Q: I am a registered lobbyist with a question about holiday
parties. Next month is our family’s annual holiday oyster roast. It’s a huge
dinner party at our home, with more than 100 guests, thousands of oysters,
Virginia ham, Brunswick stew and lots of good wine and beer. My question
concerns whom I may include on the guest list.
In particular, last month a House staffer moved into the house next door.
We do not know him well yet, but we plan to invite him anyway, as it is a
longtime family tradition to include everyone on our street. Before inviting
him, I wanted to confirm that the invitation would not violate the new
restrictions on lobbyists. I don’t think it would because our oyster roast is a
widely attended event. Is that right? Or am I required to leave him off the
list, while inviting everyone else on the street?
A: When preparing a guest list for a holiday party, a host’s biggest risk
used to be omitting someone who might take offense. Now, when lobbyists are the
hosts, they could face an even bigger risk: going to jail for inviting someone
they should not have. As odd as that might seem, it is yet another consequence
of the breadth of the recently enacted Honest Leadership and Open Government
As you are no doubt aware, that act requires registered lobbyists to comply
with the Congressional gift rules. Here, since your question concerns a House
staffer, the House gift rule applies. That rule prohibits Members and staffers
from accepting any gift, unless an exception applies. Therefore, whenever you
think you may need to apply the gift rule, there are always two questions to
ask. First, is there a gift? And second, does any exception apply?
For the first question, the place to start is the definition of “gift.” After
all, if there is no gift, there can be no gift rule violation. Admittedly, if I
had to characterize some of the holiday parties I have attended over the years,
“gift” would not leap to mind. However, the House rule’s definition is broad and
captures more than just what Santa leaves under the tree. It includes, among
other things, favors, gratuities, entertainment, hospitality and any other item
having monetary value. Under this definition, there seems a good chance that the
ethics committee would consider attendance at your party, with all the food and
drinks that go with it, to be a gift.
If the invitation is a gift, the next question is whether any exception
applies. Your suggestion is the exception for widely attended events, which
allows Members and staffers to accept free attendance at such events when
certain criteria are met. Unfortunately, it would be difficult to argue that
your party meets the criteria. The exception typically covers events like
meetings of trade groups and professional associations. Most significantly, in
order for the exception to apply, the staffer’s attendance would need to be in
connection with his or her official duties. Here, unless your neighbor happens
to work for the Subcommittee on Brunswick Stew (which, of course, debates
whether squirrel is an essential ingredient), it would be hard to argue that his
attendance would somehow be connected to his official duties.
Another exception to consider for holiday parties allows staffers to accept
food and refreshments of a nominal value offered other than as part of a meal.
The ethics committee has interpreted this provision to allow Members and
staffers to accept “the kinds of food and refreshments usually offered at
receptions (such as hors d’oeuvres, appetizers and beverages).” Unfortunately,
while the offerings at some holiday parties might meet this definition, the fact
that your spread is intended as dinner makes it unlikely to qualify.
One final exception that can apply to some holiday parties covers gifts given
on the basis of personal friendship. Again, however, it is unlikely that you
meet the criteria. In applying this exception, one of the factors the ethics
committee considers is the history of the relationship between the donor and the
recipient, including any previous exchange of gifts. Here, you say that you do
not know the staffer well, so the exception does not seem applicable.
There also is the question of whether you intend to invite any other Members
or staffers to your party. If so, before sending them invitations, you should
study the criteria of the personal friendship exception to make sure it applies
to each one. In the spirit of the season, many holiday party guest lists are
very large and include invitees who might not meet the specific criteria of the
personal friendship exception.
Regardless of whether you intend to invite other staffers, the options that
the ethics reform gives you with respect to your neighbor don’t seem all that,
well, neighborly. You could leave him off the list altogether. You could invite
him but instruct him not to eat (perhaps he could just taste the stew). Or, you
could seek the approval of the ethics committee. Unfortunately, the committee
provides advisory opinions only to House employees, so, if you went this route,
you would have to suggest that your neighbor seek the committee’s approval
If you can’t stomach any of these options and you choose to ignore the rules
altogether, you do so at your peril, as the possible sanctions are more serious
than mere coal in your stocking. Knowing violations of the Congressional gift
rules can result in heavy fines, while corrupt violations can lead to up to five
years in jail. Of course, unless Scrooge himself has recently joined the Justice
Department, it seems unlikely that federal attorneys would investigate you for
observing your tradition of inviting all your neighbors to your holiday party.
Yet, you might not want to be the one to test their holiday spirit. “’Tis the
season to be jolly” is not much of a legal defense.
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