Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
November 27, 2015

Posts by C. Simon Davidson

39 Posts

October 20, 2015

FEC Clarifies Rules for Food and Drink at Fundraisers | A Question of Ethics

Q.  As someone who has worked on campaigns for Members of the House for many years, I have a question about campaign fundraisers. I had always thought that when donors attend a fundraiser where food and drink are served, their entire ticket price counts as a contribution from the donor. I heard recently though that when donors pay for the cost of food and drink they enjoy at a fundraiser, campaigns do not have to treat the payments as contribution. That seems rife for abuse. Is it true?

A.  Yes and no. A recent opinion issued by the Federal Election Commission says that, in limited circumstances, donors may pay for food and drink at campaign fundraisers without the payments counting as “contributions.” But, the circumstances in which this is permissible are narrowly defined, so be careful.

As you know, federal election law requires campaigns to record and disclose the source and amount of contributions they receive. It also imposes strict limits on the amounts that individuals may contribute to a campaign. In the current election cycle, an individual donor may contribute no more than $2,700 to a candidate’s committee, per election.

Candidates of course raise a substantial portion of funds via fundraising events. Typically, when a candidate’s committee hosts a fundraiser, the committee treats the full price of each ticket as a contribution from the purchaser. Federal law defines a contribution as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” “Anything of value” includes an in-kind contribution, as well as “[t]he entire amount paid to attend a fundraiser or other political event.”

Hillary Rodham Clinton’s campaign committee recently asked the FEC to clarify application of these rules to fundraisers where ticket prices do not include food, drink, and valet parking services, but instead attendees have the option to purchase their own such food, drink and parking services while in attendance. In making the request, the committee’s attorney argued that attendees’ payments for their own food, drink and parking, at their own discretion, should not count as contributions. “If an event attendee purchases a hot dog at a cart that happens to be set up outside of a Campaign event,” he wrote, “clearly the payment for the hot dog is not considered an in-kind contribution to the Campaign.” On-site purchases of food and beverages, he argued, should be no different.

The FEC agreed. Under the circumstances described in the campaign committee’s request, the commission said, payments for food, drink and valet parking do not count as contributions to the committee.

In reaching its conclusion, the commission first affirmed that if a committee includes the cost of food or beverages in the charge that donors must pay to attend the event, an attendee’s payment of that charge constitutes a contribution as a payment “to attend a fundraiser. The commission also warned that its conclusion about the treatment of attendees’ payments for their own food and beverage was based on the campaign committee’s representation that there would “not be any monetary consequences” to the committee related to whether fundraiser attendees chose to purchase food or beverages.

This point is significant, and the FEC took it to mean that whether attendees purchase or do not purchase food at the fundraiser would “not in any way affect the Committee’s costs for the event.” Thus, for example, the event venue could not offer the committee any discounts based on attendees’ actual or anticipated purchases of food and drink. And, there could not be a minimum charge for food and drink that the committee would be obligated to pay if attendees did not purchase enough food and drink. “Assuming that attendees’ purchases do not factor into the pricing of these or other charges to the Committee,” the commission said, “the purchases by attendees of their own food or beverages would not constitute in-kind contributions.”

The reasoning as to valet parking services was similar. The committee had told the commission that it did not plan to request the provision of valet parking services at the fundraiser. Thus, the commission concluded, “the attendees’ payments for their own valet parking will not relieve the Committee of expenses it would not otherwise incur, and those payments therefore will not be in-kind contributions.”

For campaigns looking to get the most bang for their buck out of fundraisers, this is good news. Provided they comply with the commission’s criteria, it’s one less expense to incur when hosting a fundraiser.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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September 8, 2015

Can Bartering Official Acts Ever Be Legal? | Question of Ethics

Q. I am hoping you can explain the recent ruling on Rod Blagojevich’s appeal of his corruption convictions. I know that the court upheld nearly all of his convictions, but I was interested to see that the court threw out several as well. Why did it do this, and is there any significance to the decision?

A. Some political trades are legal. Some are not. That distinction is at the heart of last month’s decision by the Seventh Circuit Court of Appeals in the case of former Illinois Gov. Rod Blagojevich.

Full story

July 14, 2015

What Does Bob McDonnell’s Case Mean for Members and Staffers? | Question of Ethics

Q. I am not an attorney, but I have several friends who are, and they seem to think that the latest development in Bob McDonnell’s legal case is significant. I know that McDonnell lost the appeal of his conviction on corruption charges. But, can you explain the legal significance of the case to a non-lawyer like me? Should it mean anything to those of us on the Hill?

A.  Yes, it should. Though Bob McDonnell was a state government official — governor of Virginia — he was tried in federal courts by federal prosecutors for violations of federal laws, the same laws that apply to government officials all around the country, including members and staffers on the Hill. Therefore, the recent decision by the 4th U.S. Circuit Court of Appeals in Richmond, Va., to reject McDonnell’s appeal could have consequences well beyond Virginia.

The issue in the case that many attorneys have been watching closely is what kinds of actions are covered by federal prohibitions on bribery. Federal law provides that public officials may not corruptly demand, seek or receive anything of value “in return for … being influenced in the performance of any official act.”

In the McDonnell case, there was little dispute that he and his wife received things of value from a Virginia businessman, including loans, trips, a Rolex watch and more. At issue was whether the gifts were part of an agreement between McDonnell and the businessman to obtain influence over anything that would qualify as an official act.

The government contended McDonnell took many acts to help the businessman’s efforts to launch a new health product. McDonnell argued on appeal, however, that nothing he did to help the businessman could be considered an official act under the law. The government’s refusal to distinguish “between official acts, and every other act an official takes,” McDonnell’s appeal brief said, “led it to indict and convict Governor McDonnell for conduct that has never been criminal.” The government’s “boundless definition” of official act, the brief said, “would make virtually every elected official … a criminal.”

Other former officials voiced similar concerns, including a group of 44 former state attorney generals, who filed a brief in support of McDonnell’s appeal. The court that convicted McDonnell “handed federal prosecutors virtually unfettered discretion to prosecute state officials for political courtesies and other innocent acts that are a routine part of American political life,” the brief argued. “No lunch with a lobbyist is safe.”

The appeals court disagreed, stating, “what the Government had to show was that the allegedly corrupt agreement [between McDonnell and the businessman] carried with it an expectation that some type of official action would be taken.” Whether McDonnell actually took such action was beside the point, the court said. Nevertheless, the government exceeded its burden, the court concluded, by showing McDonnell used the power of his office to influence governmental decisions in three matters within his “sphere of influence” — whether researchers at Virginia’s state universities would initiate a study of the product the businessman sought to launch; whether a state commission would allocate grant money to study one of the product’s key ingredients; and whether the health insurance plan for state employees would include the product in its coverage. With respect to studies by university researchers, for example, the court said McDonnell took steps such as “asking a staffer to attend a briefing, questioning a university researcher at a product launch, and directing a policy advisor to ‘see’ him about an issue.” By doing so, McDonnell “exploited the power of his office in furtherance of an ongoing effort to influence the work of state university researches.” This was “more than enough to support the jury’s verdict,” the court said.

It is possible that the Supreme Court could still reverse the 4th Circuit Court’s decision. And, even if it does not, the legal consequences of the decision remain to be seen. Some attorneys have disputed whether the impact will be as drastic as others have feared.

Nevertheless, there is one issue on which there seems to be a consensus: unless overturned, this type of victory in a high-profile public corruption case could embolden federal prosecutors to pursue future cases that test the limits of what counts as an official act for purposes of federal restrictions on bribery. Members and staffers take note.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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June 23, 2015

Are Lobbyists Banned From House and Senate Gyms? | A Question of Ethics

(CQ Roll Call File Photo)

A walking machine at the House Fitness Center. (CQ Roll Call File Photo)

Q. I am a former officer of the House now working as a lobbyist in Washington, D.C. I love my job, but sometimes wonder if we lobbyists are unfairly singled out and discriminated against. One example I recently learned about is that former members and officers who become lobbyists are apparently not allowed to use House exercise facilities, while other former members and officers are. Is this really true?

A. Lobbyists do get a bad rap, don’t they? At the federal level, many laws impose restrictions that apply to lobbyists but not to anyone else. And, in states, it can be even worse, where “lobbyist” can verge on being a bad word. Some states even require lobbyists to wear the virtual equivalent of a scarlet “L” whenever they are engaged in lobbying. Connecticut, for example, requires anyone engaged in lobbying to wear a badge identifying themselves as a lobbyist, with the “color, material, and other requirements of such badge … prescribed by regulation.” In 2011, a lobbyist was fined $10,000 for lobbying without a badge.

So, what about House exercise facilities? Full story

June 2, 2015

May Judicial Candidates Be Prevented From Seeking Campaign Funds? | A Question of Ethics

Q. I just read that in some states, people running for judicial positions may not seek contributions to their campaigns. This struck me as nonsensical, but the article said that the U.S. Supreme Court recently upheld the prohibition. Is it really the case that states prohibit judicial candidates from seeking campaign contributions? And, why would the Supreme Court allow these prohibitions?

A. You are campaigning for office, but you cannot seek money for your campaign. That would put a bit of a damper on things for our nation’s politicians, wouldn’t it?

Full story

April 28, 2015

May a Staffer Ask for a Free Meal? | A Question of Ethics

Q. I do not work on the Hill, but I have several friends who do, and I have a question about when it’s okay to buy them a meal. I had lunch the other day with a chief of staff of a member of the House of Representatives. He forgot his wallet and so asked if I could by lunch. I don’t know anything about government ethics rules, but he said it was fine because the rules allow staffers to accept meals and gifts worth less than $50 from anyone other than a lobbyist, and our tab was $40 after tip. I went ahead and paid based on this, but I later asked another staffer, and he said it was probably not okay for me to have done so. What gives?

A. Thanks for the great question, which illustrates a limitation on the exceptions to the gift rule that can be easy to overlook.

Full story

April 14, 2015

What Are the Charges Against Menendez? | A Question of Ethics

Q. As a resident of New Jersey, I have seen many different perspectives on the recent indictment of Bob Menendez. Some here in New Jersey are supporting him, while others have called for his resignation. What I want to know is what exactly the charges are against Menendez and what the government needs to prove. I’ve generally heard it referred to as a bribery case, but are there any other charges against Menendez? Full story

March 17, 2015

May Lobbyists Lobby Their Spouses? | A Question of Ethics

Q. I read that Rep. [Edward] Whitfield, R-Ky., is under investigation for allowing his wife to lobby his office on behalf of her employer. Is it illegal for someone to lobby their spouse? And if so, does that mean lobbyists who are married to Members of Congress cannot discuss policy with their spouse or have any contact with their spouse’s staff? That sounds like a difficult rule to follow. Is it really the case?

A. Last November, the House Ethics Committee announced it had decided to conduct a more in-depth review of allegations that Whitfield broke ethics rules by permitting his wife to lobby himself and his staff. The committee had been referred the matter by the Office of Congressional Ethics, which investigates ethics complaints to determine those that warrant further review by the committee. In accordance with ethics rules, when the committee announced its decision, it also released the OCE’s investigative report, which explains the allegations against Whitfield.

Full story

March 3, 2015

What Is All the Fuss About Campaign Coordination? | A Question of Ethics

Q. Some friends of mine who are lawyers were recently discussing a political corruption prosecution that they seemed to think was a big deal. I believe it involved some sort of campaign finance violations by the campaign manager of someone who ran for Congress a few years back. As a non-lawyer, it wasn’t clear to me what all the fuss was about. After all, people get prosecuted for political corruption all of the time. Are you aware of the case I’m describing, and, if so, what makes it such a big deal?

A. I believe I am. Last month, the Department of Justice announced a political operative named Tyler Harber pleaded guilty to crimes stemming from campaign finance improprieties in the 2012 federal election. The DOJ’s press release said, “This is the first criminal prosecution in the United States based upon the coordination of campaign contributions between political committees.”

OK, fine, but what does that mean?

To understand, it helps to review some background on campaign finance law and the types of committees that raise money for political spending. Candidates in congressional elections typically establish candidate committees to raise funds for their campaigns. The law imposes strict limits on the amount of money a candidate’s committee may receive from a given individual. Currently, for each election an individual may not contribute more than $2,600 to a candidate committee.

Corporations may not contribute at all. The idea is to prevent any single donor from currying undue influence over members of Congress by contributing large amounts of money to help them get elected.

While the Supreme Court allows these limits on contributions to candidate committees, it has struck down other limitations on political spending as violations of the First Amendment’s right to free speech. Notably, the law imposes no limits at all on an individual’s own expenditure of money to advocate the election of a particular candidate, so long as the expenditure is made independently of the candidate and the candidate’s committee. These are known as “independent expenditures.” While there is no limit on how much anyone may spend on an independent expenditure, individuals who make such expenditures must report them and disclose the sources of funds used for the expenditure.

The law also allows the formation of independent-expenditure-only political action committees, which are known as super PACs. There are no limits on the amounts of money super PACs may spend on advocating the election of a candidate or the amounts they may accept from any particular donor. The key, again, is they must not coordinate with a candidate or a candidate’s committee.

As you can see, a lot turns on what counts as “coordination.” According to federal law, a communication is coordinated if it is “made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee or their agents, or a political party committee or its agents.”

Which brings us to the Harber case. In 2012, Harber was the campaign manager for Republican Chris Perkins, who unsuccessfully challenged incumbent Virginia Democratic Rep. Gerald E. Connolly for his congressional seat. According to court documents, during the campaign Harber started a super PAC which, records show, was called National Republican Victory Fund. While serving as campaign manager for Perkins, Harber “made and caused” $325,000 in coordinated expenditure contributions from the super PAC to Perkins’ campaign committee.

After a wealthy donor made the maximum legal contribution to Perkins’ campaign committee, Harber directed the donor to contribute to the National Republican Victory Fund. The donor contributed $300,000, and Harber bought $325,000 in ads opposing Connolly’s re-election. Harber then took steps to cover up his involvement including lying about it to the FBI when the bureau interviewed him while investigating the matter in 2013.

He pleaded guilty to two offenses: making illegal coordinated contributions and making false statements to the government. His sentencing is scheduled for June, and for each offense, he faces up to five years in prison and fines up to $250,000. By pleading guilty and agreeing to cooperate with the government, Harber may of course receive a reduced penalty. But, his case is nevertheless a reminder that coordination is illegal. This may have been the first prosecution for coordination between campaign committees. But, it will not be the last.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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February 17, 2015

Can Selling Something Be an Ethics Violation? | A Question of Ethics

(Tom Williams/CQ Roll Call File Photo)

(Tom Williams/CQ Roll Call File Photo)

Q. I read that Rep. Aaron Schock, R-Ill., may face an ethics investigation for selling his house for too high a price. As a longtime House staffer, this worried me. I’ve sold several big-ticket items over the years — cars, a boat, houses, and while I’ve always tried to make sure that the selling price is not too low, it never occurred to me to ensure that the price is not too high. Can it really be an ethics violation to get too good of a deal on something I sell?

A. Good question. In theory, it is conceivable that selling something could give rise to an ethics violation. House gift rules prohibit members and staffers from accepting anything of value — including money — unless an exception applies. One of the exceptions allows receipt of something for which the recipient pays market value. Conversely, the House Ethics Manual says an improper gift may exist when a member or staffer is sold property at less than market value, “or receives more than market value in selling property.” Full story

February 3, 2015

Bundling Campaign Contributions Is Legal, but Carries Risks | A Question of Ethics

Q. I read about a recent court case where a lobbyist was sent to jail for arranging for a large group of people to make contributions to the campaign of Sen. Harry Reid, D-Nev. I had always thought that it was okay for someone to help organize a big group of campaign donors. Isn’t this known as “bundling,” and isn’t it legal?

A. Yes and yes. Bundling is a common practice and is, in fact, legal. But, the case you’re describing involved not merely bundling, but a more nefarious practice.

First, let’s talk about bundling. As you know, a bundler is someone who gathers campaign contributions from people within a particular organization or community and presents them to a campaign. Campaigns value bundlers for their connections and ability to drive large amounts of revenue. Broadly speaking, with some limitations, bundling is legal.

One of the reasons bundling can be important is because the law limits the amount of money an individual can contribute to a particular campaign. The idea is to prevent individuals from having undue influence over a candidate. In light of the limits, sometimes a supporter tries to help a candidate by encouraging other individuals to contribute to the candidate’s campaign. In 2007, Congress enacted legislation recognizing the practice of bundling, but requiring lobbyists who bundle contributions to make public filings disclosing the contributions they bundled.

None of this is at issue in the recent case you describe, in which a federal appeals court in Nevada upheld convictions of a Nevada man who did something much different than mere bundling. The case involved F. Harvey Whittemore, whom the court described as a “prominent attorney, developer, and lobbyist who has long been active in Nevada politics and political fundraising.” In 2007, Whittemore promised to raise $150,000 in contributions for Reid’s 2010 re-election, and told the campaign he would do so by a specific campaign finance filing deadline. Shortly before the deadline, the campaign still had not received any of the money Whittemore promised, and twice contacted him about it.

So far, so good.

Just days before the deadline, however, Whittemore gave $145,000 to 17 relatives and people he employed. Those who were single received $5,000, married couples received $10,000. Each individual recipient then contributed $4,600 to Reid’s campaign — the maximum amount permitted by law. Whittemore assembled the contributions and sent them all to Reid’s campaign, just beating the deadline.

Recipients of the money from Whittemore testified that he encouraged them to contribute to Reid’s campaign or, in some cases, actually told them the money he gave was intended to cover a contribution to the campaign.

This is not mere bundling. Rather, a jury in Nevada federal court concluded it is illegal circumvention of the limits on campaign contributions. Specifically, the court convicted Whittemore of violating the limits on his own campaign contributions as well as a statute that forbids making a contribution in the name of another.

The recent news about the case concerned the federal appeals court’s rejection of Whittemore’s appeal. While Whittemore’s attorneys made several arguments on appeal, a key one was that the money he gave to friends and employees was an “unconditional gift.” In short, the argument went, the transfers were gifts with no strings attached. As such, because the money became the recipients’ own money, and because Whittemore did not condition the gifts on any subsequent campaign contributions, he had not violated the campaign finance restrictions, even if he suggested that recipients consider making contributions.

The appeals court rejected the argument. It concluded that the key issue “is the source of the funds, regardless of the status of the funds under state property law at the time of the donation.” The jury had determined that Whittemore knew the named contributors were not in fact the “true source” of the contributions. Whittemore’s transfers of money to the recipients, the court said, amounted to “contributions” under federal law.

Whittemore was sentenced to two years in jail. Legitimate bundlers of campaign contributions need not worry about facing a similar fate. But, bundlers better make sure the money they are bundling is not really their own.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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January 20, 2015

May Staffers Participate in SOTU Gambling Pools? | A Question of Ethics

Q. I’m a longtime House staffer, and every year for the State of the Union address I host a party with a big group of friends, including many other staffers. One of the most popular traditions at the party is a “word pool” where guests are all assigned certain words at random, and the winner is whoever’s words are heard most often in the address. (I won’t mention what this year’s magic words are.) I always send around emails in advance to administer the pool and solicit entries. This year, one of the invitees told me I shouldn’t be sending these emails from work, using House email addresses. Does this really matter?

A. As a lawyer, I can tell you that we lawyers hate to say no. If the law prohibits a client’s proposed course of conduct, we like to try to find other ways clients can achieve their goals without running afoul of the law. In this case, however, I have to take the unpopular role of party-pooper and say your friend is probably right. I don’t make the rules. I just report on them. And, technically speaking, the rules do in fact prohibit running betting pools on government time with government resources, even one as innocent as this. Full story

January 6, 2015

May Former Staffers Discuss Legislation With Current Staffers? | A Question of Ethics

Q. I have just completed more than a decade of service as a House staffer and am now preparing for a job in the private sector. I know there are rules about what I can and cannot do, and I am trying to make sure I understand them all. I am particularly concerned about restrictions on my communications with former staffers, as I have many friends on the Hill whom I am sure I will still often see. I know I can’t lobby them during the cooling off period, but what if I run into some of them, we start talking shop, and they ask what I think about a proposed bill? Am I not allowed to answer?

A. It happens every two years. A host of new members and staffers arrive on the Hill, while a host of old ones move out. And, just as the newbies must quickly learn rules governing congressional employees, those moving into the private sector must familiarize themselves with the restrictions on former Hill staffers. There are many, so you are wise to be concerned.

The specific restrictions you’ve asked about apply during the “cooling-off period” and limit what members and staffers can do within one year of leaving the House. As you may know, the restriction does not apply to all staffers, only to those whose salary is at least 75 percent of members’. I’ll presume this includes you, but mention it just in case.

Several activities are prohibited during the cooling-off period, including, for example, lobbying a federal official on behalf of a foreign government. Your question concerns the restriction on communications with members and staffers during the cooling-off period. It provides that you may not communicate or appear before any member, officer or employee of the House or Senate with the intent to influence, on behalf of any person, the official actions of the member, officer or employee. The restriction bars “certain types of contacts with certain categories of officials,” says the House ethics manual, “basically former colleagues and those most likely to be influenced on the basis of the former position.”

Last month, the House Committee on Ethics issued guidance on post-employment restrictions, clarifying what former staffers may and may not do during the cooling-off period. It cautions that the term “communication” is defined very broadly for purposes of the restrictions. Specifically, a communication is “the act of imparting or transmitting information with the intent that the information be attributed to the former official.”

The memorandum also sets forth several helpful fact patterns. For example, suppose that during your cooling-off period you were to call a current member and request that she meet with one of your clients. This, the memorandum states, would violate the restriction even if you did not intend to be present at the requested meeting. The request itself, the guidance states, would be a communication intended to influence official action.

The guidance also includes an example addressing a circumstance similar to the one you raise. It concerns a former member who had become a lobbyist and was asked by a current member about the views of one of the lobbyist’s clients on a pending piece of legislation. According to the ethics committee’s guidance, the lobbyist may not respond by stating the client’s views to the member. “There is no exception in the statute for covered communications that are solicited by a current Member or staff person,” the guidance states. In other words, if a communication meets the definition of forbidden communications, it is illegal regardless of whether it came in response to a question by a member or staffer.

This raises an obvious question. During the cooling-off period, what can you say if a member or staffer asks for your client’s views on pending legislation? The memorandum issued last month has an answer. “It may be permissible,” the memorandum says, to refer the member or staffer to one of your colleagues who is not subject to post-employment restrictions.

By the way, I know you didn’t ask about the penalties here, but they are worth mentioning as they are no small deal. A violation of the cooling-off period restrictions is a federal crime, punishable by up to one year in jail and a $50,000 fine. You’re right to be careful.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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December 9, 2014

The Year in Government Ethics | A Question of Ethics

the trial and convictions of former Virginia Gov. Bob McDonnell and his wife, Maureen, stood out among the biggest ethics stories of the year. (Bill Clark/CQ Roll Call File Photo)

The trial and convictions of former Virginia Gov. Bob McDonnell and his wife, Maureen, stood out among the biggest ethics stories of the year. (Bill Clark/CQ Roll Call File Photo)

As long as there are governments, there will be government corruption. The temptations to abuse power are never going away, and neither is human frailty, which means government ethics will remain an important issue for, well, forever.

A look back on 2014 reveals yet another year of explosive government ethics stories, scandals and legal developments. As has been the custom for the year’s final column, I asked several of the top practitioners in the field to name the biggest government ethics stories of the year. Full story

November 11, 2014

What Does a Gift Tag Have to Do With Breaking the Law? | A Question of Ethics

Q. I worked on the campaign of someone who has just been elected to the House of Representatives for the first time, and I expect to work for him in the House as well beginning in January. I recently met with some experienced staffers to learn the ins-and-outs of working on the Hill. One thing they filled me in on is how strict the gift limitations are, but what really stuck out was that the permissibility of a gift supposedly can depend somehow on the language of the tag or card that comes with it. I had trouble wrapping my head around this. Is this really true?

A. First, congratulations to you and your boss. Exciting times ahead.

As for your question: Yes, believe it or not, the language on a card attached to a gift can impact the legality of accepting it. In fact, some language on a gift tag could expose you and the donor to serious liability.

There are several sources of the limitations on gifts and other benefits members and staffers may receive, and it is important to consider them all any time you are offered a gift. One is the House gift rule. Broadly, the gift rule forbids you from accepting anything of value from anyone unless an exception applies. There is a long list of exceptions, including things such as gifts from family members, widely available opportunities and more. You should certainly familiarize yourself with the rule and the exceptions as you prepare for your job on the Hill.

But, complying with the law doesn’t end there. Just because a gift meets an exception to the House gift rule does not mean that it might not violate some other restriction. Bribery law, for example, criminalizes gifts given to influence an official act regardless of whether they might meet a gift rule exception.

The law that it sounds like the staffers you met with have in mind is a subsection of the federal bribery statute governing what have become known as “gratuities.” It provides that, as a government official, you may not accept anything of value given because of an official act you perform. Some have described it as a prohibition on a reward for an official act that has already been performed. The Supreme Court has said what makes a gratuity illegal is “a link between a thing of value and a specific official act for or because of which it was given.”

What does this have to do with gift tags? The House Ethics Manual has a few examples to illustrate.

Suppose you help introduce a bill, and you do so solely because you and your member believe it will be good for the country. Suppose also that there is a lawyer who favors the bill because it will benefit some of his clients. The lawyer sends you a small gift that meets one of the exceptions to the House gift rule, and attaches a note stating, “In appreciation for your good work on the bill.” According to the ethics manual, this would violate the ban on gratuities, and you would have to return the offering in question to the lawyer.

Another example involves a caseworker who helps a constituent with a Veterans’ Affairs claim. The following week, the constituent sends a modest restaurant gift certificate, with a note saying: “I’ll never be able to repay you for what you’ve done for me.” Again, the manual says this is an illegal gratuity and the caseworker must return it to the constituent.

In contrast, suppose during the holidays you receive a small gift from a lawyer that again meets one of the exceptions to the gift rules. This time, the gift tag says, “Season’s Greetings to you and peers!” Accepting this gift, the manual says, “is not prohibited by the bribery and illegal gratuity statutes.” This is because there is no apparent link between the gift and any official act.

Does any of this really matter? Yes.

Violations of the bribery and gratuity statues are federal crimes, and carry stiff penalties including fines and jail time. Several members who have been convicted of violations of the gratuity ban have gone to jail.

So, as you tackle all of the tasks that you and your member must accomplish to prepare for your time on the Hill, here’s one more to add to your to-do list. Learn the rules about gifts, bribery, and gratuities. They matter. And, some of them may surprise you.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.


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