This morning, the following piece, co-authored with Jan Baran, appears in Roll Call, and is reproduced here with the paper's permission.

January 4, 2007
by Robert Bauer and Jan Baran
Special to Roll Call

Ethics reform is in the air and proposed rules changes are circulating. Organizations and individuals who interact with Congress are trying to plan ahead for the new era. How are the ethics and lobbying rules going to change?

In this and future pieces, we will offer some explanations, views and questions about reform proposals and new Congressional rules and legislation. The first items will be those rules that may be changed when the House votes today, the opening day of the 110th Congress, on H.Res. 6. Here are some of those changes:

Gifts

The Basic Proposition: Before the House will be a proposal to ban gifts from the lobbying community to Congressional personnel. The ban is total, and it applies to both the lobbyists and the organization (corporation, association, union or firm) that employs or retains them. The long-standing dollar thresholds below which a gift may be given, $49.99 per occurrence and $99.99 per calendar year, per source, will be retained but won’t apply to lobbyists barred from making any gift.

Exceptions? It is unclear the extent to which the current 23 exceptions to the gift rules (widely attended events, personal friendship, etc.) will apply under the proposed rule. However, by including within the ban the employer, the rule sweeps away the complex “valuation” issues so closely associated with the dollar thresholds. Current rules bar “buy-downs” — paying some portion of a single gift to bring the “contributed” share within the $49.99 limit. Other rules applied to meals offered with the Member’s spouse also present and to gifts made by more than one organization, such as a jointly hosted meal.

The proposed total gift ban significantly simplifies the rules. The exceptions rendered obsolete by these gift rules in their current form were one of the most persistent sources of both confusion and mistake. In the future the exceptions still will bedevil private citizens who are not lobbyists or foreign agents and whose employer will not reimburse them.

Lobbying Firms and Salaried Lobbyists: The ban — and the related restriction on gifts of travel — is stated in H.Res. 6 as applicable to organizations that “retain or employ” lobbyists. It most certainly will apply not only to salaried lobbyists but also to those retained for independently provided consulting support.

The ban does not cover employees of lobbying firms who are not themselves lobbyists — i.e. registered as such under the lobbying law — and who do not receive reimbursement from their employers. For these individuals, the dollar limits remain in effect.

It is possible, however, that the Committee on Standards of Official Conduct, in reviewing the exceptions, will conclude that these other private-sector employees should be ineligible to give even within a dollar threshold. The House code strongly emphasizes “appearances,” calling on Members to observe its spirit as well as its letter, and the House may conclude that the spirit of the rules advises against allowing any gift-giving by employees of organizations engaged in lobbying.

Or the House may disallow these gifts but retain on some basis a potential exception for a claim of personal friendship. This current exemption for entirely personal, small-scale gifts may determine the severity of the ban. Now the rules provide for guidelines on what qualifies as a personal gift, including consideration of the entire history of the relationship between the donor and the Congressional official; the absence of any employer or other reimbursement for the expense of the gift; and a history of reciprocal gift-giving. So how the committee concludes its review of this exemption may have a significant impact on the contours and scope of the pending ban.

Travel

The Basic Proposition: It appears that much privately funded travel will be significantly restricted. The proposed rule would generally bar Members and staff from accepting travel expenses from a “private source” that is a lobbyist or foreign agent or from a “private entity that retains or employs” such persons. And for all organizations — whether or not they are entities employing or retaining a lobbyist — no sponsorship of Congressional travel is permitted if “the [Congressional] traveler is accompanied on any segment by a registered lobbyist or agent of the foreign principal.”

It is not yet clear from the language whether this restriction applies to the actual travel, allowing for attendance if the lobbyist travels to the event separately; or if the attendance of the lobbyist is prohibited altogether. By referring to “segment,” the proposed rule suggests that it is a travel-related restriction; but the prohibition triggered by lobbying “accompaniment” applies to any expense whatsoever, including lodging or meals.

An ethics committee pre-approval process will apply to travel financed by other groups not subject to the lobbyist-centered restriction. Pre-approval is required of Members and staff; the approval follows some of the restrictions now in the code in limiting expenses to those that are “reasonable” and “official” in character. In addition, the sponsors of travel will have to certify that they have met the requirements for permitted travel. Members and staff who accept privately paid travel will have to file publicly disclosed reports with the Clerk within 15 days of the trip instead of the current 30 days.

Under the proposed rule, it is clear that the Member would have to supply some official-related service — some meaningful speech or participation in an event — for an invitation to qualify for exempt, one day/one night treatment with limited lobbyist involvement. The committee would be required to develop guidelines, reviewed and as necessary revised annually, to “judge the reasonableness” of a travel expense, with particular attention to such factors as the “connection” between a trip and official [or officially connected] duties or purposes

Exceptions: The proposed rules would provide an exception for private entities that are “institutions of higher education.” They may pay for private travel, employ lobbyists and even have those lobbyists accompany the Member or staffer.

There also is an exception for a one-day/ one-night reimbursed travel sponsored by any private entity — including entities that employ or retain a lobbyist — to visit a site, deliver a speech or participate in a panel. The time limitation is subject to an extension to two nights if required in the interests of practicality, but only with the permission of the ethics committee.

For organizations employing or retaining lobbyists, the proposed rule would impose conditions on lobbyist involvement: It would have to be “de minimis.” The new rule directs the committee to establish guidelines for “de minimis” lobbyist involvement in planning, organizing, requesting or arranging the excepted one-day/one-night activity. 

Issues: For outside groups, this rule will compel them, for the first time, to certify that they have met the requirements for travel, specifically the restrictions on lobbyist travel. This raises the stakes: These filings are presumably subject to the criminal penalties for false statements submitted to the government. Members also, as provided under current rules, must certify the official nature of the trip and the “reasonableness” of the expenses paid; and this disclosure is subject to similar exposure for misstatements.

Critics of the adequacy of reform, who believe that disclosure is never enough, overstate the case: Here they matter a great deal, being central to the enforcement of these travel rules. Alternatives for Members who seek to avoid private financing are payment with their own funds or, possibly, with campaign funds. Presumably all the restrictions on lobbyist participation and the type of private entity that can sponsor an event can be avoided if the Member or staffer does not accept privately paid travel and lodging expenses.

One question that may arise is whether a Member may hold a fundraising event at the same time and place as the out-of-town conference. If the campaign, and not the sponsoring organization, is paying all expenses, then the lobbyists could at least participate in the political event. Or not?

Plane Travel: A major proposed change before the House bars the use of any funds, including personal or campaign funds, for any travel on planes not licensed for compensation or hire. Such planes generally include private business aircraft. Under campaign finance rules, the use of campaign funds is allowed, with limitation on the type of plane used, and only the valuation of the trip varies with differences in aircraft type. The rule as it appears in the resolution would bar any use of campaign funds for non-commercial corporate craft when traveling for either campaign, personal or official purposes.

Jan Baran and Robert Bauer are partners at Wiley Rein and Fielding and Perkins Coie, respectively. They have counseled clients including Republican (Baran) and Democratic (Bauer) Members of Congress.

In their next piece, Baran and Bauer will look more closely at travel (planes especially) and new limits on partisanship.