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Q: I am a lobbyist with a question about inviting House staffers to clients’ events. One of my clients is an organization that hosts an annual conference regarding developments in the organization’s particular industry. This year, the organization has hired me to help generate interest in the conference, and it wants me to invite House staffers I know from when I worked in the House. The organization says there is an exception to the gift ban that allows staffers to attend without paying the conference’s $50 registration fee. May I invite House staffers to the conference?
A: Great question. At issue are the criteria for the gift ban exception that allows staffers to accept invitations to widely attended events. As I am sure you know, House rules generally prohibit providing anything of value to staffers unless one of the gift rule exceptions applies. Federal law imposes civil and even criminal penalties on lobbyists who knowingly violate these rules.
One exception to the gift ban allows staffers to accept free attendance at what are called “widely attended events,” even where individuals outside Congress must pay to attend. The general idea behind the exception is that the gift rules should not prevent staffers from participating in events where there is an exchange of ideas on issues relevant to staffers’ official duties. After all, such exchanges should promote good government, not inhibit it.
However, not every event that happens to be “widely attended” will qualify. There are strict criteria for the exception. First, there must be a reasonable expectation that at least 25 people outside Congress will attend. Second, the event must be open to members throughout a given industry, or to a range of people interested in an issue. And third, the event must be appropriate to performance of the official duties of the staffer or Member being invited. Types of events that typically satisfy these criteria are things such as trade association conferences or Rotary Club meetings.
Assuming these first three criteria are met, the answer to your question turns on the fourth and final criterion. The invitation must come from the sponsor of the event. Under House ethics guidance, “sponsor” in this context is narrower than the normal sense of the word. It means the person, entity or entities that are primarily responsible for organizing the event. An individual or entity that simply contributes money to an event is not considered a “sponsor” under the House guidance.
In your case, a good argument exists that you should count as a “sponsor.” Your client is the organization that is sponsoring the event and which has hired you specifically for the purpose of promoting it. In extending invites to staffers, you would be acting on behalf of the organization, essentially as the organization’s agent. If the organization had in-house lobbyists, certainly they could invite staffers on behalf of the organization. Why should the result be any different just because you are an outside lobbyist?
Moreover, much of the guidance regarding who counts as a “sponsor” focuses on the distinction between the organizer of the event, who counts as a sponsor, and mere financial contributors, who do not. The guidance generally appears aimed at preventing mere financial contributors from having a role in invitations, the guest list and seating arrangements. The guidance says the actual “sponsor” must retain “ultimate control” over these items and not allow financial contributors any share of the control. It would not appear to conflict with the spirit of this guidance for an outside lobbyist to send an invitation to a staffer on behalf of the entity that is organizing an event.
Nevertheless, as reasonable as this argument might sound, there is a risk that the Ethics Committee — or even a prosecutor — might reject it. Under a technical reading of the rule, they might contend, only the sponsor itself may make invitations. Period. The House Ethics Manual states that an invitation to a widely attended event is not acceptable if it is “extended by anyone other than the sponsor.” Because you are not an employee of the entity organizing the event, they might argue, you cannot qualify as a “sponsor.”
Beyond this legal risk, there is a practical concern. Staffers might be hesitant to accept an invitation to a widely attended event if the invitation comes from a lobbyist. Some staffers are particularly scrupulous about the ethics rules, erring on the side of caution whenever there is even the slightest possibility or appearance of a violation. Thus, some staffers who would accept an invitation from the organization itself might reject an invitation from an outside lobbyist simply out of an abundance of caution. If the legal risk of a violation does not convince your client that invitations to the event should not come from you, perhaps this practical concern about the effect on attendance would.
This might seem an unsatisfactory result. After all, your client hired you specifically to help promote the event, and the ethics rules seem to be in the way. With any luck, your organization will understand. There are bigger risks than having fewer staffers at the conference this year.
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.