Ethical Considerations in Assisting Constituents With Grant requests Before Federal Agencies
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Ethical Considerations in Assisting
Constituents With Grant Requests Before
American Law Division
There is no inherent ethical problem with a Member’s office assisting constituents
and constituent organizations with the procedures and applications for Federal grants,
up to and including, if the office deems it appropriate, contacting a Federal agency to
express interest in and support of the grant application. In conducting such assistance,
three general areas of ethical considerations should be noted:
1. In prioritizing grant assistance requests, and deciding whether and at what level
assistance is to be provided, Member offices should consider generally the overall “public
interest” and the potential public benefits of the proposal or project. One factor that
should not be considered is whether or not the constituent or the organization has
supported the Member financially with campaign contributions, and no such “linkage”
should be made either internally or overtly.
2. If it is decided that a proposal has particular merit, or would be particularly
beneficial to the community, the office may contact an agency to express interest in the
proposal, and may even advocate for the grant proposal. It should be remembered,
however, that the administrative agency has the final decision on the matter, and that the
awarding of grants is generally a competitive process in which the agency decision is to
be made on the merits of the proposal and not on political considerations. It is
considered an abuse of a Member’s representational role to threaten agency officials, or
to make promises to the agency, in an effort to gain administrative action.
3. After official assistance is given to a constituent or a constituent group, the
Member and the staff should not receive personally anything of value from the group or
person as a payment, a “thank you” or “in appreciation of” the official duties performed
on their behalf.
Ethical Basis For Constituent Assistance Before Federal Agencies.
There is no statutory law, nor Rule of the House of Representatives or of the Senate,
Congressional Research Service ˜ The Library of Congress
which prohibits a Member of Congress or his or her staff from becoming officially involved
in a private grant application, or other request for assistance in matters before a federal
agency, even to the extent of contacting, discussing with, and representing the interests of
one’s constituents before a federal agency or department. Furthermore, there are certain
public policy arguments which have been advanced for a Member’s participation in certain
matters bearing on the public interest which involve federal agencies and a Member’s
constituents. The House Committee on Standards of Official Conduct has noted in the
past, for example, that:
An important aspect of a Congressman’s representative function is to act as a `go-
between’ or conduit between his constituents and administrative agencies of the Federal1
The noted ethicist, the late Senator Paul Douglas of Illinois, explained the underlying
ethical and practical principles as follows:
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 the 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 their legitimate interests in their relationship with the2
The United States Court of Appeals for the District of Columbia, in Sierra Club v.
Costle,3 has noted that informal contacts, in the form of inquiries and expressions of
interest by Members of Congress to agencies on behalf of constituents, which are focused
and based on the appropriate factors which the agency should consider in an informal
agency proceeding, are expected and acceptable in our system of government, and that
such "pressures" on agencies are merely among the considerations with which a public
agency must contend:
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
1 Ethics Manual for Members, Officers, and Employees of the U.S. House of Representatives,
Committee on Standards of Official Conduct, 102nd Cong., 2d Sess. at 241 (1992). See also Senate
Rule XLIII(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 Douglas, Paul H. Ethics in Government, Harvard University Press (Cambridge 1952), at p. 88;
see also Senate Committee Print, “Ethical Standards in Government,” Report of a Subcommitteest
on the Committee on Labor and Public Welfare, 82d Cong., 1 Sess. 28-30 (1951).
3 657 F.2d 298 (D.C. Cir. 1981).
before administrative agencies engaged in informal, general policy rulemaking, so long
as individual Congressmen do not frustrate the intent of Congress as a whole as4
expressed in statute, nor undermine applicable rules of procedure.
While there are no ethical or statutory prohibitions directly on congressional
communications or intervention with federal agencies concerning matters of public interest
on behalf of constituents, there are ethical and other considerations that need to be
recognized in carrying out such intervention.
Evaluating and Prioritizing Assistance Requests. Given the limited time
and resources of a Member’s office and official staff, requests to a congressional office for
assistance in grant applications, and what resources, time and effort to devote to such
request, should be evaluated on the merits of the proposal and project, considering
generally its impact and importance for the community, district or State. The House
Committee on Standards of Official Conduct has issued an advisory opinion concerning
congressional assistance and federal agency interventions, and has emphasized that such
activities should be based primarily on the concept of the “overall public interest,” treating
“constituents equally” and undertaking such actions “irrespective of political or other
considerations.”5 In the Senate, an express Senate Rule has been adopted concerning
communications to agencies on behalf of constituents,6 and pursuant to this Rule the
Senate Ethics Committee similarly recommends that before contacting an agency an office
consider the “merits of the constituent’s case,” the practice in the Senate office of
providing the requested services for “any constituent similarly situated,” or whether the
requested assistance “deviates from normal office practice.”7 The Senate Rule expressly
states that a decision to provide assistance “may not be made on the basis of contributions
or services, or promises of contributions or services, to the Member’s political campaigns
or to other organizations in which the Member has a political, personal, or financial
interest.”8 Members of Congress are understood to represent all of their constituents, even
those who did not necessarily support the Member’s election. The converse, of course,
is also true: merely because one has been a supporter and financial contributor to a
Member’s campaign, does not exclude such person from representation, and does not
mean that a Member or his or her staff should be precluded from assisting that individual
Conduct in Agency Contacts. If a matter is considered to have particular merit
or interest to the Member and the Member’s office, it is permissible to communicate to a
4 657 F.2d at 409-410. See also Gulf Oil Corporation v. F.P.C., 563 F2d 588, 610 (3rd Cir. 1977),
where even in more formal agency procedures, the courts have recognized the important prerogative
and function, the “legitimate and wholesome function,” of congressional oversight of administrative
5 House Committee on Standards of Official Conduct, Advisory Opinion No. 1, “On the Role of
a Member of the House of Representatives in Communicating With Executive and Independent
Agencies,” January 26, 1970.
6 Senate Rule XLVIII.
7 S. Pub. 106-40, Senate Select Committee on Ethics, Senate Ethics Manual, 106th Cong., 2d Sess.
at 178 (September 2000).
8 Senate Rule XLVIII(3).
federal agency the Member’s interest in the matter. Generally speaking, unless the office
is particularly familiar with the matter or with the individual or organization seeking the
grant, the office may wish in a contact to the agency to simply express interest in the
matter, and request to be kept informed of the progress or outcome of the application
process. House and Senate guidelines on contacting agencies note expressly that it is
permissible to request information or a “status report,” urge prompt consideration, or
arrange for interviews or appointments with officials of a federal agency. If it is deemed
warranted, a Member through his or her office may, however, also “express judgment” on
a matter, and may present arguments for a particular position or outcome based on the law
or the public interest. In communicating with agencies and advocating a position and
outcome, Members and staff are advised to address only the merits of a matter, and
specifically may not use the “[d]irect or implied suggestion of either favoritism or reprisal
... [for] action taken by the agency contacted.”9 Furthermore, Members are advised to
assure that representations made on their behalf “are accurate and conform to the
If any matter is in a formal, adjudicatory stage at an agency, or is being litigated, then
the Member and his or her office should be cognizant of the requirements concerning ex
parte communications, and may need to make communications in that context in a more
formal manner, such as putting correspondences in writing, available to both sides of a
controversy, and on the public record.11
Compensation or Rewards. Members and staff should be wary of receiving
“personally,” for their own use, any gifts, presents or anything of value from those whom
they have assisted. Although small gifts and items are generally of little concern under
House and Senate Rules (which expressly allow for “gifts” of under $50 to be accepted
by Members and staff), such “things of value,” if accepted by congressional staff with the
knowledge that they are being rewarded, compensated, or thanked for a particular “official
act” performed (or to be performed) may, under a close reading of the so-called “illegal
gratuities” clause, involve a technical violation of that provision.12 There is, it should be
noted, no express or specific de miminis exception to the “illegal gratuities” provision of
federal law. However, there appears generally to have developed an understanding that the
acceptance of small tokens of appreciation for even “official” services, when accepted by
federal employees in accordance and conformance with federal agency rules or conduct
regulations dealing with the acceptance of “gifts,” would not be conduct that would be
subject to criminal law enforcement.13 In the House, for example, the House Committee
9 House Committee on Standards of Official Conduct, Advisory Opinion No. 1, supra.
10 Id.; and Senate Rule XLIII(4).
11 Note 5 U.S.C. § 557(d). It is possible under certain circumstances that undue or improper
influence or congressional interference in a more formal, quasi-judicial administrative matter could,
under due process arguments, lead to a judicial invalidation of an agency’s decision. Compare,th
Pillsbury Company v. Federal Trade Commission, 354 F.2d 952 (5 Cir. 1966), with D.C.
Federation of Civic Associations v. Volpe, 459 F.2d 1231 (D.C.Cir. 1971), cert. denied, 405 U.S.
12 18 U.S.C. § 201(c)(1)(B).
13 See, for example, 5 C.F.R. §§ 2634.202(b), 2634.204, applying to executive agency personnel.
on Standards of Official Conduct has noted that it would not consider it to be a violation
for an office to receive from a constituent as a “thank you” or in appreciation of official
assistance, perishable gifts of de minimis value, such as flowers or food, which are placed14
out for the entire office staff and visitors, or decorative items displayed in the office. The
making of campaign contributions by constituents or by other petitioners who have
received assistance from a congressional office in the past, which are directed to a
campaign committee, even those contributions which are expressly given because of a
Member’s past help or “support ” (like those given because of a Member’s “positions”or
votes on legislation), are permissible and anticipated in our system of privately financed
campaigns, and do not in themselves implicate the bribery or illegal gratuities provisions.15
Of course, no prior agreement, arrangement or understanding to do any official act, such
as providing assistance on grants, “in return for” the other party making campaign
contributions (i.e., a quid pro quo or “corrupt bargain”), should be made in light of the
express prohibitions of the bribery statute.16
Finally, it should be noted that a congressional staff employee may not act in a
“private,” non-official capacity for the constituent, even during “off-duty” time, and
receive any compensation for “representing” the constituent or constituent group before
any federal agency.17
These regulations were drafted in consultation with the Justice Department. Executive Order
14 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). In no
circumstances should cash be accepted.
15 Illegal gratuities are those things of value that are accepted “personally,” that is, for oneself, and
not things of value such as campaign contributions that are made to a third-party entity like a
lawful campaign committee for use in political campaigns. United States v. Brewster, 506 F.2d
62, 77 (D.C.Cir. 1974). Lawful campaign contributions are considered one legal and permissible
way in our representational system of “rewarding” and showing support of our representatives for
their positions and actions, Brewster, supra at 73, 81- 82; United States v. Anderson, 509 F.2d
312, 330 (D.C.Cir. 1974), cert. denied, 420 U.S. 991 (1975); McCormick v. United States, 500
U.S. 257 (1991), and are protected by the First Amendment, Buckley v. Valeo, 424 U.S. 1, 21
(1976). In a system of privately financed campaigns legislators must, by necessity, rely on private
donations of contributions from supporters. See discussion of “donations of democracy,” in
Noonan, Bribes, pp. 621, 696-697 (Macmillan 1984).
16 United States v. Anderson, supra; McCormick v. United States, supra (extortion).
17 18 U.S.C. § 203, see also 18 U.S.C. § 205.
House Committee on Standards of Official Conduct, Advisory Opinion Number 1.
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;
* arrange for interviews or appointments;
* express judgment;
* 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 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 representative role.
3. A Member should make every effort to assure that representations made in his name by any staff
employee conform to his instruction.
Senate Rule XLIII
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
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 to:
(a) request information or a status report;
(b) urge prompt consideration;
(c) arrange for interviews or appointments;
(d) express judgments;
(e) call for reconsideration of an administrative response which the Member believes is not
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 this rule.
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 financial interest.
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.
to perform legislative, including committee, responsibilities.