Q: I am an in-house lobbyist for a major health care provider that is providing an H1N1 flu vaccine clinic this Saturday. It is widely expected that there will be an enormous turnout. A Representative called me today and asked if there is any way that her family could receive the vaccine a day early. She has two young children and wants to make sure they receive the vaccine before we run out. We really do not want to say no, as we hate the idea of the Representative possibly spending all day waiting in line with her family, let alone not getting the vaccine at all. I discussed this with my supervisor, and the plan we came up with is to allow the Representative to come the day before the vaccine clinic. This way the vaccine will not be a gift, and we will not be violating any rules. Is that right?
A: This is one of those situations where the ethics rules can get in the way of good intentions. The Representative who called you wants to protect her family from the H1N1 flu. You want to help. Yet the rules suggest that doing so could result in legal trouble for you, your employer and the Representative. Heres why.
As you are no doubt aware, the Honest Leadership and Open Government Act makes it illegal for lobbyists and businesses that employ lobbyists to violate the House and Senate gift rules. Broadly, this means that you and your employer may not make a gift to a Representative or staffer unless an exception applies. Here, the question is what counts as a gift.
House Rule 25 defines the term gift as a gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. The rule says the term also includes services. According to the House Ethics Manual, when determining whether a particular service or item qualifies as a gift, the first question is whether the service or item has monetary value. If so, a Representative may only accept it if an exception applies. So, the question to ask is this: Would your plan constitute providing something of monetary value to the Representative?
Regarding the vaccine itself, your analysis seems spot on. You plan to provide the vaccine to the Representative and her family at the same price that everyone else will pay. Thats not a gift. Its a sale. Indeed, there is an exception to the gift rule for anything for which [a] Member pays the market value.
However, this is unfortunately not the end of the analysis. This is because you not only plan to sell the vaccine to the Member and her family, but you also plan to provide her with the opportunity to receive it in circumstances not generally available to the public. The question is whether affording her this opportunity would qualify as a gift.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.