Suppose the truthfulness of your certification was called into question and the government commenced an investigation. In the event of such investigation, you should expect to face tough questions regarding whether you really did read the gift rules and whether you were familiar with them at the time of your certification. How might you go about proving that? What could you point to in order to prove that you really were familiar with the gift rules when you made the certification? One possible answer is training. Although training is by no means required by the law, it could go a long way toward demonstrating to the government that you were familiar with the gift rules when you certified that you were.
The same is true of an organization, but on a broader scale. For organizations that employ in-house lobbyists, someone must certify on behalf of the organization that the organization itself has read and is familiar with the gift rules. Again, that person should be prepared to demonstrate that the organization has indeed read and is familiar with the gift rules. Organizations whose employees receive regular training in the rules might have an easier time making this demonstration than those whose do not.
One might ask whether there is any real danger that a lobbyist or organization would really face a government investigation focused solely on whether the lobbyist or organization truthfully certified a familiarity with the gift rules. Are there not more worthy causes for the allocation of law enforcement resources?
Maybe. But for lobbyists and organizations that make these certifications under penalty of law, that should come as cold comfort. Alleged violations of law are often discovered during government investigations that were focused on conduct largely unrelated to those violations.
For example, during the Justice Department’s investigation of ex-Sen. John Ensign (R-Nev.) relating to his affair with a former campaign staffer, investigators discovered evidence of a crime largely unrelated to the initial focus of the investigation. Specifically, Ensign’s former staffer, Doug Hampton, allegedly violated restrictions on what staffers can do after leaving the Hill. Hampton faces criminal charges.
So, while federal law does not require ethics training for lobbyists, they and their organizations can never know if their conduct might at some point be subject to government scrutiny. The safest approach is to assume that one day it will and to plan accordingly.
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.