Q: I am a former staffer now working as a lobbyist for a lobbying firm with a question regarding ethics training. When I was on the Hill, I remember that, ever since the big ethics act bill in 2007, we were all required to receive formal ethics training on an annual basis. Now that I am working for a lobbying firm, I presumed that there would be similar requirement for lobbyists. The gift rules apply to lobbyists, too, so I figured lobbyists would also need education regarding the rules. But, my firm tells me this not the case. Is this right? Is there really no ethics training requirement for lobbyists?
A: The “big ethics bill” I presume that you are referring to is the Honest Leadership and Open Government Act. When it was passed in the fall of 2007, it brought about many changes in the world of Congressional ethics. It was the biggest ethics bill in years.
It imposed tougher restrictions on giving gifts to Members and staffers. It exposed people outside of Congress to liability for violations of the Congressional gift rules — most significantly lobbyists and the organizations that employ them. And, as you note, it required that Senate and House staffers receive formal ethics training. In the Senate, the act requires new Members and staff to receive a one-time ethics training session after joining the Senate. In the House, there is an annual ethics training requirement for Members and staff.
Your question is whether the act includes similar training requirements for lobbyists. Technically, the answer is no. But, that is not the end of the story. Although the law imposes no formal legal requirement that lobbyists receive ethics training, it does include other provisions that could make training a good idea.
One thing the law requires lobbyists to do twice a year is certify that they have read and are familiar with the House and Senate gift rules. Specifically, lobbyists must sign their name to the following statement: “I certify that I have read and am familiar with the provisions of the Standing Rules of the Senate and the Standing rules of the House of Representatives relating to the provision of gifts and travel. ...”
This requirement applies not only to lobbyists but also to organizations that employ lobbyists. So, twice a year, your firm, along with all other businesses employing lobbyists, must certify that the firm has read and is familiar with the House and Senate gift rules.
What does this have to do with training? Consider the fact that these biannual certifications must be true under penalty of law. False certifications are considered false statements to the government and could plausibly result in criminal penalties, including jail time.
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.
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.