchange official action for money, they have moved 241
beyond “anticipation” and into an arrangement that the Hobbs Act forbids.
It is not explicitly clear from case law whether a conspiracy to defraud the government would
exist if the “nexus” or connection between campaign contributions and the intervention activity
by a Member of Congress does not also rise to or satisfy the elements of a “bribe” (18 U.S.C.
§201(b)), an “extortion” (18 U.S.C. § 1951(b)(2)), an “illegal gratuity” (18 U.S.C. §201(c)), or
“compensation” for services rendered before an agency (18 U.S.C. §203(a)). However, if the
connection or linkage could be shown to be such that the campaign donations were in fact the
“inducement,” “reward,” “motivation” or “reason” for the intervention on behalf of such donor, it
might then be argued that the donations and inducements provided the “wrongful” or “improper”
character of the influence exerted upon a federal agency sufficient to sustain a “conspiracy”
In United States v. Johnson,242 the Supreme Court reviewed a conviction of a Member of
Congress for conflicts of interest (18 U.S.C. §203), and for conspiracy to defraud the United
States (18 U.S.C. §371) for involvement in a scheme whereby:
The two Congressmen approached the Attorney General and the Assistant Attorney general
in charge of the Criminal Division and urged them “to review” the indictment [of savings
and loan officers]. For these services Johnson received substantial sums in the form of a
“campaign contribution” and “legal fees.” The Government contended, and presumably the
jury found, that these payments were never disclosed to the Department of Justice, and that
the payments were not bona fide campaign contributions or legal fees but were made simply
to “buy” the Congressman.
The bulk of the evidence submitted as to Johnson dealt with his financial transactions
with the other conspirators, and with his activities in the Department of Justice. As to these
aspects of the substantive counts and the conspiracy count, no substantial question is before
us. 18 U.S.C. §371 has long been held to encompass not only conspiracies that might involve
loss of government funds, but also “any conspiracy for the purpose of impairing, obstructing
240 500 U.S. at 272.
241 United States v. Carpenter, 961 F.2d 824, 827 (9th Cir. 1992).
242 383 U.S. 169 (1966).
or defeating the lawful function of any department of Government.” Haas v. Henkel, 216 243
U.S. 462, 479. 383 U.S. at 172.
If there is thus found a sufficient nexus or connection between financial remuneration to one’s
campaign coffers, and an official’s actions in intervening in an administrative process and
attempting to influence an agency decision, then it might be contended, at least in theory, that the
“wrongful” nature and motivation for the influence exerted, which attempts to interfere with,
thwart or overturn the impartial, fair and due administration of the law by the agency, could
arguably raise such concerted activities by the individuals involved to the level of a “conspiracy”
to defraud the United States.
Both the House Committee on Standards of Official Conduct and the Senate Select Committee on
Ethics have warned Members and staff about the “appearances” of impropriety that may occur or
be drawn from certain “linking” of campaign contributions with offers or efforts to assist
constituents with matters before federal agencies and departments, regardless of whether such 244
conduct rises to the level of a federal criminal offense. The Senate Rules now specifically
provide 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 245
interest.” In its report on an investigation of Members’ interventions with an agency on behalf
of a particular campaign contributor, colloquially known as the “Keating Five” investigation, the
Select Committee on Ethics explained:
Because Senators occupy a position of trust, every Senator always must endeavor to
avoid 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. This does not mean,
however, that a Member or employee is required to determine if one is a contributor before 246
The House Committee on Standards of Official Conduct has similarly explained that Members
should avoid appearances of linking contributions to actions, but that this could not mean that
Members are prohibited from assisting their supporters like any other constituent, based on the
merits of the matter:
243 The conspiracy counts were ultimately dismissed on “Speech or Debate” Clause grounds because the charges were
in part connected with the motivations of Johnson making a speech favorable to the savings and loan institutions on the th
floor of the House. 383 U.S. at 185-186; note United States v. Johnson, 419 F.2d 56, 58 (4 Cir. 1970), cert. denied,
397 U.S. 1010 (1970).
244 The Senate Select Committee on Ethics found “improper conduct” of a Senator whose “office practices evidenced
an impermissible pattern of conduct by substantially linking fund raising activities and official activities.” S. Rpt. No.
102-223, supra at 20.
245 Senate Rule 43, para. 3.
246 S. Rpt. No. 102-223, supra at 12.
Because a Member’s obligations are to all constituents equally, considerations such as
political support, party affiliation, or campaign contributions should not affect either the
decision of a Member to provide assistance or the quality of help that is given. While a
Member should not discriminate in favor of political supporters, neither need he or she 247
discriminate against them.
Concerning the “appearances” in the receipt of campaign contributions from one for whom the
Member has interceded before a federal agency, the late Senator Paul Douglas in his work, Ethics
in Government, suggested caution specifically as to the receipt of such campaign contributions:
It is probably not wrong for the campaign managers of a legislator before an election to
request contributions from those for whom the legislator has done appreciable favors, but
this should never be presented as a payment for the services rendered. Moreover, the
possibility of such a contribution should never be suggested by the legislator or his staff at
the time the favor is done. Furthermore, a decent interval of time should be allowed to lapse
so that neither party will feel there is a close connection between the two acts. Finally, not
the slightest pressure should be put upon the recipients of the favors in regard to the
campaign. It should be clearly understood that any gift they make is voluntary and there will
be no question of reprisals or lack of future help by the legislator if the gift is withheld. In
other words, any contribution should not be a quid pro quo but rather a wholly voluntary
offering based upon personal friendship and belief in the effectiveness of the legislator 248
sharpened perhaps by individual experience.
Providing office management and workload systems and mechanisms whereby constituent
requests for intervention assistance are routinely and consistently evaluated on the merits of the
matter, independently of campaign contributions or support from the requesting individual or
entity, could provide protection from appearances that decisions are based on campaign support
considerations. This may involve establishing certain criteria for authorizing interventions or
assistance, including prioritizing decisions on whether or not to intervene based on such factors as
the strength of the constituent’s case, the issues of justice and equity involved, the type or level of
intervention required, consistency with regular office practices, and the importance of the
underlying issues to the district, State, or the Nation.
The Senate Select Committee on Ethics set out several possible considerations and suggestions
for offices to take into account in the case of requested interventions:
The merits of the constituent’s case.
The continuing viability of the constituent’s claim. If the constituent’s claim
initially appeared to have merit, has the Senator acted despite facts or circumstances that
later undermined the merits of that claim?
The kind of agency involved and the nature of its proceedings. Is the agency
performing in a quasi-judicial, adjudicative or enforcement function?
If the Senator or staff members knows that an individual is a contributor, the following
issues should also be considered. (If the Senator or staff member does not know if an
individual is a contributor, he or she is not required or encouraged to find out. Most Senate
247 House Ethics Manual, supra at 250.
248 Douglas, Ethics in Government, supra at 89-90.
staff members are not provided with information regarding contributions and are unaware of
whether an individual seeking assistance is a contributor.)
The amount of money contributed. Has the contributor given or raised more than an
The history of donations by a contributor. Has the constituent made contributions to
the Senator previously?
The nature and degree of the action taken by the Senator. To what extent does the
action or pattern of action deviate from that Senator’s normal conduct?
The proximity of money and action. How close in time is the Senator’s actions to 249
his or her knowledge of or receipt of the contribution(s)?
The receipt of gifts from private individuals by Members and employees of the House or Senate,
even unconnected to any specific official act, have raised ethical issues and concerns for a
number of years because of the potential for subtle influence of, dependency upon and favoritism 250
towards one’s private benefactors. Gifts to Members and employees of both Houses of
Congress are now regulated by both statute and internal House and Senate rules. Federal law
provides the basic prohibition that an officer or employee of the Federal Government may not
receive any gift from certain “prohibited sources,” that is, those doing business with, seeking
some official action from, or who are regulated by the agency or department of the official, or
those whose interests may be substantially affected by the performance or nonperformance of the 251
officer’s official governmental duties. The statute notes that each supervisory ethics office may
make rules and regulations for the receipt of gifts by the employees and officers under their 252
jurisdiction, carving out certain exceptions and circumstances. Under this provision, as well as
by virtue of Congress’ constitutional rule-making authority, each House of Congress has
promulgated detailed rules and regulations for the acceptance of gifts.
When discussing gifts, and the gifts rules, it should be noted that a “gift” may be distinguished
from more sinister rewards, remunerations, or monetary transfers. Things of value, presents,
items or tokens of appreciation received by Members and congressional staff employees may be
considered either as “gifts,” “gratuities,” “bribes” or “compensation,” depending on the intent of
the transaction and its connection to an official act. A “gift” is something of value given with the
requisite “donative” intent, that is, colloquially, without “strings attached,” and unconnected to
any reciprocal action or official act on the part of the recipient. This may include gifts of general
appreciation or “goodwill” towards an office, a Member or an employee, in gratitude for one’s
public service in general, and not connected or tied to any specific act or duty performed for the
constituent group or person. If the thing of value, however, is received personally by a
congressional staffer with the knowledge or understanding that it is given in appreciation or
gratitude, or as a reward, “for or because of” a particular official act performed or to be performed
249 S. Rpt. No. 102-223, supra at 13-14.
250 Note, for example, discussion in Douglas, Ethics in Government, at 44 (1952).
251 5 U.S.C. 7353.
252 5 U.S.C. § 7353(b).
by the staffer, then such transaction may fall within the purview of the “illegal gratuities”
provision, or be an impermissible private “compensation” for that official act. When something of
value is given or received in exchange for being influenced in the performance of an official act,
that is, where there is a “corrupt” bargain or agreement to receive something of value in return for 253
doing an official act (often called a quid pro quo), then the bribery provision is implicated.
The Rules of the House of Representatives and of the Senate provide that “gifts” from private,
outside sources may generally not be accepted by Members and staff, except when such gifts are 254
expressly permitted by the respective Rule. In addition to allowing the normal receipt and 255
exchange of gifts among relatives and personal friends, the House and Senate Rules also permit 256
the receipt of gifts of “nominal value” such as baseball caps, pens, or t-shirts, and provide a
general de minimis exception allowing staff and Members to receive gifts of under $50 in value 257
(and cumulating no more than $100 from one source in a year). Additionally, there are
numerous other explicit exceptions to the general “no gifts” rule which are of only marginal
relevance to the performance of intervention in administrative matters on behalf of 258
Although not a formal congressional rule, or an enforceable “law,” another potentially applicable
ethical “guideline” was adopted by Congress in 1958 in the “Code of Ethics for Government 259
Service,” as a concurrent resolution. That provision states:
Any person in Government service should:
5. ... never accept, for himself or his family, favors and benefits under circumstances
which might be construed by reasonable persons as influencing the performance of his
Concurrent resolutions, which are not sent to the President for his signature, are not considered a 260
form of legislation which have legal or binding effect on parties outside of Congress. Although
253 The required connection to some official act, which is part of the required criminal intent, is generally the difference
between a criminal “bribe” or “illegal gratuity” on the one hand, and a mere “gift” to a public official on the other.
United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404 (1999); United States v. Brewster, 506 F.2d th
62, 71-72 (D.C.Cir. 1974); United States v. Johnson, 621 F.2d 1073, 1076 (10 Cir. 1980); United States v. Arthur, 544 thth
F.2d 730, 734, 735 (4 Cir. 1976); United States v. Allen, 10 F.3d 405, 411 (7 Cir. 1993).
254 House Rule XXV, para. 5(a)(1)(A); Senate Rule XXXV, para. 1(a)(1).
255 House Rule XXV, para. 5(a)(3)(C) and (D); Senate Rule XXXV, para. 1(c)(3),(4).
256 House Rule XXV, para. 5(a)(3)(W); Senate Rule XXXV, para. 1(c)(23).
257 House Rule XXV, para. 5(a)(1)(B); Senate Rule XXXV, para. 1(a)(2). Only gifts of $10 or more in value will count
towards the $100 yearly limit.
258 See discussion in House Committee on Standards of Official Conduct, “Rules of the U.S. House of Representatives
on Gifts and Travel,” 106th Cong., 2d Sess. at 61 (April 2000); and at 21-62.
259 H.Con. Res. 175, 85th Cong., 2d Sess., July 11, 1958, see 72 Stat. part II, B12.
260 Riddick, Floyd M. The United States Congress, Organization and Procedure, (Washington D.C. 1943), at 21:
“Concurrent resolutions are commonly used by Congress to take a joint action, simply embodying a matter within the
limited scope of Congress, to express its intent, purpose or sense. They are not used to enact legislation and are not
a concurrent resolution might bind that Congress which adopted it,261 precedents exist which 262
suggest that a concurrent resolution technically expires at the end of that Congress. The Code
of Ethics for Government Service was expressly not intended by Congress as legislation
establishing new or different ethical standards in government, nor creating new enforceable 263
“laws,” but rather as a means of expressing existing ethical principles. However, the ethical
standards in the Code have been generally recognized as continuing guidance and principles for
both elected and appointed officials in the Government. The Rules of Procedure of the Senate
Select Committee on Ethics (revised 1999) specifically note in Part III that one of the “sources of
the subject matter jurisdiction of the Select Committee” is the “Code of Ethics for Government 264
Service.” The House of Representatives has expressly recognized the terms of the Code as
continuing ethical standards and has used the provisions of the Code of Ethics as the basis for 265
disciplinary charges and actions against Members, although the Senate has apparently never
Paragraph 5 of the Code of Ethics was intended substantially as a “gift” rule, barring the receipt
of gifts, favors and benefits from those persons and in those situations where it might be deemed 266
to affect or influence the performance of one’s official duties. As noted, this rule has never been
specifically applied in a Senate disciplinary ruling, nor interpreted in the Senate, but has been
applied to certain fact situations involving gifts and favors in the House of Representatives. There
is no specific indication whether the provision, if considered an actionable standard of conduct,
would go beyond current congressional rules on receipt of “compensation” for influence
improperly exerted, or the current “gifts” rules of the House or Senate, or apply to conduct at all
in connection with such things as lawful campaign contributions. It is possible to argue, however,
that the terms “benefit” or “favor” in the Code of Ethics could go beyond and be broader than 267
either the terms “gifts” or “compensation” in congressional rules. Under this ethical standard it
might not be required that there be any specific or provable “connection” or linkage between the
binding or of legal effect.”
261 Deschler & Brown, Procedure in the U.S.House of Representatives, Chapter 24, Section 1.3 (1982).
262 Hinds’ Precedents of the House of Representatives of the United States, Volume 5, Section 7053, pp. 1022-1023
263 “The purpose of this resolution is to set forth in a readily understood but meaningful manner basic standards of
conduct as a guide to all who are privileged to be a part of the Government Service. The word ‘guide’ is used
advisedly. The resolution creates no new law; imposes no penalties, identifies no new type of crime, and establishes no
legal restraints on anyone. It does, however, etch out a chapter of conduct against which those in public service may th
measure their own actions and upon which they may be judged by those whom they serve.” S. Rpt. No. 1812, 85
Cong., 2d Sess. (1958).
264 S. Prt. 108-21, Rules of Procedure, Select Committee on Ethics, Part III(h).
265 H.R.Rpt. No. 94-1364, 94th Cong. 2d Sess. at 3, 7-8 (1976); H.R. Rpt. No. 95-1742, 95th Cong., 2d Sess. (1978);
H.R. Rpt. No. 96-930, 96th Cong., 2d Sess. (1980); H.R. Rpt. No. 96-856, 96th Cong., 2d Sess. (1980); H.R. Rpt. No. ththstth
96-1537, 96 Cong., 2d Sess. (1980); H.R. Rpt. No. 97-110, 97 Cong., 1 Sess. (1981); H.R.Rpt. No. 100-506, 100
Cong., 2d Sess. 9 (1988); note Ethics Manual for Members, Officers, and Employees of the U.S. House of nd
Representatives, 102 Cong., 2d Sess. 18-19.
266 See 97 Congressional Record 7176-7178, June 26, 1951; H. Con. Res. 128, 82d Cong., 1st Sess.; Code of Ethics for
Government Service: Hearing on H. Con. Res. 2 and H. Con. Res. 17 Before the Committee on Post Office and Civil thnd
Service, House of Representatives, 84 Cong., 2 Sess. (1956).
267 The relevant dictionary definition of a “favor” is “effort in one’s behalf or interest” or “a special privilege or right
granted or conceded.” Webster’s Third New International Dictionary (1976).
“favor” received and any official act done, but rather the standard is apparently concerned merely 268
with “appearances of impropriety” in the receipt and acceptance of such items.
Some of the more common questions in the area of constituent service arise when a constituent,
grateful for assistance of a Member’s staff with such things as lost or missing social security
checks, veterans’ benefits that stop unexplainedly, or a myriad other problems with the federal
bureaucracy, send as a “thank you” for such help a small item purchased or made by the
constituent. The problem with the receipt of these small gifts is not the House or Senate gifts
rules, which as noted above, specifically exempt inexpensive items (anything under $50 in value),
but rather that such items are a thing “of value” that are accepted “because of” an official act
performed by the staffer, that is, inquiries, follow-ups or other intervention into administrative
matters in a federal agency. As such, these items may implicate and technically satisfy the 269
elements of the illegal gratuities clause of the bribery statute.
The illegal gratuities provision of federal law has no de minimis exception expressly provided
within the statute. Therefore, items such as boxes of candy, flowers, or home-made goods, while
often perishable and inexpensive, have some apparent value, even if only de minimis, and may
therefore still generally be considered “anything of value” as used in the federal illegal gratuities 270
provision. Such things of value, if accepted by congressional staff for themselves with the
knowledge that they are being rewarded or thanked for a particular “official act” performed (or to
be performed), may, under a close reading of the illegal gratuities clause, involve a technical
violation of that provision.
Since the statute itself has no express de minimis exception, the under-$50 exception for gifts in
the House and Senate Rules may not necessarily create an absolute “safe harbor” under the
federal criminal “illegal gratuities” law for all tokens of appreciation received under that amount
when such presents are connected to, that is, are “for or because of,” an official act. There are,
however, indications that the Department of Justice would recognize reasonable permitted
practices which are expressly provided in conduct rules and regulations of a Federal agency, and
which may include reasonable de minimis exceptions to prohibitions on the receipt by federal
officials of certain things of value from the public. In the executive branch of Government, for
example, the Office of Government Ethics has promulgated, in consultation with the Attorney 271
General, standards of conduct regulations for executive branch employees which expressly
provide for a de minimis exception to the executive branch “gift” prohibitions, for gifts of $20 or 272
less. When such rules and exceptions are followed, the regulations expressly provide that the 273
receipt of things of value will not constitute an “illegal gratuity” under 18 U.S.C. § 201(c). The
268 See, for example, H.R. Rpt. No. 100-506, supra at 9. As to the receipt of personal gifts and entertainment the House
Ethics Committee “concluded that such improper appearance supports a determination that Representative Biaggi
violated Clause 5 of the Code of Ethics for Government Service.”
269 18 U.S.C. § 201(c)(1)(B).
270 The term “anything of value” is generally interpreted broadly. H.R. Rpt. No. 748, 87th Cong., 1st Sess. 18 (1961);
United States v. Williams, 705 F.2d 603 (2d Cir. 1983), cert. denied, 464 U.S. 1007 (1983); United States v. Girard,
601 F.2d 69, 71 (2d Cir.1979), cert. denied, 444 U.S. 871 (1979).
271 Executive Order 12674, Section 201 (April 12, 1989), as modified by E.O. 12731.
272 5 C.F.R. § 2635.204(a).
273 5 C.F.R. § 2635.202(b). This applies to unsolicited gifts, when not received “in return for being influenced” in the
examples presented by the Office of Government Ethics indicate that this “safe harbor” extends
even to de minimis things of value (other than cash or securities) given in appreciation or
gratitude for an act within the scope of one’s official duties, such as for example, when an
employee of the Defense Mapping Agency is invited by a private organization “to speak about his
agency’s role in the evolution of missile technology,” and receives a token of appreciation from 274
such group for that presentation.
Similarly, the House Committee on Standards of Official Conduct has explained that although
they are not responsible for the enforcement of the criminal illegal gratuities law, they consider
such inexpensive tokens of appreciation in the form of perishable items from constituents to be
outside of the “illegal gratuities” law when such items are physically placed in the office to be 275
shared with staff and office visitors. The Committee stated:
While responsibility for enforcing this statute rests with the Justice Department, in the
view of this Committee, these provisions do not extend to token gifts of appreciation or
goodwill, intended as a courtesy, and consisting of either:
– perishable items (e.g., candy or flowers) that the Member or employee shares with
staff and constituents or donates to charity, or
– decorative items that are displayed in the office or donated to charity.276
The Senate Select Committee on Ethics has given similar advice with respect to perishable items 277
and the gifts rule.
There is now a congressional rule, similar in both the House and the Senate, that expressly
prohibits staff employees who are required to file annual personal financial disclosure reports
from participating in an agency intervention into any nonlegislative matter affecting a non-278
governmental person or entity in which that employee has a significant financial interest. This
restriction can be waived in writing by the employing Member of Congress when the staff
employee’s participation is deemed necessary.
Even without this express prohibition, and even though the prohibition does not apply expressly
to Members of Congress, all Members and employees are under similar ethical rules and
guidelines which establish what might be considered a general “conflict of interest” rule or
performance of an official act.
274 5 C.F.R. § 2635.204, Example 2. The employee may accept a gift of a framed map with a market value of $18, or a
book with a market value of $15 (but not both), given in appreciation for his presentation dealing with official agency
275 It is possible that employing such items for office use transforms “personal” gifts into ones with, arguably, quasi-
276 House Committee on Standards of Official Conduct, “Rules of the U.S. House of Representatives on Gifts and
Travel,” 106th Cong., 2d Sess. at 61 (April 2000).
277 Senate Ethics Manual, supra at 27.
278 House Rule XXIII, para.12; Senate Rule XXXVII, para. 10.
principle. Specifically, a Member or staff employee is instructed not to allow benefits or
compensation to accrue to himself or herself, or to his or her beneficial interest, “by virtue of 279
influence improperly exerted from his position in Congress.”
This rule would appear to require the showing of some degree of connection or “linkage”
between “compensation” or financial rewards, on the one hand, and the exertion of influence by a
Member or employee, on the other hand. In the Senate, although the rule expressly covers only
the receipt of “compensation” for influence “improperly” exerted, the provision as adopted by the
Senate was not intended to be read in a narrow legalistic manner, but rather “should be read as a
broad prohibition against Members, officers and employees deriving financial benefit, directly or 280
indirectly, from the use of their official position.” As instructed by the Senate Report on this
measure, although the receipt of “compensation” for certain official duties, such as intervention
before an agency, may be “also covered by the Federal bribery statute 18 U.S.C. §§201, 203,” the 281
Senate Rule “should be read to cover situations not covered by the bribery statute.” The Senate
Select Committee on Ethics found that a Senator’s offer “to use his official influence to obtain
government contracts for a business venture in which he had a personal financial interest” was a 282
violation of this provision of Senate Rule 37.
As noted, the provision prohibits influence “improperly” exerted in connection with the receipt of
such compensation. It does not appear, however, that the rule was intended to be limited only to
influence which would, standing alone, be considered “improper” or “undue” even without regard
to the compensation received in connection with that influence; nor does the Rule appear to
require, either in the House or the Senate, further evidence that the means of the influence
consisted of undue pressure, threats or coercion of agency officials, beyond mere intervention, if
the end result or motive was improper. As stated in the Senate Report on the measure:
For example, if a Senator or Senate employee intervened with an executive agency for the
purpose of influencing a decision which would result in measurable personal financial gain 283
to him, the provisions of this paragraph would be violated.
The Rule in the Senate was patterned after and is substantially identical to the Rule of the House 284
of Representatives, House Rule 43(3). The House Rule was adopted in 1968 as part of the Code 285
of Official Conduct, and was at that time seen substantially as a measure to deal with the
difficult “conflict of interest” issue, that is, a rule establishing a “standard seeking to prevent 286
conflicts of interest [which] would be reasonably meaningful and to some degree enforceable.”
The rule is concerned with the potentially improper use of official influence or of one’s office to
benefit “personal economic interests” or financial holdings in derogation of a public official’s 287
duty to the general interests of one’s constituents.
279 House Rule XXIII, para. 3; Senate Rule XXXVII, para. 1.
280 S.Rpt. No. 95-49, 95th Cong., 1st Sess. (to accompany S.Res. 110), at 41 (1977).
281 Id. at 41.
282 Senate Ethics Manual, supra at 59, citing S. Rpt. No. 97-187, 97th Cong., 1st Sess. 7 (1981).
283 Senate Rpt. No. 95-49, supra at 41.
284 Senate Rpt. No. 95-49, supra at 40.
285 H.Res. 1099, 90th Cong., H.R. Rpt. No. 1176, 90th Cong., 2d Sess. (1968).
286 H.R. Rpt. No. 1176, supra at 18.
287 Id at 18-19.
In 1987 the House Committee on Standards of Official Conduct conducted an investigation into
the activities of then Representative Fernand J. St Germain concerning several allegations relating
to his interests in financial institutions, including an allegation that he:
improperly exerted influence for his personal benefit, as Chairman of the House Committee
on Banking, Finance and Urban Affairs, on the Federal Home Loan Bank Board (Bank
Board) in an effort to achieve and expedite conversion of Florida Federal to a stock
association and Florida Federal’s acquisition of First Mutual Savings Association of 288
Pensacola, Florida (First Mutual).
Such allegations arguably implicated a potential violation of House Rule 43(3). The Committee,
however, could not find evidence which showed that the Member “had an improper motive” for
the agency intervention. Even though the actual intervention and influence exerted may not in
itself have been “undue,” “excessive,” or “improper,” the implication of the Committee’s decision
was that the Committee would apparently have found “improper influence” or “improper action”
if it could have proven an “improper motive” for the intervention. The Committee reported its
The investigation established that, in 1983, while Representative St Germain was
chairman of the Committee on Banking, Finance and Urban Affairs, which had regulatory
oversight of federally insured savings and loan institutes and the Federal Home Loan Bank
Board (Bank Board), Paul Nelson, a Banking Committee staff member, made telephone
calls, apparently on behalf of the congressman, to Richard Pratt, then chairman of the Bank
Board. Mr. Nelson’s stated purpose for the calls was to check on the status of the Bank
Board’s deliberations regarding Florida Federal Savings & Loan’s application to convert
from a mutual to a stock ownership financial institution.
There is no evidence (or claim by the congressman) supporting a contention that Mr.
Nelson’s calls had a “constituency basis”....
* * *
There is circumstantial evidence that the purpose of the calls might have been to
expedite the Bank Board’s processing of the conversion application in an effort to obtain
approval during a particular time frame. While there is no evidence that any such effort was
successful or otherwise influenced the ultimate agency disposition - the Bank Board’s
approval - the calls were made during a time when Representative St Germain was a
depositor at Florida Federal. He stood to derive personal economic benefit from the
ownership interest such deposit gave him. His ownership interest gave him the option to
purchase shares immediately upon conversion. One could speculate that a motive for him
seeking expedited conversion would be that it could give him the opportunity to purchase
stock at a bargain price relative to the after-market for the stock. Conversions to stock
institutions had resulted in substantial price increases after the initial offering in the then
recent past. However, the Committee firmly believes that speculation about motive is not
evidence. And, there is no direct evidence that the congressman had any such improper
motive or for that matter, caused Mr. Nelson to make the calls.
In mid-1983, the congressman did purchase $30,000 worth of Florida Federal stock
upon conversion. He failed to report this as a “transaction” in his 1983 Financial Disclosure
288 H.R.Rpt. No. 100-46, 100th Cong. 1st Sess. at 2 (1987).
In light of the above, the Committee believes it would be inappropriate to attribute
improper action to an individual based solely on inferences and speculation and, thus, does
not reach this conclusion. Nevertheless, the Committee would admonish all Members to 289
avoid situations in which even an inference might be drawn suggesting improper action.
It is possible that a concealed personal financial interest in a matter about which a Member or
staff employee makes an intervention with a federal agency could provide the grounds for a
finding that such contact and conduct created a fraud against the United States. In United States v. 290
Gallup, for example, an employee of the Department of Housing and Urban Development was
charged with conspiracy to defraud the United States in influencing the granting of a contract in
which he had an undisclosed financial interest, in violation of HUD conflict of interest
regulations. The conspiracy count upheld in that case charged that the defendant and his brother-
in-law, with whom he shared a “finder’s fee” for that contract, had conspired and agreed:
[T]o defraud the United States department of Housing and Urban Development of and
concerning its governmental and contractual functions and rights, that is, of and concerning
the right of the United States Department of Housing and Urban Development to have its
development contracts with local housing authorities performed in accordance with the laws
of the United States, HUD rules and regulations and the provisions of said contract, and in
honest and impartial manner, free from deceit, corruption, misconduct, fraud, improper 291
influence and conflict of interest.
Advisory Opinion No. 1 from the House Committee on Standards of Official Conduct, and Senate
Rule XXXVII on interventions and constituent service, while recognizing a Member’s legitimate
role in intervening in administrative matters, provides that certain conduct could render the means
of a Member’s intervention activity “improper,” or an “abuse” of the representational role of a
Member, regardless of the issue of the receipt or existence of any compensation or financial
benefits connected to one’s intervention. Such problematic conduct may concern such things as
threats made against administrators, or promises of favors or benefits to such agency personnel.
The guidelines adopted or recognized by either House of Congress with regard to such “conduct”
during interventions are more general ethical considerations and guidelines of propriety
concerning a legislator’s “proper” or “improper” conduct towards regulators and respect for the
“due process” of the administration of the law.
Many of the general ethical considerations involved in the guidelines on conduct of a Member or
his or staff in intervention in administrative matters were explored in the 1950’s by Senator Paul
Douglas of Illinois. A Subcommittee of the Senate Labor and Public Welfare Committee, chaired
by the late Senator Douglas, issued a committee print in 1951 entitled Ethical Standards in 292
Government, which made a number of recommendations and proposals in the area of
governmental ethics. In discussing what was then called the “problem of reference,” which the
subcommittee recognized as an important function of a Member of Congress, the subcommittee
289 H.R.Rpt. No. 100-46, supra at 42-43.
290 812 F.2d 1271 (10th Cir. 1987).
291 812 F.2d at 1275.
292 S. Comm. Print, “Ethical Standards in Government,” Report of a Subcommittee of the Committee on Labor and
Public Welfare, 82d Cong., 1st Sess. (1951).
discussed the ethical considerations and standards which might apply to congressional
intervention in administrative matters. The Subcommittee concluded that it is ethically
permissible to recommend specific action on an administrative agency matter, and even to argue
“at length” for such result, as long as the matter is argued on its merits and the means used in the
intervention are not themselves “inherently damaging” to the administrative process:
There are a number of ways in which the legislator may proceed in raising these matters.
He may simply introduce the constituent and ask for fair consideration. If he wishes to be
very correct, he will also state that he is asking for nothing more than fair consideration on
the merits of the case. A second procedure is to vouch for the applicant in some way; this
amounts to a recommendation for the constituent, although not necessarily of his request.
The third step is to recommend that favorable action be taken on the matter at issue. This
may be done indirectly as well as directly, and may be simply stated or argued at length with
supporting data and explanations. It is this third procedure which gives rise to ethical
* * *
Legislators have at least two moral obligations in these matters of reference. One is to
make sure that they are seeking to push cases only on their merits. It is always possible to
make sure that there is no personal economic interest which is involved. But it is more
difficult for a legislator to draw the line between proper and improper personal interests
which are essentially political in character. That is, a legislator who is seeking support in a
pending election (and elections are always pending) may feel that the noble objective of
reelecting a stout defender of the public interests may justify his guiding the hand of justice
just a little in a relatively minor matter.
A second moral obligation is to make sure that the methods of intervening in
administrative matters are not themselves so inherently damaging to the administrative
process or to legislative-administrative relations that they offset any public benefit that might 293
be gained from any such legislative pressure.
Senator Douglas in his later work and collection of lectures entitled Ethics in Government
expressed general ethical principles in relation to congressional intervention into administrative
matters which he propounded with the caveat that: “Probably there can be no fixed set of rules
governing the relationships between legislators and administrators which will be perfectly
satisfactory in all respects.” The ethical principles which Senator Douglas submitted “for
consideration” included the following:
(1) A legislator should not immediately conclude that his constituent is always right and the
administrator is always wrong, but as far as possible should try to find out the merits of each
case and only make such representations as the situation permits.
(2) A legislator should, of course, not accept any money for representing constituents or
anyone else before government departments.... If a legislator accepts money, entertainment,
or valuable presents in return for his services, he is using his public office in reality not for
the common good but for private gain.
293 Ethical Standards in Government, Committee Print, Senate Labor Committee, Special Subcommittee on the
Establishment of a Commission on Ethics in Government, 82 Cong., 1st Sess. 29-30 (1951).
(3) In representing individual interests before administrative bodies, the legislator should be
courteous and know the merits of the case; he should not try to bully or intimidate the 294
officials involved and he should make it clear that the final decision is in their hands.
The ethical guidelines expressed by the House Committee on Standards of Official Conduct in
Advisory Opinion No. 1, and as suggested for consideration by the late Senator Douglas, came
into play in the investigation of the former Speaker of the House, Representative James C.
Wright. One of the charges investigated by the Committee and its special counsel concerned the
“possible exercise of undue influence in dealing with officials of the Federal Home Loan Bank 295
Board.” Although there were several incidents of intervention and contacts between Speaker
Wright and members of the Bank Board, and although certain Bank Board members such as 296
Edwin Gray felt that the Speaker “attempted to coerce them,” the House Committee on
Standards of Official Conduct did not find reason to believe that the Speaker exercised undue 297
influence over the Board, as there was no evidence of “a reprisal or threat to agency officials.”
The Special Counsel’s Report in the Wright matter argued that “undue influence” could be
evidenced by either the “exercise of influence for improper ends or by the use of improper 298
means.” The first intervention examined concerned a meeting in Congressman Wright’s office
between Edwin Gray, then Bank Board Chairman, several Bank Board staff and four Members of
Congress from Texas, including Representative Wright. The substance of the meeting was that the
Members of Congress had heard of reports that Bank Board regulators were using “heavy
handed” and “Gestapo-like” tactics against certain savings and loan banks in Texas, and the
Members present expressed and “passed their concerns on” to the Bank Board members. They
emphasized the poor economic conditions in Texas, and their belief that such conditions were
only temporary. Representative Wright had left the meeting early, and the other Congressmen
stayed. The Special Counsel found that the meeting between the Congressmen and the Bank 299
Board staff “represented a proper interaction.”
The second intervention and contact concerned inquiries and statements by Representative Wright
to Edwin Gray about an individual (Hall) and his financial institution, and the conduct of a
representative of the Bank Board who the Speaker felt was not “as flexible or understanding” as
he should be. The Speaker asked Chairman Gray “if there wasn’t anything I [Gray] could do 300
about this.” Gray testified that Representative Wright “did not threaten him or use coercive
terms,” but that because of the Member’s position, Gray felt that he had to do something, and 301
believed that the Congressman “wanted the Bank Board to change its position regarding Hall.”
It further appears that Representative Wright may later have held up a recapitalization bill
294 Ethics in Government, supra at 88, 89, 90.
295 Committee Resolution of Preliminary Inquiry, June 9, 1988.
296 Report of Special Counsel In the Matter of Speaker James C. Wright, Jr., House Committee on Standards of Official
Conduct, 101st Congress, February 21, 1989 [hereinafter Special Counsel Report] at 216.
297 Statement of the Committee on Standards of Official Conduct in the Matter of Representative James C. Wright, Jr.,
April 13, 1989 [Committee Statement], at 84.
298 Special Counsel Report, supra at 193.
299 Id. at 218.
300 Id. at 225.
301 Id. at 225-226.
affecting the Bank Board “to show his displeasure with the Bank Board’s treatment of Hall 302
specifically and of Texas savings and loans in general.” Although the Special Counsel argued
that these actions may have constituted improper activity because no merits of the case were
argued in asking for reconsideration of an agency decision, and because of the alleged use of
holding legislation “hostage” to express the Member’s displeasure, the House Committee on
Standards of Official Conduct, as noted above, did not issue even a “statement of alleged
violations” because of such activity, and thus dropped all charges of undue influence concerning
Other activities and interventions included: “intercession on behalf of a constituent who
expressed a complaint” about the Bank Board, and the Congressman’s expression to the Board for 303
his hope for “improved” regulatory conditions; complaints from the Congressman to Edwin
Gray that a friend and political fundraiser had been “mistreated” by Bank Board regulators, that
Gray needed to meet with his friend personally to hear his story, and that because of Speaker
Wright’s power, Gray decided to appoint an independent counsel to investigate the constituent’s 304
treatment by the Bank Board; that in expressing complaints to then Chairman Gray about over-
zealous regulators, the Congressman said that he had heard that certain regulators were
homosexuals and had “established a ring of homosexual lawyers” in Texas, and that the Member 305
asked if Chairman Gray could “get rid of” one regulator in particular; Representative Wright’s
intervention directly with the Chairman Gray to ask for a delay in a closing of a thrift institution 306
in Texas, and asking Gray to report back; a meeting initiated by Bank Board personnel, and an
alleged indirect request from Representative Wright to have another Bank Board litigator
The House Committee on Standards of Official Conduct, examining the activity of Speaker
Wright concerning all of these interventions and contacts, found no undue influence or abuse of
his official influence or position in his expressions of interest in agency regulatory matters. The
Committee believed that some of the Congressman’s conduct may have been “intemperate,” but
that displeasure with the personality and techniques of a Member in his expressions of interest in
a matter to an executive agency can not be used to interfere with or override the important duty of
a Member to “effectively represent persons and organizations having concern with the activities 307
of executive agencies.” Specifically, in dismissing these charges against Speaker Wright, the
It is clear that under our constitutional form of government there is a constant tension
between the legislative and executive branches regarding the desires of legislators on the one
hand and the actions of agencies on the other in carrying out their respective responsibilities.
302 Id. at 235.
303 Special Counsel’s Report, supra at 240.
304 Id. at 240-255. The Special Counsel argued that this intervention was improper because the Congressman sought “to
influence the Bank Board to change its legitimate administrative responses,” and that although the methods appeared
proper, he was intending “an impermissible purpose.” Id. at 254-255. The Committee did not agree that the intervention
was improper, and no charges were sustained by the Committee concerning any interventions.
305 Id. at 255-259. Special Counsel argued for violation of House Rules because of this conduct. Id. at 258-259. The
Committee did not agree and no charges were sustained by the Committee concerning any interventions or agency
306 Id. at 264-269. The Special Counsel did not find anything improper in this request in asking “for a brief delay in an
administrative response” rather than a “change in the response.” Id. at 269.
307 Committee Statement, supra at 84.
The assertion that the exercise of undue influence can arise based upon a legislator’s
expressions of interest jeopardizes the ability of Members effectively to represent persons
and organizations having concern with the activities of executive agencies.
Accordingly, while it may well be that Representative Wright was intemperate in his
dealings with representatives of the Federal Home Loan Bank Board, the Committee is not
persuaded that there is reason to believe that he exercised undue influence in dealing with
that agency. In sum, such a finding cannot rest on pure inference or circumstance or, for that
matter, on the technique and personality of the legislator, but, instead, must be based on 308
probative evidence that a reprisal or threat to agency officials was made.
Members of Congress are often asked by constituents to provide a reference, referral or
recommendation for employment in the Federal Government. There is no current statutory
prohibition on Members of Congress providing a recommendation or referral letter for an
applicant for a federal position; however, hiring officials in the Federal Government are expressly
instructed by law only to receive and consider such “recommendations” from a Member as to the
“character or residence” of the applicant. Additionally, hiring officials may consider and receive
“statements” based on a Member’s personal knowledge or records, which evaluate such things as
an applicant’s work performance, ability, aptitude, qualifications and suitability.
The statute on federal personnel recommendations is a fairly long-standing provision which had
been changed for a period of a few years, where congressional recommendations had actually rd309
been prohibited as part of the so-called “Hatch Act” revisions enacted in the 103 Congress.
These amendments, which were passed in 1993 and went into effect in February of 1994, had
expressly prohibited a Member of Congress from making a recommendation on behalf of an
applicant for federal employment to most positions in the Federal Government on any basis,
including the basis of one’s political affiliation, except that a Member may have provided a
“statement” which “relates solely to the character and residence of the employee or applicant.”
Additionally, the amended statute had prohibited an applicant or an employee from seeking or
requesting from a Member of Congress or from a congressional employee any recommendation
for employment or other personnel action, other than the character reference described above.
However, in 1996 Congress amended the prohibitions on referrals and recommendations which
had been in effect since 1994, and returned the state of the law to that which it was prior to those 310
1994-effective changes. The current statutory language is identical to the language of the law
prior to the now-repealed 1994 changes:
5 U.S.C. § 3303. An individual concerned in examining an applicant for or appointing him in
the competitive service may not receive or consider a recommendation of the applicant by a
Senator or Representative, except as to the character or residence of the applicant.
308 Committee Statement, at 84.
309 P.L. 103-94, October 6, 1993; see 107 Stat. 1001, 1006.
310 Legislative Branch Appropriations Act for Fiscal 1997, P.L. 104-197, Section 315, 110 Stat. 2416 (1996).
The current provisions of the law prohibit officials in the executive branch from receiving and
considering any recommendations from a Member of Congress of an applicant for a federal
position in the competitive service except as to the character and/or residency of the applicant, but
do not expressly prohibit a Member of Congress from making such recommendations on any
basis. This language has in the past been interpreted as actually anticipating that such referrals
and recommendations will be made, and as indicating that Members are not necessarily 311
prohibited from taking such action on behalf of applicants. Current federal law continues to
protect against potential political abuses in civil service hiring by prohibiting the consideration of
political factors by appointing officials in referrals from Members, the general prohibition for
anyone in the federal service to consider in recommendations or statements factors other than 312
those that evaluate work performance, ability, qualifications and suitability, and the express 313
prohibition on discriminating in employment matters on the basis of “political affiliation.”
Considering the statutory restraints on referrals, the rules against the consideration of factors
other than evaluation of work performance and suitability, and the prohibitions on political
influence in federal hiring, the House Committee on Standards of Official Conduct has advised
that with respect to competitive service employments:
If the Member does not have personal knowledge of the applicant’s work ability or
performance, the letter of recommendation may address only the applicant’s character or 314
Furthermore, the Committee notes that if a Member does not have personal knowledge of the
applicant’s work ability or performance, either through that constituent’s work for or with the
Member’s office, then such “recommendation” for the competitive civil service should not be on 315
official congressional letterhead stationery, but rather on the Member’s personal stationery.
With regard to letters of recommendations concerning positions in the competitive service the
Senate Select Committee on Ethics has advised its Members that:
...Members are now free to write a letter on behalf of or relating to a persons who is applying
or under consideration for a position, or who is up for a promotion in the Executive Branch,
and may include any information bearing on the suitability of the person for the position.
However, Executive Branch employees may only be able to take such a letter (whether in the
form of a recommendation or statement) into consideration if it is based on the Member’s
311 United States Civil Service Commission, “A Report on Alleged Influence in Personnel Actions at the General
Services Administration” (September 1973), reprinted in 1 Subcommittee on Manpower and Civil Service, House rd
Committee on Post Office and Civil Service, Comm. Print 93-22, 93 Cong., 2d Sess. 13 (1974). See also H. R. Rpt. thth
No. 104-282, 104 Cong., 2d Sess. (1996); S.Rept. 104-323, 104 Congress, 2d Session (1996), reporting H.R. 3754, th
312 5 U.S.C. § 2302(b)(2).
313 5 U.S.C. § 2302(b)(1)(E). See also “Civil Service Rules,” 5 U.S.C. § 3301, note, § 4.2.
314 House Committee on Standards of Official Conduct, Memorandum, “Employment Recommendations,” October 1,
315 Id.: “Whether a particular letter of recommendation may be considered official business, and may therefore be
written on official letterhead, depends on whether the proposed letter may be mailed using the frank under the
regulations of the Franking Commission.... According to Franking Commission regulations, Members may use the
frank to mail letters of recommendation for the following: 1) an applicant seeking admission to a military academy; 2)
an applicant seeking a political appointment to a federal or State government position; or 3) an applicant who is a
current employee, was a former employee, or has worked with the Member in an official capacity and the letter relates
to the duties performed by the applicant.
personal knowledge or records, or if the recommendation is limited to the applicant’s 316
character and residence.”
In addition to the permissibility of statements and recommendations for competitive service
positions which are made on the basis of a Member’s personal knowledge or records of the
constituent’s work, Member recommendations may also be made generally for “political”
positions in the federal or State governments, and with respect to appointments to the military
academies. However, recommendations are expressly prohibited by statute with respect to 317
employment in the United States Postal Service.
Individual Government contracts are let according to federal acquisition rules and guidelines,
generally on a competitive basis, and while there is certainly some discretion to be exercised in
some cases, Government contracts are not to be awarded on the basis of political or personal
influence or pressure from a Member of Congress or other Government officer. A contract with
the United States Government is intended to be let with terms that are the most favorable to the
United States, that is, contract terms which favor the general public interest in terms of overall 318
value and performance. Price and overall cost to the Government are generally the principle 319
considerations in all Government contacting.
Contracts may not be awarded on the basis of personal or political favoritism, and all potential
contractors should be treated “with complete impartiality and with preferential treatment for 320
none.” General ethical standards in the executive branch similarly note that an executive
official is to “act impartially and not give preferential treatment to any private organization or 321
individual.” Depending on the nature of communications, therefore, the intervention of a
congressional office in a procurement procedure to attempt to “influence” the letting of a contract
by a federal agency based on terms or factors other than those which the agency may properly
consider may involve conduct contrary to proper federal contracting principles and
administration, as well as general ethical precepts.
If a Member of Congress does wish to communicate with an agency on behalf of a business or
individual in his or her district or State, it is sometimes the practice to provide a letter of
introduction for the constituent business entity or individual, to ask for fair and prompt
consideration in the award of the contract or contracts, to request to be kept informed of the
process and, if the Member or the Member’s staff knows or has experience with the individuals
316 Senate Ethics Manual, supra at 187, citing “Dear Colleague” letter of May 1, 1997.
317 39 U.S.C. § 1002.
318 Federal Acquisition Regulations [FAR], 48 C.F.R. § 1.102(a).
319 In the “simplified procurement process” contract officers are to “obtain supplies and services from the source whose
offer is the most advantageous to the Government” (FAR, 48 C.F.R. § 13.104); in a “sealed bid” process the contract is
to be made with a responsible bidder whose bid is “most advantageous to the Government, considering only price and
the price-related factors” (48 C.F.R. § 14-.408-1(a)); and in contracting by negotiation “cost or price” plays a
“dominant role” in source selection, but other “tradeoff” factors, such as the risk of unsuccessful contract performance,
may properly be weighed to determine “the best interest of the Government” in a contract. 48 C.F.R. §§ 15.101,
15.101-1, 15.101-2, 15-304.
320 FAR, 48 C.F.R. §§ 1.102-2(c)(3), 3.101: “Government business shall be conducted in a manner above reproach and,
except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none.”
321 Executive Order 12674, April 12, 1989, §101(h); see 5 C.F.R. § 2635.101(b)(8).
involved in the business personally, the office may also choose to vouch for the character and 322
reputation of the business in the community. In some cases it may be appropriate to arrange for
interviews or appointments with officials of a federal agency. House and Senate guidance indicate
that all of these activities should be based primarily on the concept of the “overall public
interest,” treating similarly-situated constituents equally, and undertaking such actions 323
irrespective of political contributions or other political considerations. In communicating with
agencies and advocating a position and outcome, Members and staff are advised to address only
the merits of a matter, and as in all communications, the office may not use the “[d]irect or
implied suggestion of either favoritism or reprisal ... [for] action taken by the agency 324
contacted.” Members are advised to assure that representations made on their behalf “are 325
accurate and conform to the Member’s instructions....”
Members’ offices are strongly cautioned by the ethics committees in both the House and Senate
regarding any informal interventions into or communications to a court with respect to the merits 326
of matters in the judicial process. As a general matter, the separation of powers concept dictates
that the authority over resolution of individual legal cases and challenges resides within the 327
judicial branch of Government, and not the legislative branch. Furthermore, it is intended under
our system of Government that this judicial branch be composed of an “independent” judiciary
which will, in consideration of basic notions of due process and fairness, make decisions on the
facts before it grounded in the rule of law and/or equity, and not based upon political pressures,
partisan considerations or personal influences of those wielding authority in other branches of 328
More specifically, there are provisions of law and rule which limit, restrict and prohibit the
receipt of ex parte communications by a decision maker in an adjudicatory process, and efforts to
circumvent such rules may place a judge or magistrate in an uncompromising ethical position,
and thus prove counterproductive to one’s objective. The general ethical standards of conduct for
judges prohibit them from receiving or considering any ex parte communications on a pending
matter, that is, off-the-record or other informal communications from persons who are not parties
to the legal proceeding in question. The American Bar Association’s Model Code of Judicial
Conduct, in a provision which has been adopted by the Judicial Conference of the United States
for federal judges, provides at Canon 3 that: “A judge should ... , except as authorized by law,
322 Oral contacts to agencies may be logged by the agency, and written communications made part of the administrative
record of the contract procedure.
323 House Committee on Standards of Official Conduct, Advisory Opinion No. 1, supra; Senate Rule XLIII.
324 House Committee on Standards of Official Conduct, Advisory Opinion No. 1, supra.
325 Id.; and Senate Rule XLIII(4). Note ex parte communications rules under the Administrative Procedures Act for
certain formal agency proceeding and all adjudications. 5 U.S.C. § 557(d).
326 House Committee on Standards of Official Conduct, Ethics Manual, supra at 253-254 (1993); Senate Select
Committee on Ethics, Senate Ethics Manual, at 178 (2003).
327 United States Constitution, Article III, Section 1.
328 Note, Hamilton, The Federalist Papers, No. 78, regarding the necessity of the “complete independence of the courts
of justice,” and agreeing with Montesquieu that “there is no liberty if the power of judging be not separated from the
legislative and executive powers.” The Supreme Court has noted: “A Judiciary free from control by the Executive and
the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination
by other branches of government.” United States v. Will, 449 U.S. 200, 217-218 (1980).
neither initiate nor consider ex parte or other communications concerning a pending or impending 329
proceeding.” Similar ethical obligations concerning the making or the receipt of ex parte
communications attach to administrative law judges or other administrative personnel in
adjudicatory matters before federal agencies, under the provisions of the Administrative 330
Certain requests may, of course, be made from Members of Congress and Members’ offices to the
judiciary, including seeking from a clerk of the court information on the status of a judicial
matter, and the request for information on the public docket. Furthermore, while informal
attempts at persuasion or influence of a court or over a judge are not deemed proper, it is
acceptable for a Member of Congress who feels strongly about a legal matter, such as when the
outcome of the matter may affect large numbers of his or her constituents or otherwise impact his
or her State or district, to seek to formally intervene in a legal proceeding as a party, or to file a 331
brief amicus curiae (friend of the court) in a matter on appeal.
The Senate Select Committee on Ethics specifically advises as follows:
The general advice of the Ethics Committee concerning pending court actions is that
Senate offices should refrain from intervening in such legal actions (unless the office
becomes a party to the suit, or seeks leave of the 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 332
system should be allowed to function without interference from outside sources.
Similarly, the House Committee on Standards of Official Conduct explains:
Where a Member believes it necessary to attempt to affect the outcome in a pending
case, he or she has a variety of options. A Member who has relevant information could
provide it to a party’s counsel, who could then file it with the court and notify all parties.
Alternatively, the Member could seek to file an amicus curiae, or friend of the court brief.
Yet another option, in an appropriate case, might be to seek to intervene as a formal party to
the proceeding. A Member could also make a speech on the House floor or place a statement
in the Congressional Record as to the legislative intent behind the law. A Member should
refrain, however, from making an off-the-record communication to the presiding judge, as it
could cause the judge to recuse him- or herself from further consideration of the case.
Where a Member does have personal knowledge about a matter or a party to a
proceeding, the Member may convey that information to the court through regular channels
in the proceeding (e.g., by submitting answers to interrogatories, being deposed, or testifying
in court). Members and employees should also be aware that special procedures are to be
329 Code of Conduct for United States Judges, Judicial Conference of the United States, Canon 3,A(4) (1992).
330 5 U.S.C. § 557(d). See discussion of formal interventions and adjudications in Part II of this report.
331 As noted earlier, no private compensation or thing of value may be received by a Member for professional services
rendered in relation to any legal matter, nor may staff be privately compensated for acting as attorneys or agents for
private parties in matters in which the United States is interested or is a party before courts or federal agencies. 5
U.S.C. app. § 502 (earned income limitations for professional services), 18 U.S.C. §§ 201, 203, 204, and 205 (criminal
conflict of interest and ethics provisions).
332 Senate Ethics Manual, supra at 178.
followed whenever they receive a subpoena seeking information relating to official 333
Contacting regulatory and administrative agencies or intervening into administrative matters by a
Member of Congress on behalf of constituents and others with interests affecting the Member’s
district or State, is considered an important discretionary function of an elected representative for
those whom he or she represents. It has become a fairly traditional role for Members of Congress
to express concern for, and to sometimes act as a “liaison” or spokesman for their constituents to
the unelected, and arguably less responsive, bureaucracy of the Federal Government. In the
process of such intervention it is expected that some “tension” between the desires of legislators
and those in the executive branch will naturally exist in our constitutional form of government.
While it may be a common, discretionary practice for a Member to intervene with or contact an
agency for a constituent there may, similar to any other official acts of Members, be several
ethical issues that arise in such interventions. In the first instance, it is important to assure that
nothing of value from a private source is received in connection with, in return for, because of, or
as compensation for the Member’s or the office’s intervention. Campaign contributions are of a
particular concern in this area. Although outright “bribes” or “extortion” in relation to the receipt
of campaign contributions and official interventions would require specific factual evidence of
corruption and would cover only the most blatant forms of misconduct, there are other, more
common and subtle ethical concerns concerning such contributions. Members have been advised
to avoid any indications of a connection or “linkage” between donations or solicitations of
campaign funds to or for the Member, and the assistance provided by that Member.
In light of the guidance, opinions and rules in the House and Senate on administrative
intervention and campaign funds, Members may be advised to institute office practices and
procedures which assure that requests for intervention are handled and evaluated in a
substantially similar manner for all constituents, and that decisions whether to act on any
particular request are made on the merits of the matter. The strength of the constituent’s position
and case, the principles of fairness or justice that may be involved in the matter, the overall public
interest in the matter, the consistency with past practices of the office, and the consideration of the
type of administrative proceeding involved and the type of intervention that would be necessary,
are all factors that may be involved in decisions on whether to intervene or not. In no event
should decisions be based on whether or not a constituent or other private petitioner has
contributed to or assisted the Member’s campaign; and merely because one has contributed to the
Member’s campaign does not disqualify that person from representation by the Member.
Members and staff should also be aware that there is no personal financial interest in the subject
matter of the intervention. As far as staff are concerned, recusals or written waivers may be
pursued in those instances.
333 Ethics Manual for Members, Officers, and Employees of the U.S. House of Representatives, supra at 253-254. The
procedures concerning subpoenas of Members or employees are set out in current House Rule VIII, and provide for
notification of the House, through the Speaker, and determinations to be made concerning the relevancy and materiality
of the officially related information requested, as well as consideration of any conflicts with the privileges of the House
as an institution, or the constitutional privileges and immunities of Members in the Speech or Debate clause of the
Finally, the means and methods of intervention by Members and the Members’ offices are matters
of ethical standards and guidelines expressed by the House and the Senate. The ethical
“guidance” expressed on the subject of the methods of intervention is generally directed at
assuring that a Member of Congress does not attempt to exert “undue influence” upon, and
therefore cause an unfair or unjustified governmental decision or action by, an agency through
coercive activities such as threats of reprisal against or promises of rewards for federal regulators
and administrators. This does not mean that a Member or staff may not, when appropriate,
express an opinion on a policy matter, argue a matter on the merits, or ask for consideration or
reconsideration of an action or decision based on statutory, regulatory, or legal interpretative
factors. While an office should not attempt to intimidate an administrator, it is obvious that some
administrators and regulators are more “thin skinned” than others, and a Member’s conduct will
most likely be judged not on the subjective feelings of the administrator, but on the more 334
objective conduct of the Member involved. In most of the cases of constituents asking for
assistance, a contact or intervention consisting of no more than a status inquiry, a request to be
kept informed of the process, an introduction of the constituent to the agency, and/or a request for
a fair and expeditious resolution of the issue, will be sufficient to express, and to alert the agency
of, the interest of the Member and the Member’s office in the matter.
Morton Rosenberg Jack Maskell
Specialist in American Public Law Legislative Attorney
email@example.com, 7-7480 firstname.lastname@example.org, 7-6972
334 See, for example, Ethical Standards in Government (Committee Print), supra at 29; Special Counsel’s Report in the
Wright Matter, supra at 193-226.