Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
August 31, 2015

Posts in "Question of Ethics"

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 cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

See photos, follies, HOH Hits and Misses and more at Roll Call’s new video site.

Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.

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 cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

The 114th: CQ Roll Call’s Guide to the New Congress

Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.

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 cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

The 114th: CQ Roll Call’s Guide to the New Congress

Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.

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 cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

The 114th: CQ Roll Call’s Guide to the New Congress

Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.

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

July 22, 2014

When Is a Tweet an Ethics Violation? | A Question of Ethics

Q. As a staffer for a Member of the House, one of my responsibilities is to run his official Twitter and Facebook accounts, and I have a question about permissible uses of those accounts. The Member occasionally likes to help political allies by making public endorsements during their campaigns. I figure it is okay to announce these via Twitter as I have seen other Members do it, but another staffer in our office said the rules might not allow it. It’s not really against the rules to tweet endorsements of other candidates, is it?

A. Are there restrictions on members’ use of Twitter? You bet there are.

The restrictions derive from a fundamental principle about the permissible uses of federal funds: “Appropriations shall be applied only to the objects for which the appropriations were made.” Put another way, when Congress allocates federal funds for a particular purpose, the funds may be used only for such purpose.

This restriction extends to resources purchased with official funds. The House Committee on Ethics has said “official resources of the House must, as a general rule, be used for the performance of official business of the House,” and not campaign or political purposes. Moreover, the Ethics Committee requires all official resources be used in accordance with the Members’ Handbook, published by the Committee on House Administration.

The rapid rise of social media in recent years has raised new questions about how to apply these rules, many of which were created before social media’s advent. According to a Congressional Research Service report, as of January 2012, more than three quarters of members had official Twitter accounts. Two and a half years later, that figure may be approaching 100 percent.

While the House Ethics Manual does not specifically address the permissible content of members’ official media accounts, the Members’ Handbook does. It allows members to establish “social media accounts,” which the handbook defines as “profiles, pages, channels or any similar presence on third-party sites that allow individuals or organizations to offer information about themselves to the public.” However, and this is important, “Member-controlled content on Social Media Accounts is subject to the same requirements as content on Member websites.”

Specifically, content of websites, and therefore social media accounts, must “be in compliance with Federal law and House Rules and Regulations applicable to official communications and germane to the conduct of the Member’s official and representational duties.” Content must not include “personal … or campaign information” nor “grassroots lobbying or solicit support for a Member’s position.”

Although not specifically addressing social media accounts, the House Ethics Manual states that “the general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking.”

Taken together, the Ethics Committee guidance and the Member’s Handbook suggest that endorsing campaigns via official social media accounts, such as Twitter, could indeed draw the attention of the Ethics Committee. While the committee has never admonished any member for sending a campaign tweet from an official House Twitter account, you should not interpret this as a license to use official Twitter accounts for non-official purposes. Social media such as Twitter and Facebook are still relatively new, and the committee has previously taken action against misuses of older forms of communication. In March 1996, the committee advised a member that he had violated rules governing the use of official resources by using a House fax machine to send a mass communication on House letterhead criticizing a potential campaign opponent.

The safer course, then, is to do what many members are already doing: Use official social media accounts for permissible official purposes, and establish other social media accounts — e.g., personal or campaign accounts — for other purposes.

Notably, the Members’ Handbook’s restrictions on the content of social media accounts do not govern these unofficial accounts. Of course, if you do go that route, it is important to remember to distinguish between official and unofficial accounts.

Specifically, the handbook states that “Members should ensure their social media URLs and account names reflect their position.” Conversely, members’ personal and campaign accounts should not give the impression that they are the members’ official account.

As you can see, in managing your members’ social media accounts, you’ve got your hands full.

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

July 8, 2014

Did House Travel Disclosure Rules Change? | A Question of Ethics

Q. I am hoping you can clear up some confusion about the controversy over news that the House Ethics Committee changed the rules to limit Members’ disclosure of gifts of free travel on annual financial disclosure forms. The reactions seemed all over the place. Some said that it was a big step backwards. Others said that nothing really changed. So, what’s the story?

A. Last week, travel disclosure requirements for members and staff did indeed make news when National Journal published an article titled, “Congress Quietly Deletes a Key Disclosure of Free Trips Lawmakers Take.” According to the article, the House Committee on Ethics reversed three decades of precedent by eliminating the requirement that privately sponsored travel be included on members’ and staffers’ annual financial disclosure forms.

Uproar ensued. Ethics advocates cried foul. Bloggers blogged. Nancy Pelosi vowed to push for legislation if the Ethics Committee did not reverse its “new rule.”

But, did the committee really create a new rule?

To answer that, it helps to understand the financial disclosure process. Financial disclosure by members of Congress is governed by the Ethics in Government Act of 1978. The general idea is to enable the public to monitor potential financial conflicts of interest for members and staffers. To that end, every year members and certain senior staffers must file financial disclosure forms, revealing things such as assets, liabilities and significant transactions made during the year. The forms also require disclosure of any gifts received, including payment of travel expenses by outside sources.

For years, the House Ethics Committee has published guidance on how to fill out the forms. For trips paid for by outside sources, the guidance lists the types of trips that must be included and those that need not be. Historically, the guidance has stated that it is not necessary to include several kinds of trips that already must be disclosed on other publicly filed forms.

For example, the guidance has not required filers to include on their forms certain trips paid for by foreign government entities, which are separately reported under the Foreign Gifts and Decorations Act. Similarly, the forms do not require disclosure of political or campaign trips paid for by a federal political organization, if reported separately as an expense under the Federal Election Campaign Act.

In this year’s guidance, the Ethics Committee added another type of trip that may be excluded: trips taken in connection with official duties. Again, such trips already are required to be disclosed elsewhere. In fact, the law requires that the trips be pre-approved by the Ethics Committee and then disclosed to the clerk of the House within 15 days of the trip. The information that must be disclosed within 15 days is much more detailed than the information on annual financial disclosure forms, and is in fact available to the public in a searchable database maintained by the clerk on the same website as the financial disclosure forms.

Late last week, however, the Ethics Committee issued a memorandum announcing that it was reversing its new guidance. The memo explained the initial decision not to require officially connected travel to be disclosed on annual forms had been made to promote efficiency, as one of several changes recommended by non-partisan, professional staff in collaboration with the clerk’s office when developing the new online filing system introduced early this year. “The additional reporting of privately sponsored travel on financial disclosure reports,” the memorandum stated, “is duplicative of information the filer has already reported and that is made publicly available in the same place online as financial disclosure reports.”

In 2013, for example, the committee reviewed 2,651 financial disclosure forms. Valuable time and resources, the memorandum said, was required to identify and contact any filers who inadvertently failed to include on their forms privately sponsored travel that they had already properly disclosed elsewhere. Moreover, the memorandum stated, requiring privately sponsored travel to be included on financial disclosure forms essentially required the committee to review the same private trip three times: once before the trip for purposes of approval, again after the trip in the post-travel paperwork and then once more, in reviewing the financial disclosure forms. Eliminating the disclosure on financial disclosure forms would have reduced this redundancy.

Nevertheless, “in light of feedback we have received from our fellow Members” the committee decided to reinstitute the requirement to include the trips on annual financial disclosure forms. The committee encourages anyone looking for information about such trips to continue “to use the searchable online database of detailed post-travel filing on the Clerk’s website,” which, compared to the annual forms, contains more information more contemporaneously.

Even before the reversal last week, it was not clear whether anything significant had changed. Now, it is completely clear. Nothing has.

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

June 17, 2014

Why Can’t Hill Staff Contribute to Their Boss’ Campaign? | A Question of Ethics

Q. I am a staffer for a member of the House and I have a question about restrictions on campaign contributions. I saw that Rep. Steve Stockman, R-Texas, was under investigation for accepting campaign contributions from employees of his congressional office. Generally, I know that this is not OK, but I don’t really understand why. It seems to me that congressional staffers are among those who would most want to donate to members’ campaigns. I know I’d like to donate to my member’s campaign. He could use it, and I believe in him. Why can’t I donate?

A. Last week, the House Committee on Ethics published a March report by the Office of Congressional Ethics concluding that there is substantial reason to believe that Rep. Steve Stockman broke the law by accepting contributions from donors who were employed by his congressional office at the time the contributions were made. The OCE is an independent, entity created in 2008, to screen allegations of ethics violations for potential review by the House Ethics Committee. When the OCE refers a matter to the ethics committee, the committee must determine whether to pursue its own investigation. Unless the committee elects to dismiss the matter, committee rules typically require it to publish the OCE investigative report while proceeding with its own further investigation.

The OCE report cites several potential violations of federal statutes and House rules, but your question concerns campaign contributions from congressional staff. According to the report, in February 2013, Stockman’s campaign committee received contributions from two employees of his congressional office. One was a director of special projects, and the other a special assistant. Stockman’s campaign committee, the report stated, filed Federal Election Commission reports first identifying the contributions as being made by family members of the employees — the father of the director of special projects and the mother of the special assistant. After an ethics advocacy group raised questions about the contributions, Stockman’s campaign filed two amended reports, the first attributing the contributions to the congressional employees themselves, and the second stating that the contributions had been refunded to the employees.

The report also alleges that Stockman’s office offered shifting and conflicting explanations to the OCE. Ultimately, in a January 2014 letter to the OCE, Stockman stated the employees were not in fact employed by Stockman’s congressional office when they made the contributions because they resigned before making the contributions, and then re-joined Stockman’s congressional office the next day. The allegations in the OCE report are of course just that, allegations. It will be for the ethics committee to draw its own conclusions about the evidence.

So, what’s wrong with campaign contributions to one’s employing member? Well, as it turns out, they are a federal crime. 18 U.S.C. § 603 states: “It shall be unlawful for an officer or employee of the United States … to make any contribution … to any Senator or Representative in … Congress, if the person receiving such contribution is the employer or employing authority of the person making the contribution.” In short, if you work in the congressional office of a member, you can’t donate to your boss’ re-election campaign.

According to the House ethics manual, the prohibition on contributions to one’s employing member is “absolute.” It applies “even if the contribution was entirely unsolicited and the employee genuinely wishes to make the contribution.” This means House employees may not even purchase a ticket to a fundraiser by their member’s campaign.

The ban has its roots in a host of longtime restrictions upon political activity by federal employees, such as the Hatch Act of 1939 — “An Act to Prevent Pernicious Political Activities.” While the restrictions have been eroded over the years by court challenges and legislative action, the ban on contributions to the campaign of a staffer’s employing member remains.

And, the stakes are serious. An illegal contribution to one’s employing member is not just an ethics violation. It’s a crime, punishable by up to three years in prison. So, as much as your member’s campaign may need a financial boost, it’s probably not worth prison time. Perhaps there are other ways you can help.

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

Sign In

Forgot password?

Or

Subscribe

Receive daily coverage of the people, politics and personality of Capitol Hill.

Subscription | Free Trial

Logging you in. One moment, please...