The Supreme Court noted that “peculiar results” would flow if the law were interpreted so broadly as to criminalize gifts given on the basis of the recipients’ position. For example, the court said, the statute would then criminalize token gifts such as the replica jerseys given to the president by championship sports teams each year during ceremonial White House visits. The court stated a statute “that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.”
After the Sun-Diamond decision, reform groups immediately began lobbying Congress to respond. They urged Congress to revise the gratuities law to make it a crime for someone to give a gift on the basis of the recipient’s official position. Those efforts never made much progress until this year, when the Senate passed a version of the STOCK Act with the amendments expanding the gratuities law.
Specifically, the amendments would make it a crime to give a gift worth $1,000 or more “for or because of ... the [recipient’s] official position.” This means that for prosecutors to obtain a conviction under the law, they would no longer need to establish a link between a gift and some specific official act.
The amendments do include an exception for actions taken “as provided by law, for the proper discharge of official duty, or by rule or regulation.” The amendments define “rule or regulation” in this context to include rules and regulations governing the acceptance of gifts and campaign contributions. This appears to mean that gifts made in accordance with Congressional gift rules and campaign finance regulations would, by definition, not be violations of the gratuities law.
As it turns out, the version of the bill passed by the House did not include the amendments expanding the gratuities law, meaning their fate is now up in the air. While some consider the amendments to be as good as dead, Leahy has urged that they be considered in conference, where House and Senate negotiators will work to resolve the differences between the two versions of legislation.
To return to your question, it remains unclear whether the gratuities law will expand. But, whatever the fate of the proposed amendments, Members and staffers certainly have plenty of other reasons not to accept gifts, and constituents have plenty of reasons not to give them. As you are no doubt aware, the House and Senate gift rules greatly restrict gifts to Members and staffers. And, the Honest Leadership and Open Government Act of 2007 makes it a crime for lobbyists to knowingly make a gift that violates those rules.
So, while the gratuities law might not expand, this is no reason for Members and staffers to be any less careful about gifts from constituents. Continue to proceed with care.
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.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.