So, neither the act nor the Congressional gift rules prohibit gifts to newly elected Members. But I would hold off on making those reservations quite yet. There is one more issue to consider.
The House Ethics Manual cautions that “while a newly elected House Member generally is not subject to the gift rule,” a Member-elect is subject to statutory ethics provisions such as the bribery and gratuity statute. That statute makes it a crime for you to provide something of value to a Member in exchange for an official act. The fundamental requirement of a bribery prosecution is the existence of a link between the thing of value and an official act. Here, it is clear that you do not have anything like that in mind. In the absence of a link between the dinner and an official act, the bribery and gratuity statute would not apply to your dinner.
Nevertheless, there are good reasons to tread carefully, particularly if you expect your firm’s lobbying efforts to involve the newly elected Member. Suppose you begin lobbying the Member next year on behalf of a client. Suppose further that your lobbying efforts are successful. If, for some reason, your activities with the Member should ever come under investigation, government investigators might take a different view of the post-election dinner. It could prove both costly and time-consuming to demonstrate to investigators that any action taken by the Member in support of one of your client’s positions was not connected to your dinner. While the likelihood of such an investigation may be remote, and the likelihood of liability even more remote, the risks at least merit consideration before reaching for the check. Perhaps the Member-elect feels like splurging on a celebration.
C. Simon Davidson is a partner with the law firm McGuireWoods. 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.