Q:I am a lobbyist with a question about the exceptions to the ban on gifts to Members and staffers. As I understand it, the ban on gifts means that I may not take Members or staffers out to dinner. While wining-and-dining Members and staffers used to be frequent events on K Street, for most of us lobbyists the gift rules have made them a thing of the past. However, a friend of mine who works for a foreign embassy here in D.C. continues to take Members and staffers out for meals to discuss legislation affecting the country he represents. He says that there is an exception to the ban that permits him to do so. Can this be right?
A: It is. Under the rules, you may not treat Members and staffers to dinner. But your friend may. Lets look at why.
As anyone who has been paying any attention knows by now, the House gift rule prohibits Members and staffers from accepting a gift unless an exception applies. The rules certainly consider an invitation to dinner to qualify as a gift. This means that, in the absence of an applicable exception, you may not take Members and staffers out for a meal. But, provided certain conditions are met, your friend may well be permitted to do so. This is because there is an exception to the gift ban for gifts from foreign governments, including embassies of those governments and their employees. Lets put the exception in context.
Section Nine of Article 1 of the Constitution, which sets forth limits on Congress, provides that No Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State. In English, this means that Members and staffers may not accept a gift from a foreign government unless Congress consents.
In 1966, Congress provided blanket consent for certain types of gifts from foreign governments by enacting the Foreign Gifts and Decorations Act. Prior to the act, gifts from foreign governments to U.S. employees were required to be placed in the custody of the State Department, which would handle the gifts differently depending on whether the recipient was from the executive, legislative or judicial branch of government. This is in large part because potential recipients of such gifts would often need to seek special legislation permitting receipt of the gifts. In some cases, special legislation was passed. In other cases, it was not. In nearly all cases, however, receipt of gifts from foreign governments was a cumbersome process. The act was intended to remedy these problems.
According to a report by the House Foreign Affairs Committee, the act was to provide a uniform set of standards and procedures for the acceptance of gifts and decorations offered by foreign governments to U.S. government employees. The report stated that the tender of gifts from foreign governments was a well-established practice that predated the foundation of the United States. According to the report, because gifts from foreign governments signify that the recipient has in some small measure contributed to more amicable relations with the foreign government, refusal could be regarded as an insult, thereby negating the very purpose for which the gift is intended.
The House gift rules thereafter incorporated an exception to the gift ban explicitly allowing Members and staffers to accept gifts received in accordance with the act. One type of gift permitted by the act, and the one that applies here, is a gift of minimal value from a foreign government that is tendered and received as a souvenir or mark of courtesy.
For starters, you might be thinking that the check for dinner at many of D.C.s best restaurants could hardly qualify as something of minimal value. At some restaurants these days, a steak can cost upward of $40, and a couple cocktails can double that tab.
But, for purposes of the act, minimal value, as it turns out, is not quite as minimal as you might think. While minimal value meant less than $50 when the act was passed, the amount is now redefined every three years to reflect changes in the consumer price index. For purposes of the act, minimal value currently means less than $335.
An additional question is whether a dinner during which your friend discusses legislation with a Member or staffer counts as a gift that is tendered and received as a souvenir or a mark of courtesy. The House ethics committee appears to have answered that question affirmatively. In fact, the manual includes an illustrative example that is right on point. In the example, an embassy official invites a staff member to lunch at a local restaurant to discuss pending legislation concerning his country. The manual states that the staff member may accept the invitation under the minimal value provision of the act.
Note, however, that the answer would be different if your friend were a registered lobbyist or a registered foreign agent. The Ethics Manual states that meals from such lobbyists or agents are not permitted by the act because they are not properly deemed as having been tendered as a souvenir or mark of courtesy. Put another way, under the House interpretation of the exception, embassy officials are being courteous when they host dinners but registered lobbyists and agents are not. You need thick skin to be a lobbyist these days.
C. Simon Davidson is a partner with the law firm McGuireWoods LLP.
Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.