A Question of Ethics

2007 in Review: A Year of Readers' Questions, Frustrations

December 17, 2007

by C. Simon Davidson

Earlier this year, I received an e-mail from the chief of staff for a Member of the House regarding a birthday party invitation the staffer’s son had received. In years past, one might have found it odd that a chief of staff would e-mail a Washington, D.C., attorney regarding a second-grader’s birthday party. In 2007, however, the Year of Congressional Ethics, the inquiry wasn’t odd at all.

The year brought the most dramatic changes to ethics and lobbying law in more than a decade. In January, the House enacted new ethics rules, primarily targeting receipt of gifts and travel from lobbyists. In September, the Senate followed suit. Also in September, the president signed new legislation requiring, for the first time, that lobbyists obey the Congressional gift rules, and imposing criminal penalties upon lobbyists who engage in corrupt violations of the rules. As this column has described, under some circumstances that legislation might even provide an aggressive prosecutor an avenue to subject Members and staffers to criminal penalties for corrupt violations of the gift rules, particularly when the violations involve lobbyists.

Yet, as I look back at the questions I have received from readers this year, perhaps what is most striking is not the sea change in liability, but rather the extent to which Congressional ethics rules touch the everyday lives of Members, staffers and lobbyists. While some of the readers’ questions concerned weighty issues of ethics and the law, the majority sought guidance on how to get through their day without running afoul of the rules.

In the case of the child’s birthday party, the staffer’s e-mail stated that the party would be at Ultrazone, a “laser tag place,” and that there would be pizza, cake and ice cream. The cost for the laser tag was about $30 a child. The staffer asked whether the fact that the father of the birthday boy was a lobbyist prohibited the staffer’s son from attending. I was happy to reply that, so long as the staffer had no reason to believe his son was invited to the party because of the staffer’s official position, his son could attend the party and enjoy all the entertainment and refreshments that the other children would enjoy.

In May, a reader wrote in response to a column regarding the House rules that forbid senior staffers from accepting honoraria — or payments for appearances, speeches and articles. The reader, a Senate staffer, asked whether the Senate has similar restrictions. It does.

In October, a staffer asked whether the $250 limit on gifts that Members and staffers may accept under the personal friendship exception also prohibits a staffer from receiving a gift worth more than $250 from a spouse. Alas, the ethics rules do not provide stingy husbands with an excuse to leave their wives’ Christmas stockings only half full. This is because, in addition to a personal friendship exception to the general gift prohibition, there also is an exception that allows gifts from relatives. Unlike the personal friendship exception, the relatives exception has no limit.

Also in October, a government affairs executive for a charity wrote with a question regarding an arrangement relating to a black-tie fundraiser his charity hosts. Under the arrangement, the executive would solicit corporate sponsors to purchase tables for the fundraiser, and then ask the sponsors for permission to use their tables for House staffers. I replied that, presuming the sponsors had no role in directing which staffers to invite, there was nothing inherent in his arrangement that would violate the House ethics rules.

In November, a Congressional staffer wrote with a suggestion regarding how to split up tabs when dining with groups that include lobbyists. To avoid violations of the prohibition on gifts for lobbyists, the staffer suggested that a group request two checks: one for lobbyists and one for everyone else. I replied that it was a good suggestion, except that lobbyists and staffers might still need to be careful about sharing any items with lobbyists, particularly expensive items paid for by the lobbyists (e.g., rare bottles of wine).

In addition to asking questions, some readers expressed frustration about how difficult it can be to comply with the rules. For example, the staffer who asked about the birthday party explained why he was happy to allow his story to be included in a column as follows: “Anything to highlight how hard it is for staff to … follow the rules is fine with me.”

Another reader, who had a question about holiday parties hosted by lobbyists, stated that he had raised his question with “twenty or so people who are normally pretty up to speed on this stuff and no one knows.” He called this state of affairs “funny or perhaps sad depending on how you look at it.”

Another staffer’s e-mail reflected the frustration some feel about the intrusiveness of the rules. She called the restrictions on gifts from personal friends an infringement upon her personal freedom and an invasion of privacy. She then wrote: “Sorry for ranting — I know it’s not you that created this legislation!”

These e-mails illustrate how intrusive some of the rules are, how seriously the readers take compliance and how frustrating a process compliance can be. An e-mail from a Congressional Research Service staffer may have summed up best the impact of the Year of Congressional Ethics. As she put it: “It’s a tough world out there.” Take care in 2008.

© Copyright 2007, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.


A Question of Ethics

Running the Traps on the Need to Register

December 3, 2007

by C. Simon Davidson

Q: I am a freelance lobbyist with a question about registration requirements. As I understand it, under the lobbying reform, the Congressional gift and travel rules apply to registered lobbyists, but not to lobbyists who do not register. It has been so long since I first started registering as a lobbyist that I cannot recall what the precise criteria are that trigger the requirement to register. Now that the lobbying reform raises the stakes for registered lobbyists like me, I thought it would be worth re-evaluating whether I need to continue registering. What are the criteria that would require me to register?

A: Under the recently enacted Honest Leadership and Open Government Act, the gap between the legal liability of registered lobbyists and that of lobbyists who are not required to register has grown even wider. Registered lobbyists now face up to five years in jail for corrupt violations of the Congressional gift and travel rules, and fines of $200,000 for knowing violations. Meanwhile, lobbyists who lawfully choose not to register face no such liability.

The growing gap in liability between registered and unregistered lobbyists may make some lobbyists wonder why they should register at all. The answer for most of them, of course, is that the law requires them to. Moreover, lobbyists’ new obligations to comply with the Congressional gift rules apply not only to those who register, but also to those who are required to register but fail to do so. Lobbyists cannot evade the new obligations simply by ignoring the registration requirements.

On the other hand, lobbyists who are not required to register but do so anyway unnecessarily subject themselves to potential legal liability. The sharp increase in the legal exposure of registered lobbyists is good reason to revisit the criteria that trigger the requirement that lobbyists register in the first place.

Given that you have been registering for years, you probably already know that lobbying registration criteria operate on a client-by-client basis. This means that lobbyists must file a statement for each client where the registration criteria are met. There are two basic criteria. First, the lobbyist must be employed by a client for services that include more than one “lobbying contact.” And second, “lobbying activities” must constitute at least 20 percent of the lobbyist’s time in services for the client over a given three-month period. Let’s look at these criteria one at a time.

As for the first criterion, a lobbying contact is a communication to a covered official. The relevant terms here have highly technical definitions, so for specific questions you should study those definitions closely. Generally, however, “covered officials” include most employees in the legislative and executive branches of the federal government. And a qualifying “lobbying contact” is a communication with such an official made on behalf of a client regarding official government actions such as the formulation of federal legislation, regulations and policies. There also is a long list of exceptions to this definition, covering communications like requests for status updates, testimony before a Congressional committee, and communications compelled by subpoena or a federal contract. The bottom line is that if you communicate with a government official in an effort to influence her position regarding an official matter on behalf of a client, then your communication is likely to meet the definition of “lobbying contact” with regard to that client.

The second criterion is whether, during a given three-month period, “lobbying activities” constitute at least 20 percent of the time that you spend providing services to that client. It is important to remember that the definition of lobbying activities is much broader than lobbying contacts. It covers not only the contacts themselves, but also efforts in support of such contacts, including preparation or planning activities, research and other background work. Essentially, if the intent of the work is to support ongoing or future lobbying contacts, then it falls within the definition of lobbying activities. If, during a three-month period, such activities constitute 20 percent of your services for a client, you meet this criterion.

Only if you meet both criteria for a particular client do you have to register. So, if you never have direct lobbying contacts with covered officials but instead only do behind-the-scenes work, there is no need to register. Conversely, if you do have a few lobbying contacts for a client, but, during a given three-month period, lobbying activities make up less than 20 percent of your services for that client, there also is no need to register.

As you can see, navigating through the complex registration criteria requires closely monitoring lobbying contacts and activities, a tedious task. Given these demands, some lobbyists err on the side of caution and register if they think there is even a chance that they are required to do so. In the past, lobbyists have been able to register without exposing themselves to substantial legal risk. With the recent lobbying reform, your question is a reminder that registering may now expose some lobbyists to risks that, depending on their practices, they might not need to face.

© Copyright 2007, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.