A Framework for Federal Judicial and Legal Personnel Considering Participating in Capitol Hill Day or Other Legislative Outreach

Beltway Bulletin by Dan Renberg and Cissy Jackson from the Winter 2024 issue of The Federal Lawyer

Since the mission of the FBA is to advance the science of jurisprudence and to promote the welfare, interests, education, and professional development of attorneys involved in federal law, an important component of this mission is monitoring and participating in policy-making processes in Congress, the Executive Branch, and the Federal Judiciary. With the assistance of outside counsel, the FBA’s Government Relations Committee leads and oversees this work, but for the Association’s government relations program to be most effective, engagement from the broader membership is essential. The experiences and insights of FBA members can be highly relevant and informative for legislators; however, for FBA members who are federal judges, magistrates, nonjudicial court employees, and executive branch employees, the prospect of “lobbying” or direct advocacy to government officials can raise questions about what is and is not permitted by their governing codes of conduct. In response to several inquiries from FBA members in various such roles, we have compiled the following analytical framework which should assist in educational outreach.

After review of relevant codes of conduct, advisory opinions, and statutes, and in consultation with judges who are FBA members, the GRC believes that educational outreach activities conducted on the FBA member’s own time and in an individual capacity—including participation in Capitol Hill Day and one-on-one or group meetings, calls, or correspondence with Members of Congress—regarding the following 2023 policy priorities would be permissible: Federal Judgeships and Caseloads, Article I Immigration Courts, Funding for the Federal Courts, and Judicial Security.

When speaking to Congress in an individual capacity, a judge or judicial branch employee who is opining on legislation or similar public policy matters should make clear to the audience in what role he/she is speaking—for example by stating that he/she is not providing the views of the Judicial Conference of the United States or of the circuit or court unit.  Of course, this would not apply to judges or staff who have been specifically authorized to speak to Congress on a particular topic.

Analytical Framework for Federal Judges and Magistrates

To the extent that the judge’s time permits and impartiality is not compromised, judges are actively encouraged to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice, either independently or through a bar association, judicial conference, or other organization dedicated to the law.¹

A judge may appear before a legislative or executive body or official, at a public hearing, or in private consultation, with respect to matters concerning the law, the legal system, and the administration of justice, if it would generally be perceived that a judge’s judicial experience provides special expertise in the area.²

Examples include “matters relating to court personnel, budget, equipment, housing, and procedures. These matters are all vital to the judiciary’s housekeeping functions and the smooth operation of the dispensation of justice generally.”³

“To qualify as an acceptable law-related activity, the activity must be directed toward the objective of improving the law, qua law, or improving the legal system or administration of justice, and not merely utilizing the law or the legal system as a means to achieve an underlying social, political, or civic objective.” The clearest examples of permissible law-related activities are those addressing the legal process. However, “activities directed toward substantive legal issues, where the purpose is to benefit the law and legal system itself rather than any particular cause or group, may be permissible.”⁴

Because of Canon 2A’s provision that a judge should act at all times in a manner that promotes public confidence in the impartiality of the judiciary, judges should exercise caution when considering participation in law-related activities concerning highly controversial subjects.⁵

Federal judges may make recommendations to public fund-granting agencies about projects and programs concerning the law, the legal system, and the administration of justice.⁶

With regard to matters not concerning judicial administration, a judge may appear at a public hearing before or consult with an executive or legislative body or official only to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in that area.⁷

If a judge’s participation is sought for some reason other than his or her judicial expertise, the activity is less likely to be permissible.⁸ In other words, legislative appearances by a judge are generally permissible only where the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual. The subject matter should also not include legislation aimed at political issues or matters that may spawn litigation likely to come before the judge.⁹

Consider whether the beneficiary of the activity is the law or legal system itself. A permissible activity “serves the interests generally of those who use the legal system, rather than the interests of any specific constituency, or enhances the prestige, efficiency, or function of the legal system itself.”¹⁰

Close questions should be answered by evaluating how closely related the substance of the activity is to the court’s principal mission of delivering unbiased, effective justice to all.¹¹

Although judges are prohibited from engaging in any political activity, this prohibition does not prevent a judge from engaging in the above-described activities.¹² “Political activity” generally relates to actions on behalf of any party, political committee, or candidate for political office and is outside the scope of any FBA government relations activity.

Before deciding to engage in a law-related activity that may have political overtones, a judge should consider whether participating in such activity would compromise the judge’s independence or would create an appearance of impropriety or partiality.¹³

Judges should restrict politically-oriented activities to those that are most directly related to the law and legal process.¹⁴

Framework for Nonjudicial Court Employees

The Judicial Conference has approved a Code of Conduct for Judicial Employees, which applies to all employees of the judicial branch, including interns, externs, and other volunteer court employees.¹⁵

Like judges, nonjudicial court employees must avoid outside activities that present a risk of conflict with their official duties or create the appearance of impropriety.¹⁶

As long as the outside activities do not detract from the dignity of the court, interfere with the performance of official duties, or adversely reflect on the operation and dignity of the court or employee’s office, a judicial employee may participate in civic, charitable, professional, and educational activities.

If the outside activities concern the law, the legal system, or the administration of justice, the judicial employee should first consult with their appointing authority to determine whether the proposed activity is permissible.¹⁷

Judicial employees should refrain from inappropriate political activity, but participation in the nonpolitical activities of a civic, charitable, religious, professional, educational, cultural, avocational, social, fraternal, or recreational organization is permissible.¹⁸

Framework for Federal Public Defender Employees

The Code of Conduct for federal public defender employees specifically authorizes them to engage in activities to improve the law, the legal system, and the administration of justice.¹⁹

A defender employee may speak, write, lecture, teach, and serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice.

A defender employee may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal profession, and the administration of justice.

Like nonjudicial court employees, federal defender employees should refrain from inappropriate political activity.

Framework for Executive Branch Employees

Federal employees have a statutory right, “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” as long as such activities take place while the employees are off duty and do not use government property or government resources.²⁰ Federal employees should make clear in any communications to a Member of Congress that they are acting in their individual capacities and on their own time.

While in the performance of their official duties, federal employees are prohibited from contacting any Federal agency or Federal court on behalf of others to influence Government action, unless authorized to do so as part of their official duties.²¹

Also, while in the performance of their official duties, federal employees may not assist or solicit the general public to lobby Members of Congress to support or oppose potential legislation.²² In other words, while on the job, federal employees should not suggest in a private conversation, speech, or written correspondence that any person, group or organization call or write to a Member of Congress regarding legislative proposals.

Conclusion

Hearing from government lawyers and judges can be very impactful for Members of Congress when considering legislation relating to the administration of justice. For this reason, the GRC invites its members who are government attorneys and judges to review these frameworks and to take any other steps necessary to satisfy themselves with regard to compliance, including consulting the appropriate ethical authority in their agencies or organizations.

Endnotes

1 See Guide to Judiciary Policy, Vol. 2A. Ch. 2, Commentary to Canon 4 (Mar. 12, 2019).

2 See Guide to Judiciary Policy, Vol. 2A. Ch. 2, Canon 4A(2).

3 Guide to Judiciary Policy, Vol. 2B, Ch. 2 (“Advisory Op.”), No. 50: Appearance Before a Legislative or Executive Body or Official (June 2009).

4 See Advisory Op. No. 93: Extrajudicial Activities Related to the Law (June 2009).

5 Id.

6 See Guide to Judiciary Policy, Vol. 2A. Ch. 2, Canon 4A(3).

7 See Guide to Judiciary Policy, Vol. 2A. Ch. 2, Canon 4A(2); Advisory Op. No. 50.

8 See Advisory Op. No. 93.

9 Id. (referencing Advisory Op. No. 50 (suggesting that a judge should not testify before a legislative committee on social legislation)).

10 Id.

11 Id.

12 See Guide to Judiciary Policy, Vol. 2A. Ch. 2, Canon 5.

13 See Advisory Op. No. 93.

14 Id.

15 The Code of Conduct for Judicial Employees does not apply to Supreme Court Justices, federal judges, or employees of the United States Supreme Court, the Administrative Office of the United States Courts, the Federal Judicial Center, the Sentencing Commission, or the federal public defenders’ office, as each of these groups has its own codes and standards. See Guide to Judiciary Policy, Vol. 2A, Ch. 3, Sec. 310.10(b).

16 Guide to Judiciary Policy, Vol. 2A, Ch. 3, Canon 4.

17 Id., Canon 4(A).

18 Advisory Op. No. 92.

19 Guide to Judiciary Policy, Vol. 2A, Ch. 4, Canon 4.

20 5 U.S.C. §7211. See also https://www.afge.org/globalassets/documents/manuals/2021-lobbying-dos-donts.pdf

21 See https://www.dol.gov/sites/dolgov/files/SOL/files/How-To-Keep-Out-Of-Trouble_2021.pdf

22 18 U.S.C. §1913.