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September 2, 2014

DOMA Ruling Could Expand Financial Disclosure | Davidson

Q. I have a question about your recent article on how House ethics rules could be affected by the Supreme Court’s decision on the Defense of Marriage Act. I am in a same-sex marriage with a House staffer that the law recognizes in our state. My question concerns the financial disclosure forms my spouse must file each year with the House. I know that these forms generally ask for information concerning the filer and the filer’s spouse but that this has never applied to same-sex spouses. I am a private person and don’t like the idea of the public knowing about my financial affairs. While my spouse and I of course were elated about the Supreme Court decision, I am concerned that it might mean he must start including my information on his disclosure forms. Does it?

A. Another good question. The full consequences of the Supreme Court’s decision regarding DOMA are still playing out and will likely continue to for quite some time. In this case, the potential consequences relate to the Ethics in Government Act, which requires members and some senior staffers to file annual financial disclosure forms with the Clerk of the House. The forms must be filed by all staffers who meet a certain pay grade, and it sounds like your spouse is just such a staffer.

According to the House Ethics Manual, the financial disclosure requirement was created in part to address the suspicion that public officials might use their positions to promote their own welfare instead of the public’s. Financial disclosure, the manual says, provides a way for the public to monitor and deter conflicts of interest. It is intended to provide the public with “information necessary to allow Members’ constituencies to judge their official conduct in light of possible financial conflicts with private holdings.”

Broadly, financial disclosure forms contain information about the filer’s outside income, gifts, assets, liabilities, investments and certain outside positions held. The forms also contain this information about the filer’s spouse. The annual deadline for filing the forms is usually in May, although newly hired staffers above the pay grade that triggers the disclosure requirement must also file reports within 30 days of being hired.

In addition to these forms, members and highly paid staffers must file periodic transaction reports (or PTRs) whenever they buy or sell stock worth more than $1,000. And they must also file PTRs whenever their spouse or dependent children make such stock transactions. These requirements were created by last year’s STOCK Act, which revised the Ethics in Government Act to address concerns about potential insider trading by members and staffers. PTRs must be filed within 30 days of the filer becoming aware of a reportable transaction or within 45 days of the date of the transaction itself, whichever is earlier.

You are correct that, for purposes of the financial disclosure forms and PTRs, the term “spouse” has not applied to you. This was required by DOMA, which contains a provision stating that, for purposes of all federal rules and regulations, the term “marriage” is limited to a union between a man and a woman as husband and wife, and the word “spouse” is limited to “a person of the opposite sex who is a husband or a wife.” The Supreme Court, however, has now struck down that provision. You are right, then, to ask whether the term “spouse” might include you, in which case your spouse would be required to disclose your information on financial disclosure forms and PTRs.

On this question, the answer is not yet clear, as the House Ethics Committee has not issued any public guidance. But, if I were a betting man, I would guess that the term “spouse” for purposes of these forms and reports may well be expanded to include spouses in same-sex marriages as well, at least for members and staffers from states where such marriages are legally recognized.

If my guess is correct, and the term “spouse” is indeed extended to you for purposes of disclosure in the House, I am not sure that I have any great solution to your concern about wanting to avoid publication of your financial affairs. In court decisions, as in marriage, you take the good with the bad.

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.

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