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‘Foreign Entity’ Restrictions Apply to Some Departing Staff

“I have worked as an aide for a Member of the House for the past eight years and am now considering a move to the private sector. I am worried that if the House extends the current one-year ‘cooling-off’ period to two years there will be a sudden exodus of staff to the private sector, as they aim to start a new job before the two-year period goes into effect. So, I want to act quickly to beat that rush. [IMGCAP(1)]

“I am mulling several opportunities, the most appealing coming from a lobbying group here in D.C. My question concerns the fact that the group regularly represents a moderate Palestinian political party that advocates peace with Israel. While I am generally aware that there are restrictions on departing Members’ activities with foreign entities, I am not a Member and am not even sure whether the political party would qualify as a foreign entity. Besides, the lobbying group has told me just to take the job and that they will iron out the details. Do I have anything to worry about?”

A: I wish I could say that you don’t. However, yes, there are post-employment restrictions upon activities with foreign entities, and, yes, the political party qualifies. The restrictions are codified in a federal statute, which defines “foreign entity” to include, among other things, a foreign political party.

As for whether the restrictions apply to you, that depends on how well your boss pays you. While the restrictions apply to all Members, they only apply to staff if you are fortunate enough to have an annualized salary equal to at least 75 percent of that of the lawmaker who employs you. Currently, that’s $123,900 for a staffer in a rank-and-file office.

Assuming you qualify, if you leave the office now, the restrictions will apply for one year after the date you leave. (Believe it or not, depending on your circumstances, defining the “date you leave” could be the subject of a whole other column.) During that time, you should be aware that violating the rules would be a felony and could subject you to jail time and heavy fines. Therefore, you’d better brush up on the rules. Here’s a start:

There are two core restrictions on your activities with foreign entities. The first is straightforward. It forbids you from representing a foreign entity before a federal official with the intent to influence the official. The safest way to comply with this restriction is simple: Don’t represent a foreign entity before a federal official, regardless of the reason. This is because, if you were to represent a foreign entity before an official and a question ever were to arise about that meeting, an investigator might presume that when former Members or their staff meet with federal officials, their intent can only be to influence those officials.

The second restriction is more broad and vague. It says that you may not “represent, aid, or advise” a foreign entity with the intent to influence a federal official. Part of what makes this restriction so broad is that you might run afoul of it even if no one ever actually attempts to exert influence. That’s because an investigator might take the position that all that is required for liability is: (1) assistance to a foreign entity and (2) the intent to influence a federal official.

Unlike the first restriction, then, the second one extends to any “behind the scenes” help you might provide. According to the analysis of one ethics committee, this even forbids you from drafting a communication or participating in strategic discussions regarding influencing a federal official. Although the rules are not clear, an investigator might argue that the restrictions apply even if the discussions never materialize into any actual attempt to influence an official.

What can you do? Well, for starters, don’t just rely on what you read here. Present all the facts to someone who has the expertise to advise you. When you do ask someone, you may be told that the safest thing to do is to wait a year before working for the lobbying group. But, given that this is your most intriguing offer, waiting that long may not be practical, especially with the looming possibility that the House will extend the cooling-off period.

So, assuming you’d like to take the job, you’d better not let your potential employer “iron out the details.” Instead, before even taking the job, you can require that the lobbying group confirm in writing that, during the time in which the restrictions apply, your job responsibilities will not include providing assistance of any kind to the Palestinian political party or any other foreign entity. You also can request written confirmation that your job won’t require you to run afoul of any other applicable restrictions. And then you and the group had better stick to it. These precautions may be more than is necessary, but, in this case, less is less and more is more.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Readers should not treat his column as legal advice.