Post-Employment, "Revolving Door," Laws for Federal Personnel

Post-Employment, “Revolving Door,” Laws

for Federal Personnel

Jack Maskell

Legislative Attorney

May 12, 2010

Congressional Research Service

7-5700

www.crs.gov

97-875

CRS Report for Congress

Prepared for Members and Committees of Congress

Post-Employment, “Revolving Door,” Laws for Federal Personnel

Summary

Federal personnel may be subject to certain conflict of interest restrictions on private employment

activities even after they leave U.S. government service. These restrictions, applicable when one

enters private employment after having left government service, are often referred to as revolving

door laws. For the most part, other than the narrow restrictions specific to procurement officials,

these laws restrict only certain “representational” types of employment activities such as lobbying

or advocacy directed to, and which attempts to influence, current federal officials.

Under federal conflict of interest law, at 18 U.S.C. § 207, federal employees in the executive

branch of government are restricted in performing certain post-employment “representational”

activities for private parties, including (1) a lifetime ban on “switching sides,” that is,

representing a private party on the same “particular matter” involving identified parties on which

the former executive branch employee had worked personally and substantially for the

government; (2) a two-year ban on “switching sides” on a somewhat broader range of matters

which were under the employee’s official responsibility; (3) a one-year restriction on assisting

others on certain trade or treaty negotiations; (4) a one-year “cooling off” period for certain

“senior” officials barring representational communications to and attempts to influence persons in

their former departments or agencies; (5) a new two-year “cooling off” period for “very senior”

officials barring representational communications to and attempts to influence certain other highranking officials in the entire executive branch of government; and (6) a one-year ban on certain

former high-level officials performing certain representational or advisory activities for foreign

governments or foreign political parties. This law also applies the one-year “cooling off” periods,

and the restrictions on representations on behalf of official foreign entities and assistance in trade

negotiations, in the legislative branch to Members of the House and to senior legislative staff, and

applies the two-year “cooling off” period to former U.S. Senators lobbying the Congress.

Under the provisions of an executive order issued by President Obama on January 21, 2009, fulltime, non-career presidential and vice-presidential appointees in the executive branch, including

non-career appointees in the Senior Executive Service, and excepted service confidential, policymaking appointees, will be subject to more extensive post-government-employment “lobbying”

restrictions. All such appointees will be barred from “lobbying” any executive branch official

“covered” by the Lobbying Disclosure Act (2 U.S.C. § 1602(3)), or any non-career SES

appointee, for the remainder of the current Administration. Additionally, all such appointees who

are “senior” officials subject to the current one-year “cooling off” period on lobbying and

advocacy communications to their former agency, must now abide by such “cooling off” period

for two years.

Further limitations are placed upon post-government private employment activities of

“procurement personnel” in federal agencies. These restrictions go beyond the prohibitions on

merely representational, lobbying, or advocacy activities on behalf of private entities before the

government after leaving government service, and extend also to any compensated employment

for or on behalf of certain private contractors for a period of time after a former procurement

official had been responsible for procurement action on certain large contracts for the

government.

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Post-Employment, “Revolving Door,” Laws for Federal Personnel

Contents

Background: Legislative History and Intent of Provisions ...........................................................1

Executive Branch—Representational Activities...........................................................................3

1. Lifetime Ban on “Switching Sides” ...................................................................................3

2. Two-Year Ban on “Switching Sides” .................................................................................4

3. Representations in Treaty or Trade Negotiations ................................................................4

4. “Senior” Officials: One-Year “Cooling Off” Period ...........................................................4

5. “Very Senior” Officials: Two-Year “Cooling Off” Period...................................................5

6. Representing Foreign Governments...................................................................................5

7. Presidential and Vice-Presidential “Appointees” in Obama Administration .......................6

Bank Examiners..........................................................................................................................6

Procurement Officials .................................................................................................................7

Negotiating Private Employment.................................................................................................8

Executive Branch..................................................................................................................8

Legislative Branch ................................................................................................................9

Legislative Branch—Representational Activities ....................................................................... 10

1. “Cooling Off” Periods on Lobbying or Advocacy ............................................................ 10

2. Trade or Treaty Negotiations ........................................................................................... 11

3. Representing Foreign Governments................................................................................. 12

4. Lobbying Restrictions on Senate Staff ............................................................................. 12

5. Floor Privileges of Former Members ............................................................................... 12

6. Acceptance of Civil Office by Retiring Member of Congress ........................................... 13

Contacts

Author Contact Information ...................................................................................................... 13

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Post-Employment, “Revolving Door,” Laws for Federal Personnel

C

onflict of interest regulations and restrictions on certain private employment opportunities

for a federal officer or employee do not necessarily end with the termination of the

officer’s or employee’s federal service. This report is intended to provide a brief history

and description of the provisions of federal law restricting employment opportunities and

activities of federal employees after they leave the service of the executive or legislative branches

of the federal government. The conflict of interest provisions applicable after one leaves

government service to enter private employment are often referred to as “revolving door” laws.

Background: Legislative History and Intent of

Provisions

Post-employment, “revolving door” statutes restricting certain subsequent private employment

activities of former federal officers and employees were enacted as early as 1872, and again in

1944.1 A portion of the current statutory provision, at 18 U.S.C. § 207, was enacted in 1962 as

part of a major revision and recodification of the federal bribery and conflict of interest laws.2

That post-employment conflict of interest law was then amended and broadened by the Ethics in

Government Act of 1978,3 which added certain one-year “cooling-off” periods for high-level

executive branch personnel, limiting their post-employment advocacy activities before the federal

government for one year after leaving office. After President Reagan vetoed a major

congressional revision of the post-employment law which had been passed by Congress in 1988,4

Congress adopted as part of the Ethics Reform Act of 1989 most of the reforms it had passed the

year earlier in the vetoed legislation.5 The statute has been modified in amendments several times

since 1989, including extensive technical amendments in 1990.6 In 2007, as part of legislation

dealing with lobbying laws and internal congressional rules on gifts, changes were made to the

revolving door statute increasing the one-year “cooling off” period for “very senior” executive

officials and for U.S. Senators to two years, and broadening the one-year “cooling off”

restrictions for covered senior Senate staff.7

1

17 Stat. 202 (1872); 58 Stat. 668 (1944) and 41 Stat. 131 (1919), recodified at 18 U.S.C. §284, June 25, 1948, 62 Stat.

698. See discussion in Conflict of Interest and Federal Service, The Association of the Bar of the City of New York, at

44-53 (1960).

2

P.L. 87-849, 76 Stat. 119, October 23, 1962; see H.Rept. 748, 87th Cong., 1st Sess. (1961).

3

P.L. 95-521, Title V, 92 Stat. 1824, 1864, October 26, 1978.

4

S. 2334, 99th Congress (Senator Thurmond), was reported out favorably by the Senate Judiciary Committee (S.Rept.

No. 99-396, 99th Cong., 2d Sess. (1986)), and in the 100th Congress the Senate Judiciary Committee again reported out

legislation amending the post-employment laws (S. 237, S.Rept. No. 100-101, 100th Cong., 1st Sess. (1987)). An

amendment in the nature of a substitute was offered by Senator Thurmond for himself and Senators Metzenbaum,

Levin, and Specter on February 3, 1988, and the legislation (S. 237) was amended on the Senate floor and passed on

April 19, 1988. In the House, the Judiciary Committee reported out a clean bill (H.R. 5043) on October 6, 1988 (H.R.

Rpt. No. 100-1068, 100th Cong., 2d Sess.), which passed the House on October 12, 1988. Amendments were offered to

the House bill and agreed to in the Senate on October 18, and after the House substituted compromise provisions for

the bill, the House and Senate passed the legislation on October 21, 1988. The legislation was formally presented to the

President on November 14, 1988, subsequent to the adjournment of the 100th Congress. The President announced his

intention not to sign the bill on November 23, 1988, and issued a statement of disapproval. The “pocket veto” was

effective on November 25, 1988, upon the President’s failure to sign the bill.

5

P.L. 101-194, Title I, § 101(a), 103 Stat. 1716, November 30, 1989, as amended.

6

P.L. 101-280, 104 Stat. 149, May 4, 1990.

7

P.L. 110-81, September 14, 2007. See, S. 1, 110th Congress, Sections 101-105, 301, 531-532.

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One of the initial and earliest purposes of enacting the “revolving door” laws was to protect the

government from the use against it of proprietary information by former employees who leave the

government, take with them such information and knowledge, and then use that on behalf of a

private party in an adversarial type of proceeding or matter against the government, to the

potential detriment of the public interest. As noted by the United States Court of Appeals in

upholding the constitutionality of the “switching sides” prohibition of 18 U.S.C. § 207(a), “the

purpose of protecting the government, which can act only through agents, from the use against it

by former agents of information gained in the course of their agency, is clearly a proper one.”8

Another interest of the government in revolving door restrictions was to limit the potential

influence and allure that a lucrative private arrangement, or the prospect of such an arrangement,

may have on a current federal official when dealing with prospective private clients or future

employers while still with the government, that is, “that the government employee not be

influenced in the performance of public duties by the thought of later reaping a benefit from a

private individual.”9 In a case dealing with another federal statute which relates in part to

potential future private employment of a current federal official,10 the court noted that the

statutory scheme was intended to deal with the “nagging and persistent conflicting interests of the

government official who has his eye cocked toward subsequent private employment.”11

Additional interests asserted in the proposed amendments to 18 U.S.C. § 207 in the 99th and 100th

Congresses were to prevent the corrupting influence on the governmental processes of both

legislating and administering the law that may occur, and the appearances of such influences,

when a federal official leaves his government post to “cash in” on his “inside” knowledge and

personal influence with those persons remaining in the government.12 As noted in the postemployment regulations promulgated under the statute by the Office of Government Ethics, the

provisions of the law and regulation are directed at prohibiting “certain acts by former

Government employees which may reasonably give the appearance of making unfair use of prior

Government employment and affiliations”13

These purposes in adopting limitations on former employees’ private employment opportunities

must, however, also be balanced against the deterrent effect that overly restrictive provisions on

career movement and advancement will have upon recruiting qualified and competent persons to

government service. 14 Furthermore, unduly restrictive provisions on the “revolving door” (that is,

movement of government personnel into the private sector, and private sector employees into the

government) may tend to isolate, or at least insulate government employees from private sector

8

United States v. Nasser, 476 F.2d 1111, 1116 (7th Cir. 1973).

Brown v. District of Columbia Board of Zoning, 423 A.2d 1276, 1282 (D.C. App. 1980); note General Motors

Corporation v. City of New York, 501 F.2d 639, 648-652 (2d Cir. 1974), as to appearances of improprieties in such

situations.

10

18 U.S.C. § 208, which prohibits, in part, a federal employee from taking any official action for the government on a

matter in which a firm or organization “with whom he is negotiating ... prospective employment, has a financial

interest.... ”

11

United States v. Conlon, 628 F.2d 150, 155, n. 26 (D.C. Cir. 1980), quoting Conflict of Interest and Federal Service,

supra at 234.

12

See, generally, discussion in S.Rept. No. 396, 99th Cong., 2d Sess. (1986), and S.Rept. No. 101, 100th Cong., 1st Sess.

(1987).

13

5 C.F.R. § 2637.101(c).

14

S.Rept. No. 170, 95th Cong., 1st Sess. 32 (1978); note discussion in “To Serve With Honor,” Report and

Recommendations to the President, by the President’s Commission on Federal Ethics Law Reform, at 53 (1989).

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concerns, considerations, and experiences of the general public to a degree not desirable for

public policy reasons.

Executive Branch—Representational Activities

The provision of federal law with applicability to the broadest range of federal employees is a

criminal statute, codified at 18 U.S.C. § 207, which may work to restrict or regulate some private

“representational,” lobbying, or other advocacy-type of activities by all employees in the

executive branch after they leave government service. Some parts of this statutory restriction also

apply to legislative branch officials, and those are discussed in more detail later in this report in

the part dealing with legislative branch restrictions.

Section 207 of title 18 provides a series of post-employment restrictions on “representational”

activities for executive branch personnel, including (1) a lifetime ban on “switching sides” on a

matter involving specific parties on which any executive branch employee had worked personally

and substantially while with the government; (2) a two-year ban on “switching sides” on a

somewhat broader range of matters which were under the employee’s official responsibility; (3) a

one-year restriction on assisting others on certain trade or treaty negotiations; (4) a one-year

“cooling off” period for certain “senior” officials barring representational communications before

their former departments or agencies; (5) a two-year “cooling” period for “very senior” officials

barring representational communications to and attempts to influence certain other high ranking

officials in the entire executive branch of government; and (6) a one-year ban on certain officials

in performing some representational or advisory activities for foreign governments or foreign

political parties.15 Additionally, certain presidential and vice-presidential appointees in the Obama

Administration are required to sign an ethics agreement which will further limit their postgovernment-employment lobbying and advocacy activities during the entire tenure of the Obama

Administration and, for certain “senior” appointees, for one more year after leaving government

service.

1. Lifetime Ban on “Switching Sides”

Section 207(a)(1) of title 18 of the United States Code provides a lifetime ban on every employee

of the executive branch of the federal government “switching sides,” that is, representing a

private party before or against the United States government in relation to a “particular matter”

involving “specific parties,” when that employee had worked on that same matter involving those

parties “personally and substantially” for the government while in its employ. This lifetime ban is

a fairly narrow and case-specific restriction which in practice would apply to one who worked

substantially on a particular governmental matter such as a specific contract, a particular

investigation or a certain legal action, involving specifically identified private parties, and who

then leaves the government and attempts to represent those private parties before the government

on that same, specific matter. The “switching sides” prohibition does not generally apply to broad

policy making matters, including rulemaking of an agency, but rather, as noted by the Office of

15

An executive order, 12834, January 20, 1993, issued by President Clinton, had required senior presidential

appointees to full-time government positions to take an “ethics pledge” which required observance of longer time

periods, generally five-years, for some of the restrictions on private employment after leaving their government posts.

That executive order was revoked on December 28, 2000 (E.O. 13184), and similar five-year bans have not been reinstituted in the current Administration.

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Government Ethics, “typically involves a specific proceeding affecting the legal rights of the

parties or an isolatable transaction or related set of transactions between identifiable parties.”16

This provision does not prohibit a former government official from doing all work for a private

company or firm merely because the firm had done business with or had been regulated by the

official’s agency, or even had been directly affected by the former official’s duties or

responsibilities on a particular matter such as a contract. Rather, this particular prohibition is upon

subsequent “representational” or “professional advocacy” types of activities, that is, where the

former official makes “any communication or ... appearance” to or before the government “with

the intent to influence” the government on the same matter on which the former official had

personally and substantially worked while with the government. 17

2. Two-Year Ban on “Switching Sides”

Section 207(a)(2) provides a two-year ban on all federal employees in the executive branch on the

same types of representational, post-employment conduct involved in the lifetime ban, except that

it extends to matters which were merely under the “official responsibility” of the federal official

while he or she was with the government. This two-year restriction, while more limited in time

than the previous ban discussed, is potentially broader in matters covered, as it does not require

that the former government employee had personal and substantial involvement in the matter

when that individual worked for the government, but rather merely that it was under his or her

official responsibility.

3. Representations in Treaty or Trade Negotiations

Section 207(b)(1) of title 18 applies to all officers and employees of the executive branch (as well

as Members of Congress and employees in the legislative branch) who had personally and

substantially participated in ongoing trade or treaty negotiations on behalf of the United States

within the last year of their employment and had access to certain non-public information. The

law prohibits such former federal officers or employees, for one year after leaving the

government, from representing, aiding or advising anyone, on the basis of such information,

concerning United States trade or treaty negotiations.

4. “Senior” Officials: One-Year “Cooling Off” Period

Section 207(c)(1) provides a one-year “no contact” or “cooling off” period for “senior” level

employees in the executive branch, whereby such former employees may not make advocacy

contacts or representations to (that is, communications with “intent to influence”), or any

appearance before officers or employees of their former departments or agencies, for one year

after such senior level employees leave those departments or agencies. “Senior” level officers or

employees of the executive branch include persons paid on the Executive Schedule, and those

who are paid at a rate under other authority which is equal to or greater than 86.5% of the basic

rate of pay for level II of the Executive Schedule; military officers in a pay grade of 0-7 or above;

and certain staff of the President and Vice President. This one-year ban applies to any matter on

16

17

5 C.F.R. § 2637.201(c).

See Office of Government Ethics Regulations, at 5 C.F.R. §§ 2637.101(c)(5), 2637.201(b).

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which one seeks official action by the employee’s former department or agency, regardless of

whether or not the former official had worked on the matter while with the government. As

discussed in more detail below, “senior” executive officials who are also covered full-time

presidential or vice-presidential “appointees” in the Obama Administration will be covered by

this restriction, under required ethics agreements, for an additional one year. Since this “cooling

off” ban applies to communications to one’s former agency or department in the executive

branch, it does not restrict former executive branch officials from leaving the government and

then immediately “lobbying” the United States Congress, its Members or employees.

5. “Very Senior” Officials: Two-Year “Cooling Off” Period

The restrictions of 18 U.S.C. § 207(d) apply to “very senior” officials of the executive branch,

including the Vice President, officials compensated at level I of the Executive Schedule (Cabinet

officers and certain other high-ranking officials), and employees of the Executive Office of the

President and certain White House employees compensated at level II of the Executive Schedule.

These officials, under amendments made to the law in 2007, may not for two years after leaving

the government make representations or advocacy contacts on any matter before their former

agencies, or to any person in an executive level position I through V in any department or agency

of the entire executive branch of the federal government.18 Similar to the cooling off period for

“senior” level employees, these restrictions on “very senior” officials do not prohibit any former

executive branch official from leaving the federal government and immediately lobbying the

Congress.

6. Representing Foreign Governments

18 U.S.C. § 207(f) bars, for one year after leaving the government, all “senior” or “very senior”

employees of the executive branch (as well as Members of Congress and senior legislative staff)19

from performing certain duties in the area of representational or advocacy activities for or on

behalf of a foreign government or a foreign political party, before any agency, department, or

official in the entire U.S. government. This provision prohibits, for one year after leaving the

government, those covered former officials from representing an official foreign entity “before

any officer or employee of any department or agency of the United States” with intent to

influence such United States official in his or her official duties,20 and prohibits for one year, as

well, a former senior or very senior official (including Members of Congress and senior

legislative staff) from even aiding or advising a foreign entity “with the intent to influence a

decision of any officer or employee of any department or agency of the United States.”21 The

definitions within this law expressly indicate that those officers and employees to whom such

communications on behalf of foreign governments may not be made during this one-year period

include Members of Congress. 22 This one-year ban on representing or aiding or assisting in

representations of foreign governments becomes a lifetime ban in the case of the United States

Trade Representative or the Deputy United States Trade Representative.

18

18 U.S.C. § 207(d)(1) and (2), P.L. 110-81, Section 101(a).

For those positions and compensation levels included in “senior” and “very senior” designations, see 18 U.S.C. §

207(c)(2), (d)(1), and (e)(1)-(7).

20

18 U.S.C. § 207(f)(1)(A).

21

18 U.S.C. § 207(f)(1)(B).

22

18 U.S.C. § 207(i)(1)(B).

19

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The Office of Government Ethics has explained that the prohibition involves employment

activities with a foreign government that bear upon attempts to influence an official of the U.S.

government. Employment generally with a foreign government is not prohibited by this law, and

general public relations or commercial activities for or on behalf of a foreign government might

not generally involve the types of conduct prohibited unless they also involved attempts to

influence United States government officials:

A former senior or very senior employee “represents” a foreign entity when he acts as an

agent or attorney for or otherwise communicates or makes an appearance on behalf of that

entity to or before any employee of a department or agency. He “aids or advises” a foreign

entity when he assists the entity other than by making such a communication or appearance.

Such “behind the scenes” assistance to a foreign entity could, for example, include drafting a

proposed communication to an agency, advising on an appearance before a department, or

consulting on other strategies designed to persuade departmental or agency decisionmakers

to take certain action. A former senior or very senior employee’s representation, aid, or

advice is only prohibited if made or rendered with the intent to influence an official

discretionary decision of a current departmental or agency employee. 23

7. Presidential and Vice-Presidential “Appointees” in Obama

Administration

President Obama issued an executive order on January 21, 2009, which places two additional

post-employment, “revolving door” restrictions on all full-time, non-career presidential or vice

presidential appointees in the executive branch, including non-career SES appointees and

appointees to positions in the excepted service which are of a confidential and policy-making

nature (such as Schedule C appointees). These “appointees” must agree to a binding “ethics

pledge” which will prohibit them, after leaving government service, from lobbying (that is, acting

as a registered lobbyist under the Lobbying Disclosure Act of 1995, as amended [hereinafter

LDA]) any executive branch official “covered” under the LDA (2 U.S.C. § 1602(3)), or any noncareer SES appointee, for the remainder of the entire Obama Administration.24

Additionally, all such “appointees” who are also “senior” executive branch officials covered by

the one-year “cooling off” period of 18 U.S.C. § 207(c)(1), whereby such former officials may

not lobby or make advocacy communications to certain officials in their former agencies and

departments, must now abide by such “cooling off” period for two years.25

Bank Examiners

Under amendments to the Federal Deposit Insurance Act, certain officers and employees of a

“Federal banking agency or a Federal reserve bank,” who are involved in bank examinations or

inspections, will be restricted from any compensated employment with those private depository

institutions for a period of one year after leaving federal service.26 This restriction applies to

23

Office of Government Ethics Memorandum “Revised Material Relating to 18 U.S.C. § 207,” November 5, 1992, at

p. 11.

24

Executive Order 13490, Section 5 (74 F.R. 4673-4674, January 26, 2009).

25

Executive Order 13490, Section 4.

26

P.L. 108-458, § 6303(b), 118 Stat. 3751 (2004); see now 12 U.S.C. § 1820(k).

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employees who served for at least two months during their last year of federal service as “the

senior examiner (or a functionally equivalent position),” and who exercised “continuing, broad

responsibility for the examination (or inspection)” of a depository insitution or depository

institution holding company. These former employees are barred for one year from receiving any

compensation as an “employee, officer, director, or consultant” from the depository institution,

the depository institution holding company that controls such depository institution, or any other

company that controls the depository institution, or from the the depository institution holding

company or any depository institution that is controlled by that the depository institution holding

company.

Procurement Officials

Further limitations upon the post-government employment activities of certain officials exist

under so-called “procurement integrity” provisions of federal law for those former federal

officials who had acted as contracting officers or who had other specified contracting or

procurement functions for an agency. These additional restrictions go beyond the prohibitions on

merely “representational,” lobbying, or advocacy activities on behalf of private entities before the

government, and extend also to any compensated activity for or on behalf of certain private

contractors for a period of time after a former procurement official had worked on certain

contracts for the government.

The current post-employment restrictions within the procurement integrity provisions of federal

law are codified at 41 U.S.C. § 423(d).27 Under such provisions, former federal officials who had

been involved in certain contracting and procurement duties for the government concerning

contracts in excess of $10 million, may not receive any compensation from the private contractor

involved, as an employee, officer, consultant, or director of that contractor, for one year after

performing those procurement duties for the government.

The types of contracting duties and decisions for the government which would trigger coverage

under these provisions include acting as the “procuring contracting officer, the source selection

authority, a member of the source selection evaluation board, or the chief of a financial or

technical evaluation team in a procurement” in excess of $10 million; acting as the program

manager, deputy program manager, or administrative contracting officer for covered contracts; or

being an officer who personally made decisions awarding a contract, subcontract, modification of

a contract or task order or delivery order in excess of $10 million, establishing overhead or other

rates valued in excess of $10 million, or approving payments or settlement of claims for a

contract in excess of the covered amount.

Officials of the Department of Defense who are involved personally and substantially in

procurements of over $10 million, are leaving the department, and know that they will be

receiving compensation from a defense contractor within the next two years, must request within

30 days before their departure, an ethics opinion about what they can and cannot do for the

defense contractor under current ethics laws and rules. 28

27

See P.L. 104-106, § 4304(a), 110 Stat. 659, February 10, 1996. This law, the Defense Authorization Act of 1996,

also repealed certain specific restrictions on post-employment activities of military personnel which had been codified

at 10 U.S.C. § 2397, 2397b and 18 U.S.C. § 281. P.L. 104-106, Section 4304(b), 110 Stat. 664.

28

P.L. 110-181, "National Defense Authorization Act for Fiscal Year 2008," at Sec. 847, 122 Stat. 243 (2008), see also

(continued...)

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Negotiating Private Employment

Executive Branch

Current federal employees in the executive branch who are seeking private employment may

incur restrictions on the performance of their current duties for the government. The principal

federal conflict of interest law, at 18 U.S.C. § 208, provides, among other restrictions, that once

any federal employee or officer in the executive branch begins “negotiating” subsequent

employment with a private employer, that employee or officer must disqualify (recuse) himself or

herself from any official governmental duties, such as recommendations, advice, or decision

making, on any particular matter which has a direct and predictable effect on the financial

interests of that potential private employer.29

The Office of Government Ethics has issued regulations concerning this potential conflict of

interest, and has expanded by regulation certain disqualification requirements beyond bilateral

“negotiations,” applying such requirements where the employee has even merely “begun seeking

employment.” The regulations note that a federal employee has “begun seeking employment” not

only if the employee is involved in a “discussion or communication” that is “mutually conducted”

(even if the specifics of a job or employment are not discussed), but also if the employee has

made an unsolicited communication regarding employment (other than merely asking for an

application or sending a resume to someone who is affected by the employee’s duties “only as

part of an industry or other discrete class”), or if the employee has made a response other than a

rejection to an unsolicited communication from a private source concerning employment. This

status of “seeking employment” will continue until all possibilities of employment are rejected,

and discussion ended, or two months have passed after an unsolicited communication had been

made by the employee and no indication or interest or postponement of consideration was

indicated.30 During the time one is within this status of “seeking employment,” the employee

“should notify the person responsible for his assignment,” or if the individual is responsible for

his or her own assignments, then the employee must take “whatever steps are necessary” to

ensure compliance. Appropriate oral or written communication to one’s coworkers and

supervisors concerning a required disqualification is suggested in the regulations, although

written documentation of a recusal is not required in the regulations except to conform to a

previous ethics agreement with the Office of Government Ethics.31 Waivers from the

disqualification requirements may be obtained in writing from the official responsible for the

employee’s appointment. 32

In the area of procurement, even if no actual negotiations with a potential private employer are

involved or have begun, certain “contacts” about prospective private employment between certain

private contractors and federal procurement personnel may trigger reporting and recusal

(...continued)

regulations at 74 Fed. Reg. 2408, January 15, 2009.

29

Note 5 C.F.R. § 2635.601; see United States v. Conlon, 628 F.2d 150 (D.C.Cir. 1980); CACI, Inc. - Federal v. United

States, 719 F.2d 1567 (Fed. Cir. 1983).

30

5 C.F.R. § 2635.603(b).

31

5 C.F.R. § 2635.604(b),(c).

32

5 C.F.R. § 2635.605; 18 U.S.C. § 208(b)(1) and (3).

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requirements. Agency officials who are “participating personally and substantially” in a federal

procurement for a contract in excess of $100,00033 must report all contacts from or to a bidder or

offeror on that contract, when those contacts are about the possibility for non-federal employment

for that official. In addition to reporting the contacts made or received, the official must then

either reject the possibility of future employment, or must disqualify himself or herself from

further participation in the procurement until all discussions have ended without an employment

agreement, or until the business is no longer a bidder or offeror in that procurement. 34 As noted in

the previous section, procurement officials in the Deparment of Defense who are involved

personally and substantially in procurements of over $10 million, are leaving the department, and

know that they will be receiving compensation from a defense contractor within the next two

years, must request within 30 days before their departure, an ethics opinion about what they can

and can not do for the defense contractor under current ethics laws and rules.35

Legislative Branch

Changes in the rules of the House and Senate have been adopted in 2007 regarding negotiations

for future private employment by Members and certain staff. In the Senate, the general rule is that

Senators may not begin private employment negotiations, or have arrangements for subsequent

private employment, until their successors have been elected.36 In the House, the general rule is

that Members may not begin private employment negotiations, or have arrangements for

subsequent private employment, while still serving in the House.37 The exception to both the

House and Senate rules allows for such negotiations to begin earlier, before a successor is elected

in the Senate or one’s term is over in the House, if the Senator or Representative makes a

disclosure statement within three business days concerning the commencement of such

negotiations or agreements. However, in the Senate, this exception will not apply to, and thus will

not allow, such negotiations or arrangements for future private employment which involves

“lobbying activities” until the Senator’s successor has been elected.38

The congressional rules further provide that a Member of the House of Representative who is

negotiating or has an arrangement for future employment prior to the expiration of his or her term

of office must “recuse” or disqualify himself or herself from participating in any matter that may

raise a conflict or interest, or the appearance of a conflict of interest, because of such negotiations

or employment arrangements, and must notify the House Committee on Standards of Official

Conduct of such recusal.39 In the Senate, the original disclosure statement of negotiations or

arrangements is to be made public at the time it is made to the Secretary of the Senate; while in

the House, the original notification of private employment negotiations or arrangements is not

made public until and unless the Member must recuse himself or herself for conflict of interest

33

The current “simplified acquisition threshold,” see 41 U.S.C. § 403(11).

41 U.S.C.§ 423(c).

35

P.L. 110-181, "National Defense Authorization Act for Fiscal Year 2008," at Sec. 847, 122 Stat. 243 (2008), see also

regs at 74 Fed. Reg. 2408, January 15, 2009.

36

Senate Rule XXXVII, para. 12(a).

37

House Rule XXVII, cl. 1 (P.L. 110-81, Sections 301 and 532), as amended by H.Res. 5, 111th Congress.

34

38

Senate Rule XXXVII, para. 12(b). “Lobbying activities” referred to are those defined by the Lobbying Disclosure

Act of 1995, and thus would include behind-the-scenes advice and assistance to support “lobbying contacts.” See 2

U.S.C. § 1602(7).

39

House Rule XXVII, cl. 4.

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purposes, and then the recusal notification as well as the original disclosure statement are made

public.40

“Senior” staff in both the House and Senate (i.e., those employees who are compensated in excess

of 75% of a Member’s salary) must notify the appropriate ethics committee within three business

days that the staffer is negotiating or has any agreement concerning future private employment. 41

Covered Senate and House employees must then recuse themselves from official legislative

matters that raise conflicts of interest because of their prospective private employment interests,

and notify the appropriate ethics committees of such recusal. Covered Senate staffers must

specifically recuse themselves from making any contact or communications with the prospective

employer on issues of legislative interest to that employer.

Legislative Branch—Representational Activities

The Ethics Reform Act of 1989 added post-employment restrictions for Members and certain

senior congressional staffers, effective January 1, 1991, and these have been amended by the

lobbying and ethics reform legislation, titled the “Honest Leadership and Open Government Act

of 2007.”42 Under the criminal provisions of this statutory law, individuals who were Members of

the House are prohibited from “lobbying” or making advocacy communications on behalf of any

other person to current Members of either House of Congress, or to any legislative branch

employee, for one year after the individual leaves Congress. Members of the Senate are

prohibited from similar post-employment advocacy, but for a period of two years after leaving the

Senate. Additionally, senior staff employees are subject to certain one-year “cooling off” periods

regarding their advocacy contacts with their former offices; and both former Members and former

senior staff are limited in representing official foreign interests before the U.S. government, and

in taking part in certain trade and treaty negotiations, for one year after leaving congressional

service.

1. “Cooling Off” Periods on Lobbying or Advocacy

There are now so-called “cooling off” periods of two different durations applicable in the

legislative branch that restrict post-employment “lobbying” and advocacy activities. United States

Senators are subject to a two-year post-employment advocacy ban, which restricts their lobbying

anyone in Congress, or any employee of a legislative office, for two years after leaving the

Senate. 43 Members of the House of Representatives, as well as “senior” legislative branch

employees, are now subject to a one-year “cooling off” or “no contact” period after they leave

congressional office or employment.44 Members of the House of Representatives are prohibited

for one year after leaving office from lobbying or making other advocacy contacts with any

40

Senate Rule XXXVII, para. 12(a); House Rule XXVII, cl. 4.

Senate Rule XXXVII, para. 12(c); House Rule XXVII, cl. 2.

42

P.L. 110-81, September 14, 2007.

43

18 U.S.C. § 207(e)(1)(A).

44

18 U.S.C. § 207(e)(1)(B) and (e)(2)-(6).

41

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Member, officer, or employee of either house of Congress, or to any employee of a legislative

office.45

“Senior” legislative branch employees are subject to the post-employment restrictions if they are

compensated at a rate equal to or above 75% of the rate of pay of a Member of the House or

Senate, and are employed for more than 60 days.46 “Senior” Senate staff covered by these

statutory provisions are prohibited for one year after leaving Senate employment from making

advocacy communications to any officer, employee, or Member of the entire Senate.47 “Senior”

House staff are barred for one year after leaving House employment from making advocacy

communications only to their former employing office; that is, former “senior” employees of a

Member of the House may not, for one year after they leave congressional employment, make

advocacy or representational contacts to that Member or any of the Member’s employees. House

committee staffers covered by these provisions are barred for one year after leaving office from

making such advocacy contacts and representations to any Member or employee of their former

committees, or to any Member who was on the committee during the last year of the staffer’s

employment; and “senior” employees in House leadership offices are prohibited for one year after

leaving employment from making advocacy communications to anyone in that leadership

office.48

Not all contacts or communications by former Members or employees with current Members or

employees within the one-year period are barred, however. The prohibition goes only to

advocacy-type of communications, that is, communications “with the intent to influence” a

Member or officer or employee of the legislative branch concerning “any matter on which such

person seeks official action” by that Member, officer or employee, or by either House of

Congress. There are also several specific exceptions to the general prohibition, including, for

example, exceptions for lobbying and advocacy work for State or local governments, testifying

on matters under oath, and generally for representations or communications on behalf of political

candidates, parties and political organizations. 49

2. Trade or Treaty Negotiations

There is a further restriction on all officers and employees of the government, including Members

of Congress and congressional staff, who worked personally and substantially on a treaty or trade

negotiation and who had access to information which is not subject to disclosure under the

Freedom of Information Act, from using such information for one year after leaving the

government for the purpose of aiding, assisting, advising, or representing anyone other than the

United States regarding such treaty or trade negotiation.50

45

18 U.S.C. § 207(e)(1)(A) and (B).

18 U.S.C. § 207(e)(7).

47

18 U.S.C. § 207(e)(1)(B), as amended by P.L. 110-81.

48

18 U.S.C. §207(e)(3),(4),(5), and (6).

49

18 U.S.C. § 207(j).

50

18 U.S.C. §207(b)(1).

46

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3. Representing Foreign Governments

Members of Congress, and those “senior” legislative branch employees who are covered by the

one-year “cooling off” periods, are also prohibited for a year after leaving office or employment

from representing an official foreign entity before the United States, or aiding or advising such

entity with intent to influence any decision of an agency or employee of any agency or

department of the U.S. government. 51

4. Lobbying Restrictions on Senate Staff

All employees of the Senate remain subject to the Senate Rule governing lobbying after they

leave Senate employment. Senate Rule XXXVII, clause 9, applies to all former staffers who have

become registered lobbyists, or are employed by a registered lobbyist or by an entity that retains

lobbyists if the former staffer is to influence legislation. Such former staffers are prohibited for

one year after leaving the Senate from lobbying the Senator for whom they used to work or the

Senator’s staff. Former committee staff are prohibited from lobbying the Members or the staff of

that committee for one year. If the staffer is a “senior” employee, then the former staffer, in

accordance with the statutory restriction, will be barred from lobbying any Member, officer, or

employee of the entire Senate for one year.52

5. Floor Privileges of Former Members

Under congressional rules and practice, former Members are generally granted the privilege of

admission to the floor of the Senate or House, respectively.53 However, under the Rules of the

House of Representatives, former Members of the House are not to be entitled to floor privileges

if they have any “direct or pecuniary interest in any legislative measure pending before the House

or reported by any committee,” and are not entitled to admission if they are registered lobbyists or

agents of a foreign principal, or employed by or otherwise represent “any party or organization

for the purpose of influencing, directly or indirectly, the passage, defeat or amendment of any

legislative measure pending before the House, reported by any committee” or under consideration

of a committee. 54 The Senate rules have also been changed to withdraw floor privileges from a

former Member or officer who is a registered lobbyist or agent of a foreign principal, or is in the

employ of an organization for the purpose of influencing, directly or indirectly, the passage or

defeat of legislation or any legislative proposal. 55 The House and Senate have both limited the

access of such former Members, if those former Members are now registered lobbyists or foreign

agents, to the athletic and exercise facilities in the House and Senate.56

51

18 U.S.C. §207(f).

Senate Rule XXXVII, para. 9(a) (b), and (c), as amended by P.L. 110-81 [S. 1, 110th Congress], Section 531.

53

Senate Rule XXIII; House Rule IV, clause 2(a)(15).

54

Rules of the House of Representatives, House Rule IV, clause 4, as amended by H.Res. 648, February 1, 2006, and

regulations of the Speaker, 123 Cong. Rec. 321 (January 6, 1977).

55

Senate Rule XXIII, P.L. 110-81, Section 533.

56

Senate Rule XXIII, paragraph 3, P.L. 110-81, Section 533; see H.Res. 6, Section 511(c).

52

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6. Acceptance of Civil Office by Retiring Member of Congress

A Member of Congress may not, before the expiration of his or her term, accept a civil office in

the U.S. government if that office was created, or the salary for the office had been increased

during the Member’s current term.57 This constitutional provision would by its terms prevent a

Member of Congress from retiring from Congress before his or her current term has expired, and

accepting such a civil position with the federal government. It may be noted that the

disqualification has on many occasions been avoided in regard to an office for which the salary

was increased during the Member’s term, by enacting legislation lowering the salary of that

particular office back to its previous level. 58

Author Contact Information

Jack Maskell

Legislative Attorney

jmaskell@crs.loc.gov, 7-6972

57

United States Constitution, Article I, Section 6, clause 2.

58

See general discussion in archived CRS Report 87-579A, Ineligibility of a Member of Congress for a Civil Office in

the Federal Government Which Was Created, or for Which the Salary Was Increased, During the Time For Which the

Member Was Elected, June 30, 1987, available from author upon request.

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