On talking to congressional staffers

tl;dr: As it turns out, I’m allowed to talk to congressional staffers.  I honestly didn’t know this.  In fact, it is unlawful to attempt to prohibit a federal employee from talking to any Member, committee, or subcommittee of the Congress.

During the part of my career that I’ve been working in the Office of the Secretary of Defense, (the past 13 years!) I have been periodically advised never to talk to Congressional staffers and never to comment on proposed legislation, unless said communication is coordinated by Legislative Affairs.

Last year, a congressional staffer handed me his card and asked for my consult on a bit of proposed legislation.  I demurred and apologized, explaining that as an executive branch employee, I could not do so.  He nodded and said he understood.

The restriction is probably wise; staffers are very influential, but very busy, and therefore very prone to misunderstand.  By the nature of their job, congressional staffers need to be miles wide and are consequently inches deep. It makes perfect sense that the executive branch (or at least cabinet-level departments like Defense) should want to “speak with one voice”.  The general perspective of the executive branch seems to be that Congress should pass the budget, but let the “doers” get on with the “doing”.  When Congress tries to micromanage the executive branch, bad things can happen.

Or so the argument goes.

This troubles me.  The above received wisdom is based on countless instances of ill-considered congressional direction to the executive branch, but how can anyone expect other than ill-considered direction, when there is neither feedback nor dialogue?  Or when what little dialogue occurs is circumscribed by official-party-line minders?

At the end of the day, Congress does write the rules, and interestingly, I recently discovered that the rules say this: not only are executive branch employees allowed to talk to Congress, but it is unlawful to prohibit or prevent a government employee from talking to Congress.  Really:

5 USC § 7211 – Employees’ right to petition Congress

The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.

Moreover, there is a clear penalty for those who would prevent executive branch dialogue with the Congress: their own salary is at stake.

Public Law 105-61

Sec. 640. No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or employee of the Federal Government, who–

(1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee; or

(2) removes, suspends from duty without pay, demotes, reduces in rank, seniority, status, pay, or performance of efficiency rating, denies promotion to, relocates, reassigns, transfers, disciplines, or discriminates in regard to any employment right, entitlement, or benefit, or any term or condition of employment of, any other officer or employee of the Federal Government, or attempts or threatens to commit any of the foregoing actions with respect to such other officer or employee, by reason of any communication or contact of such other officer or employee with any Member, committee, or subcommittee of the Congress as described in paragraph (1).

Forearmed with this knowledge, I resolve henceforth to be bolder should the occasion arise. I publish this in the hopes that it may inspire others to do likewise.  That said, just because you can do something, doesn’t mean you should.  Proceed with caution, discretion and prudence.

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