Applicability of Emoluments Clause to "Representative" Members of Advisory Committees

Applicability of Emoluments Clause to “ Representative”
Members of Advisory Committees
T he E m olum ents C lause o f the Constitution does not apply to “ representative” m em bers o f advisory
co m m ittees, that is, m em bers who are chosen to present the view s o f private organizations and
interests.
September 2, 1997
L e t t e r O p in io n for th e G eneral C ou n sel
U n it e d S t a t e s T r a d e R e p r e s e n t a t i v e
This is in response to your inquiry about the application of the Emoluments
Clause, U.S. Const, art. I, §9, cl. 8, to members of advisory committees. The
Clause forbids anyone “ holding any Office of Profit or Trust” under the United
States from accepting, without the consent of Congress, “ any present, Emolument,
Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
In 1991, we expressed the categorical opinion that members of federal advisory
committees hold offices of profit or trust within the meaning of the Clause.
A pplicability o f 18 U.S.C. §2J9 to Members o f Federal Advisory Committees ,
15 Op. O.L.C. 65, 68 (1991). However, we later receded from that sweeping view
and concluded that “ not every member of an advisory committee necessarily
occupies an ‘Office of Profit or Trust’ under the Clause.” Letter for Conrad K.
Harper, Legal Adviser, Department of State, from Walter Dellinger, Assistant
Attorney General, Office of Legal Counsel (Mar. 1, 1994). Later, we specifically
determined that members of the State Department’s Advisory Committee on Inter­
national Economic Policy did not hold such offices because those members “ meet
only occasionally, serve without compensation, take no oath, and do not have
access to classified information,” and because “ the Committee is purely advisory,
is not a creature of statute, and discharges no substantive statutory responsibil­
ities.” The A dvisory Committee on International Economic Policy , 20 Op. O.L.C.
123, 123 (1996).
In light of these refinements to our position, we now believe that “ representa­
tive” members of advisory committees are not covered by the Clause. Such rep­
resentatives are chosen to present the views o f private organizations and interests.
Under well-established precedents, a representative is not an “ officer or
em ployee” of the United States under the conflict of interest laws: “ ‘[0]ne who
is requested to appear before a Government department or agency to present the
views of a non-governmental organization or group which he represents, or for
which he is in a position to speak, does not act as a servant o f the Government
and is not its officer or employee.’ ” Memorandum to Heads of Departments and
Agencies of the Executive Branch, from J. Jackson Walter, Director, Office of
Government Ethics, reprinted in Informal Advisory Letters and Memoranda and
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Applicability o f Emoluments Clause to ' 'Representative ’' Members o f Advisory Committees
Formal Opinions 1979-1988, at 330 (1982) (quoting Memorandum of the Presi­
dent, Preventing Conflicts o f Interest on the Part o f Special Government
Employees (May 2, 1963)). It would be exceedingly incongruous if, as we have
concluded, special government employees on some advisory committees do not
occupy offices of profit or trust under the Clause, but representatives who are
not even employees are covered. Because representatives owe their loyalty to out­
side interests and are not “ servantfs] of the Government,” they do not, in our
view, hold offices of profit or trust under the United States.
RICHARD L. SHIFFRIN
Deputy Assistant Attorney General
Office o f Legal Counsel
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