          Definition of “ Candidate” Under 18 U.S.C. §207(j)(7)
F or p u rp o ses o f the “ on b e h a lf of a can d id ate” exem ption contained in section 207(j)(7) o f title
    18, a successful candidate should be view ed as seeking office until the candidate assum es the
    office to w hich he o r she has been elected.

                                                                                               November 6, 2000

                                 M e m o r a n d u m O p in io n f o r t h e D ir e c t o r
                                        O f f ic e o f G o v e r n m e n t E t h i c s


   You have asked for our opinion regarding the application of the exemption con­
tained in 18 U.S.C. § 207(j)(7) (Supp. IV 1998) to the activities of certain former
executive branch employees who serve on a Presidential transition team. Specifi­
cally, you have asked us when an individual ceases to be a candidate for purposes
of this exemption.
   Subsection (c) of § 207 prohibits certain former officers or employees of the
executive branch from communicating on behalf of any person except the United
States, within one year of termination, with the department or agency in which
the officer or employee served. In the case o f certain “ very senior personnel of
the executive branch,” including the Vice President, subsection (d) extends this
ban to communications to certain high level officials in other agencies. Subsection
(j)(7)' provides an exemption from this restriction for individuals who commu­
nicate or appear solely on behalf of a candidate in his or her capacity as a can­
didate so long as, at the time o f the communication or appearance, the person
is not employed by a person or entity other than the candidate (except for a person
or entity who only represents or advises candidates). Subsection (7)(j)(C)(i)
defines the term “ candidate” to mean:

          [A]ny person who seeks nomination for election, or election, to
          Federal or State office or who has authorized others to explore on

  1 Subsections (j)(7)(A), (B) provide’
     (A) Except as provided in subparagraph (B ), the restrictions contained in subsections (c), (d), and (e) shall
     not apply to a communication or appearance made solely on behalf o f a candidate m his or her capacity
     as a candidate, an authorized committee, a national committee, a national Federal campaign committee,
     a State committee, or a political party
     (B) Subparagraph (A) shall not apply to —
     (i) any communication to, or appearance before, the Federal Election Commission by a former officer
     o r employee o f the Federal Election Commission; or
     (n) a communication or appearance made by a person who is subject to the restrictions contained in sub­
     sections (c), (d), o r (e) if, at the time o f the communication or appearance, the person is employed by
     a person or entity other than —
     (I) a candidate, an authorized committee, a national committee, a national Federal campaign committee,
     a State committee, or a political party, or
     (II) a person or entity w ho represents, aids, or advises only persons or entities described in subclause
    (I)
18 U.S C. § 207(j)(7)(A), (B).


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                          Definition o f “Candidate" Under 18 U.S.C. § 207(j)(7)


          his or her behalf the possibility of seeking nomination for election,
          or election, to Federal or State office.

18 U.S.C. § 207(j)(7)(C)(i).
   The exemption provided for in §207(j)(7) was added to the ethics statute in
August of 1996 by the Office of Government Ethics Authorization Act o f 1996.
See 110 Stat. 1566, 1567 (1996). At a minimum, the definition of “ candidate”
set forth in subsection (j)(7)(C)(i) explicitly establishes that a person holds the
status of a candidate so long as he “ seeks . . . election” to office. Ordinarily,
a candidate would be thought to seek election to an office up to the point at
which his or her election to that office is determined. In the case of the office
of President and Vice President, the actual election of the candidate takes place
through the electoral college. See U.S. Const, art. II, § 1 & amend. XII. After
the state electors cast their votes, the outcome of the election is declared by the
President of the Senate, who, in the presence of the entire Congress, counts the
votes. U.S. Const, amend. XII; see also 3 U.S.C. § 15 (1994) (after President of
the Senate counts the vote, his announcement will be deemed a sufficient declara­
tion of the persons elected to President and Vice President). You have informed
us that the votes of the electors will likely be tallied on January 6, 2001. See
also 3 U.S.C. § 15. Under the Constitution, until the votes of the electors have
been tallied and certified, all candidates for President and Vice President retain
their status as candidates. Neither the President nor the Vice President is
“ elected” until the conclusion of that procedure. See U.S. Const, art. II, § 1 &
amend. XII.
   You have noted, however, that “ even if a candidate continues to be a candidate
up to the day of the presentation of the electors’ votes to the Congress, this would
still leave a significant period of time in which transition activities will continue
prior to the day of the inauguration of the President.” Letter for Randolph D.
Moss, Assistant Attorney General , Office of Legal Counsel, from F. Gary Davis,
Acting Director, Office of Government Ethics at 2 (Oct. 6, 2000). Implicit in
your letter is the question whether a candidate for President or Vice President
can be deemed a “ candidate” up until the point of inauguration in order to permit
an orderly and effective transition from one elected official to another.2 The gen­
eral understanding of a “ candidate” is “ one that presents himself or is presented
by others . . . as suitable for and aspiring to an office.” Webster’s Third New
International Dictionary at 325 (1993). This is consistent with the statutory defini­
tion, which refers to a person who “ seeks nomination for election, or election.”
To “ elect,” in the context of an election to office, is generally defined as “ to

   2 We previously addressed the issue of whether the one year bar prohibiting certain former government employees
from contacting their former agency, contained in 18 U S.C. § 207(c), applied lo former government employees
who were working for the President-elect’s transition team See Applicability o f 18 U S C § 207(c) to President-
Elect's Transition Team, 12 Op. O.L.C 264 (1988) However, that advice predated the enactment of §207(j)(7)’s
exemption.


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                    Opinions o f the Office o f Legal Counsel in Volume 24


choose (a person) for an office,” and when used as an adjective ordinarily means
“ chosen for office or position but not yet installed.” Id. at 731. This would appear
to support a reading of the statute that would terminate a person’s status as a
candidate once the final selection had taken place, even though he or she had
not yet been sworn into office. As previously discussed, for a presidential can­
didate, this would occur on January 6th.
   However, in light of the legislative history and purpose of this statutory amend­
ment, giving the term “ candidate” its ordinary meaning in applying this exemp­
tion creates an irrational distinction between those communications made by
former government officials and employees on behalf of a candidate prior to that
candidate’s election and those communications that take place after the election,
when the candidate has become the President-elect or Vice President-elect. When
the literal interpretation of a statute would produce an absurd result, the words
at issue should be given alternative meaning to avoid such a consequence. Green
v. Bock Laundry Machines Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring).
See also South D akota v. Yankton Sioux Tribe, 522 U.S. 329, 346 (1998). In this
case, not only do the legislative history and purpose of this statutory amendment
support an application of the word “ candidate” that is broader in scope than its
ordinary meaning, extending until the person in question assumes office, but they
also make clear that a narrower interpretation would yield a bizarre result.

       The House Report to the ethics amendment explains that:

       The purpose of the post-employment restrictions for former staff
       is to prevent pecuniary gain by individuals due to a prior relation­
       ship within his or her former office. In the case of a leave of
       absence or resignation to work on a campaign, however, the
       ‘ ‘cooling-off ’ period should not apply.

H.R. Rep. No. 104-595, at 9 (1996), reprinted in 1996 U.S.C.C.A.N. 1356, 1364.
Accordingly, communications or appearances “ made solely on behalf of a can­
didate . . . are excepted from the post-employment restrictions.” Id. Congress
enacted this exception to ensure that the ethics statute did not have an unintended,
and wholly irrational, consequence. Without it, a person who worked for a member
of Congress or the President or Vice President, and then joined that person’s cam­
paign team, would have committed a criminal offense if he or she communicated
with that person or his or her staff within a one year period. As Senator Levin
explained:

       What we overlooked at the time was the situation where congres­
       sional staff and top executive department officials may leave their
       Government positions to work on the reelection campaigns of the

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                   Definition o f “ Candidate ” Under 18 U.S.C. §207(j)(7)


        persons for whom they worked while in the Government. For
        example, the administrative assistant of one of our colleagues may
        take a leave of absence and work on the reelection campaign for
        that same Member. If that happens, that administrative assistant
        should not be barred from contacting the Member or his staff on
        behalf of the campaign, since the interests of the campaign and
        the Member are really the same. Such a bar, which was never
        intended, would basically make such employment impossible.

142 Cong. Rec. 18,869, 18,871 (1996). Senator Cohen, in articulating his support
of the bill, made it clear that fear of a former government employee taking unfair
advantage of his access to his former office was not an issue:

        [L]eaving Government service to work on a campaign doesn’t
        involve the kind of abuse the revolving door rules are intended to
        address, that is, individuals trading on Government information and
        access for private gain.

Id. at 18,870. Representative Canady further articulated the principle behind the
amendment as

        one of allowing necessary communications integral to any cam­
        paign-related employment. Therefore, where the intention of the
        former employee is to participate in the electoral process subject
        to the narrow exception established by the protection of this bill,
        the revolving door restrictions of title 18 will no longer apply.

Id. at 12,943, 12,945. Senator Levin also emphasized that the amendment would
in no way undermine the general purposes of the ethics statute because:

       this bill would not permit [a] former staff person to contact his
       or her former office during the 1 year cooling off period on behalf
       of a client for whom he is serving as a lobbyist. The exception
       this bill makes is only for contacts by former staff on behalf of
       the campaign organizations of the Member or President-Vice Presi­
       dent for whom the staff person previously worked. This limitation
       avoids giving an otherwise reasonable exception an unintended
       consequence.

Id. at 18,871.
  Communications made by individuals who work solely for a candidate after
the election but prior to that candidate being sworn into office are equally as
unlikely to result in private pecuniary gain for the former government employee

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                           Opinions of the Office o f Legal Counsel in Volume 24


and serve the same legitimate purposes as communications made by such individ­
uals prior to the voting that determines the winner of the election. The purpose
of the subsection (j) exemption is to permit communications necessary to the cam­
paign-related responsibilities of the employee. In light of these concerns and poli­
cies, we can discern no rational basis, under the subsection (j) exemption, for
permitting a former government official to communicate with his former office
on behalf of a candidate prior to January 5th, but prohibiting that same commu­
nication after the candidate’s formal election on January 6th. In fact, it would
seem logical that the principles o f the ethics statute are even less at risk when
the communication is made exclusively on behalf of a President-elect, rather than
on behalf of a mere candidate for that office. To construe the statute to create
such a distinction would be to create an absurdity.3
   We acknowledge that the case of a former executive branch agency official
or employee who joins a President-elect’s transition team to assist with issues
related to his or her former agency presents a slightly different situation than a
former presidential, vice presidential or congressional staff member. In this situa­
tion, even absent the (j)(7) exemption, the former agency official would be able
to communicate freely with his or her “ candidate” and his or her candidate’s
office. Instead, the prohibition would apply to his or her communications with
another government agency with which the President-elect or Vice President-elect
presumably has an interest in dealing. Congress may not have had this precise
situation in mind when it passed subsection (j)(7). However, the policy behind
prohibiting a former government official from exercising undue influence on
behalf of a private client or otherwise trading on government information or access
for private gain, which is the concern expressed by Congress in the legislative
history of the amendment, simply does not apply in this context either.
   In sum, permitting an employee successfully to carry out his or her transition
responsibilities may be even more crucial to the effective operation of our political
system than the need to permit an employee to fulfill his or her campaign respon­
sibilities. As we have previously acknowledged, the orderly transfer of the execu­
tive powers “ is one of the m ost important public objectives in a democratic
society.” 12 Op. O.L.C. at 264. The transition period insures that the candidate
will be able to perform effectively the important functions of his or her new office
as expeditiously as possible. Therefore, to give full effect to the clear congres­
sional intent behind subsection (j), it is apparent that individuals who otherwise
meet the specifications and limitations of § 207(j)(7)(A) & (B) should be deemed
to be communicating on behalf o f a “ candidate” through the point at which that
“ candidate” assumes the office to which he or she was elected.4 In other words,

   3 This conclusion is consistent with our discussion o f the purpose of the Act contained in the opinion cited in
footnote 2.
   4 C ertainly the same policy concerns do not apply to a candidate who is not elected to the office which he or
she seeks Rather, a candidate who is not elected to office would lose his or her status as a candidate at the point
the outcom e o f the election was finalized


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                   Definition o f “Candidate " Under 7 8 U.S.C. §207(j)(7)


for purposes of §207 (j), a successful candidate should be viewed as seeking
office until he or she actually assumes that office. After that point, any commu­
nications by the former employee on behalf of the office holder will be commu­
nications on behalf of the “ United States,” and therefore exempt from the prohibi­
tions of the Act. See 18 U.S.C. § 207(c)(1).

                                                           RANDOLPH D. MOSS
                                                         Assistant Attorney General
                                                          Office o f Legal Counsel




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