I am the president of a small lobbying firm and I have a question about gifts to newly elected Members. Employees of my firm strongly supported a candidate who was recently elected to the House for the first time. We were thrilled by his election and we would love to take him to a celebratory dinner. But before doing so, I wanted to make sure that it is allowed. I know that rules prohibit us from taking a current Member to dinner. What about a Member-elect?
As you appear to be well aware, the Honest Leadership and Open Government Act of 2007 established new restrictions on gifts from lobbying firms to Members. Specifically, the act prohibits your firm from making a gift to a covered legislative branch official with knowledge that the gift may not be accepted under House or Senate rules. Violations could lead to civil or even criminal penalties.
In general, the House and Senate gift rules prohibit all gifts to covered legislative branch officials unless an exception applies. A current Member, of course, qualifies as a “covered legislative branch official.” And paying for dinner would qualify as a “gift.” Therefore, barring an applicable exception to the gift rule, you are correct that federal law prohibits your firm from treating a Member to dinner.
Note that “covered legislative branch official” also includes most Congressional employees. Therefore, if your Member-elect happens to be a Congressional staffer, he would qualify as a “covered legislative branch official,” and the gift prohibition would therefore apply to him.
On the other hand, assuming that he is not a staffer, the act would not apply. This is because the statutory definition of a “covered legislative branch official” does not include a newly elected Member. Therefore, on its face, the act does not prohibit your firm from the dinner you have planned.
But that is not the end of the story. While it may be true that the act permits you to make a gift to a Member-elect, there remains the question of whether House rules would nevertheless forbid the Member-elect from accepting one. Here, the House Ethics Manual has language directly on point, and it is more good news for you. It states that a newly elected Member does not become subject to House rules until the Member’s pay and allowances begin. For Members elected in a regular election, this is typically Jan. 3. For those elected to fill a vacant seat, it is typically the day following the special election. So long as your dinner occurs before the applicable date, the House gift rules would not prohibit the Member-elect from accepting. Incidentally, the Senate Ethics Manual likewise states that the Senate gift rules apply only to current Senators.
But beware that not all state laws are consistent with the U.S. House and Senate rules on this point. While you do not mention any dinner plans with state lawmakers, if you do have any such plans, be sure to check the applicable state laws regarding gift prohibitions. In some states, gift prohibitions apply not just to sitting lawmakers but also to newly elected lawmakers who have yet to assume office.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.