May Staffers Write for Money? | A Question of Ethics
Q. I am a staffer for a member of the House and am considering getting a second job. My wife, who is an attorney, is pregnant with our first child, and she plans to stop practicing law so that she can stay home and raise our child. I am more than happy with this arrangement, but it will definitely be a blow to our family budget, so I am looking for ways to supplement my income. One idea was to resume my career as a writer. I wrote for newspapers and magazines before working in the House, and would like to write some magazine articles on the side after the baby arrives. I would not allow the writing to interfere with my official duties in any way. I assume this is okay, but figured I would check. May I write magazine articles for money while employed by the House? A. First of all, congratulations! Your life is about to change in more ways than one. As for your budget, I may not have good news. Unfortunately, House rules impose tight restrictions on the extent to which members and staffers may earn outside income. In fact, the work that you have in mind may be off-limits, depending on your position and the nature of the job. The restrictions on outside employment turn on whether you qualify as a “senior staffer.” Some restrictions apply to all members and staffers. Others apply just to members and “senior staffers” or very senior staffers. The restrictions also depend on the type of outside work. Some types of outside work are forbidden altogether, such as legal work. Others are permissible in some circumstances, but with limits on the amount of income that may be earned from such work.
Your question regarding magazine articles concerns what the rules call an “honorarium,” or a payment of money or something of value for an appearance, speech or article. Ever since the Ethics Reform Act of 1989 , House rules have forbidden members and senior staffers from accepting honoraria of any kind.
Before the rules change, members and staffers could accept honoraria of up to $2,000 per speech, appearance or article. However, growing concern that honoraria created an apparent conflict of interest led to an outright ban. As a House ethics task force explained at the time: “Significant increases in honoraria income in recent years have heightened the public perception that honoraria [are] a way for special interests to try to gain influence or buy access to Members of Congress, particularly since interest groups most often give honoraria to Members who serve on committees which have jurisdiction over their legislative interests.”
The House Ethics Manual stresses the absolute nature of the ban on honoraria. “It encompasses every appearance, speech, or article,” the manual states, “regardless of its subject matter or relationship to official duties, and the Standards Committee has no authority to grant waivers under any circumstances.”
In 1998, however, the House slightly relaxed the ban for non-senior staffers, which the rules define as staffers paid below a certain pay rate. Currently, non-senior staffers are those paid less than $120,749 per year. If this includes you, then you may accept payments for magazine articles provided that you meet certain criteria.
First, the subject matter of your articles must not directly relate to your official duties. Second, the payment you receive for your articles must not be made because of your status as an employee of the House. And, third, the person or entity making the payment for the articles must not have interests that could be “substantially affected” by the performance or nonperformance of your official duties. If all of these criteria are met, and you are not considered a senior staffer under the rules, then you should be able to accept payments for your articles. However, the safest course would be to confirm your specific circumstances with the Ethics Committee.
Finally, you didn’t say what type of articles you plan to write, so one other point is worth mentioning. If the articles you have in mind are works of fiction, poetry or script, you may be in luck. Payments for these types of written product generally do not count as honoraria at all under the rules and are therefore permissible so long as they are not offered because of your official position.
In any event, good luck with your first child. But, as a father of two, I should warn you: Your newborn might not leave you much time for writing anyway!
C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to email@example.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.