Q: I am a Senate staffer with a question about the STOCK Act. I have a friend who is an attorney, and he said that one of the biggest consequences of the act is a possible expansion of the law forbidding Members and staffers from accepting gratuities from constituents. I know that this has been a tricky area for Members and staffers in the past, and we have always been very careful in our office in handling gifts from constituents. Is the gratuities law expanding?
A: Last week, by a 417-2 vote, the House approved a bill widely known as the STOCK Act. As the bill wound its way through Congress, much of the media coverage focused on the bill’s ban of “insider trading” by Members and staffers. This is understandable, given its name: the Stop Trading on Congressional Knowledge Act. Less attention has been received by some key amendments made to the bill in the Senate before it was sent to the House.
Those amendments, authored by Senate Judiciary Chairman Patrick Leahy (D-Vt.) and Sen. John Cornyn (R-Texas), would significantly affect several key anti-corruption laws, including the one you mention, the law prohibiting “gratuities.” To understand the proposed changes requires a little legal history.
The so-called gratuities law is, in fact, a subsection of the statute banning bribes, which never actually mentions the word “gratuity.” The subsection that has come to be known as the gratuities law prohibits giving “anything of value” to a public official “for or because of any official act performed or to be performed by such public official.” In short, you can’t tell a Member: “Thanks for your vote on that very helpful legislation. Here’s $50,000.”
The Supreme Court clarified the scope of this law in an important 1999 decision called U.S. v. Sun-Diamond Growers of California. A lower court had convicted Sun-Diamond Growers of California of violating the gratuities law for making several gifts to the secretary of Agriculture even though no link had been established between the gifts and an official act. Sun-Diamond appealed, arguing that the court had wrongly concluded that all that is required for a conviction under the gratuities law is that a gift be given because of the recipient’s official position. The prosecution responded that the statute should apply wherever a gift is “motivated, at least in part, by the recipient’s capacity to exercise governmental power or influence in the donor’s favor.”
In a unanimous decision, the Supreme Court sided with Sun-Diamond, ruling that the gratuities law, on its face, applies to gifts given for or because of some official act. Therefore, the law does not apply to gifts that are given on the basis of the recipient’s position, even if the donor is hoping to establish good will with the recipient that might affect future official acts.
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.