Should doctors in Congress earn money for their side job? – Roll Call

Andy Harris has a line he likes to give his House colleagues when the issue of outside employment is raised.

“I tell members, tongue-in-cheek, that I could flip burgers at McDonald’s and earn additional income. But I can’t do it practicing my profession,” said the Maryland Republican, an anesthesiologist by training, in a recent interview.

He’s mostly right. 

Technically, either side hustle, burger flipping or administering anesthesia, is permissible. And until a few years ago, Harris still practiced medicine. But House rules and federal ethics laws make it difficult. 

House members who practice medicine can’t take in more money than they pay in professional and administrative fees, like malpractice insurance. Some members offer pro bono services in an effort to keep practicing and maintain their credentials without running afoul of the law. 

For Harris, a member of the GOP Doctors Caucus, “it just became too complicated.”

He’s now hoping to make it less complicated. Harris is advocating language in the fiscal 2025 Legislative Branch spending bill that would clarify the right of medical professionals to work for compensation while in Congress — though they would still be beholden to an annual second-income cap, which in calendar year 2023 was $31,815, according to the House Ethics Committee. 

Despite concerns from Democrats that the carve-out could create potential conflicts of interest and privileges a small subset of members, the language was included in the bill that the House Appropriations Committee advanced last week. 

“We’re not debating whether or not members can earn money outside of Congress. They do and they can,” said Harris, who served in the Navy Medical Corps and worked for nearly three decades at Johns Hopkins Hospital. “The question is whether you can do it in a health care profession.”

In part, the language is meant to eliminate some of the murkiness that has surrounded medical providers in Congress for decades, which began with the passage of the Ethics Reform Act of 1989. That law prohibited members from engaging in “a profession which involves a fiduciary relationship for compensation” but failed to define what professions fall under the fiduciary prohibition. 

In the late 1990s, the House Ethics panel determined that the doctor-patient relationship should be considered fiduciary, but it allowed congressional doctors to continue earning money as long as “fees or other payments for medical services … do not exceed the ‘actual and necessary expenses’ incurred by the Member during the year in connection with the practice.” Members are required to submit annual financial disclosures listing out total compensation and the cost of things like malpractice insurance and office expenses.

The panel, then led by James V. Hansen, R-Utah, and Howard L. Berman, D-Calif., also made it clear that members may not earn income from outside work in law, real estate or insurance. 

A few years later, in 2003, the House amended its rules to specifically exempt medical practice from the fiduciary prohibitions, according to the House Ethics manual. But the federal statute was never changed, and congressional doctors remained in legal limbo.

According to Harris, the appropriations rider would fix that by adding a fiduciary exemption for medical and dental providers to the U.S. Code. That would offer clarity, argued Harris, a senior appropriator who leads the committee’s Agriculture subpanel. He championed a similar provision in the fiscal 2024 Legislative Branch bill that was ultimately stripped out. 

Democratic opposition

The proposal has raised the hackles of Democratic appropriators, who say it would create a tailor-made “loophole.” 

“I agree that medical professionals deserve to be paid their fair share when they’re doing medical work, but members of Congress have to be held to the highest standard,” Rep. Debbie Wasserman Schultz said at last week’s markup. “And knocking down congressional ethics rules and second-income rules for just one class of members is deeply concerning.”

Such a change might “create opportunities for quid pro quo and can incentivize members to put side jobs ahead of their elected roles,” the Florida Democrat added.

House Appropriations ranking member Rosa DeLauro said the provision could open “the door to changing the rules we must all follow when it comes to external professions unfairly benefiting certain members and potentially creating conflicts of interest.” A Democratic amendment would have stripped the language from the bill, but it was defeated on a party-line vote. 

Kedric Payne, vice president, general counsel and senior director of ethics at Campaign Legal Center, said he wasn’t particularly alarmed by the proposed change, in part because it only clarifies a carve-out that’s existed for decades. 

“I’m not too concerned right now, because medicine has always been an occupation that’s been treated differently, since the beginning of this prohibition on fiduciary relationships,” Payne said. 

The debate over second income comes as some lawmakers have recently drawn fire for their liberal use of a newly implemented reimbursement program that allows members to be paid back for certain living expenses associated with their time in Washington. It also comes amid an ongoing debate over how much members should be compensated for their work in Congress and whether they deserve their first increase in pay in more than a decade. 

Most lawmakers make $174,000 annually, which some argue isn’t enough. Harris’ Maryland delegation colleague Steny H. Hoyer once again pushed for a pay bump this year, warning that Congress could lose talent to other professions and only “rich people” might choose to serve. But language to block the cost of living adjustment, or COLA, made it into the House Legislative Branch bill that advanced out of committee last week.

Harris estimated that 20 to 30 members would be affected by the medical services provision if it were enacted. The GOP Doctors Caucus counts 19 members, although many are no longer practicing. At least a few Democrats, like Reps. Ami Bera and Raul Ruiz of California and Yadira Caraveo of Colorado, also hold medical degrees.

Ohio Republican Rep. Brad Wenstrup, a podiatrist and co-chair of the GOP Doctors Caucus, said the provision could help recruit more doctors to Congress, or at least remove a deterrent for those in the medical field.

“When I first came in, they said, ‘These are all the rules you have to live by here in Congress. And if you’re a doctor, we’ve got more rules.’ What the heck is that?” Wenstrup said. “It affects people’s decision to run or not.”

“At a time when you actually need health care providers, why would you want to disallow members of Congress from doing it?” Harris said.