Q:
“I am a Senator who has spent years working to increase federal funding for cancer research. At a cancer fundraiser last week, a former NFL star from the state I represent, whom I’d never met before, said that he wanted me to have two tickets to the Super Bowl that the NFL had given him. I declined the tickets, but told him that he should give them instead to a boy from our state who was recently diagnosed with a very rare form of cancer and is a big fan of one of the Super Bowl teams. The boy is the son of a friend of the family, and his story has been on the local news.

“What a Senator wants, a Senator gets,” the player said. He gave the tickets to the boy, and the boy was elated … However, I ran all of this by a senior aide in my office, and she said that I may have an issue under the ethics rules. I don’t think that’s right because I didn’t accept the tickets. Who is right?”

[IMGCAP(1)]A: Unfortunately, your aide is right. In fact, your question is a useful reminder that the road to an ethics violation is sometimes paved with good intentions.

The Senate Gifts Rule, Standing Rule 35, is a general prohibition upon Members accepting a gift of any kind, unless the gift falls into one of the 23 categories of exceptions. So, to determine whether a particular course of conduct runs afoul of the rule, there are always two questions to ask. First, does the conduct qualify as accepting a gift? And, second, do any of the exceptions apply?

One might think that the first question is easy here. After all, while it is clear that you have been offered a gift, you declined. How could that possibly qualify as accepting a gift?

Well, it doesn’t. And, up until that point, you were fine. It’s what you did next that, however well-intentioned, may have exposed you to trouble.

A gift to a person other than a Member can sometimes count as a gift to the lawmaker. This is true where: 1) the gift was given with the knowledge and acquiescence of the Member and 2) the Member has reason to believe the gift was given because of his or her official position.

Here, it is difficult to argue that these criteria are not met. After all, the former player gave the tickets to the boy at your suggestion. Thus, you surely acquiesced in the gift. And, from the former player’s response, you had reason to believe that the gift was given to the boy because of your position.

The next question, then, is whether any of the exceptions apply. Unfortunately, they don’t. At least not at the moment. By that I mean there still may be the opportunity to make one applicable.

There are two exceptions worth considering. The first applies to “anything for which, in an unusual case, a waiver is granted” by the Ethics Committee. Although a Senator typically would seek a waiver from the committee before receiving a gift, it might be worth requesting a waiver now, if for no other reason than your case really does seem “unusual.”

The other exception to consider applies to anything that the Senator promptly returns or for which he or she reimburses the donor. Given that the game was Sunday, it is too late for the boy to return the tickets. However, you still can cure your potential violation if you or the boy’s family reimburses the former player.

This leads to one last tricky question. How much? For a start, the fact that the former player himself received the tickets free of charge almost certainly is not relevant. Generally, the amount that the donor paid for a gift is not conclusive regarding the amount you must reimburse. Rather, the focus is on the fair market value of the gift.

As for the market value of the tickets, a recently enacted amendment to Senate Rule 35 would seem to be right on point. It provides that the market value of a ticket to a sporting event is the face value of the ticket.

However, because it is nearly impossible to buy Super Bowl tickets at face value, it could be argued that such tickets should be a special case. This year, Super Bowl tickets with a face value of $600 were being sold by ticket brokers for an average price of about $3,000. Therefore, one might ask, isn’t the “fair market value” of the ticket really $3,000? If so, wouldn’t it provide an end-around to avoid the gift rules if the committee were to treat just the face value of Super Bowl tickets as the fair market value? Wouldn’t it allow people looking to purchase legislative influence to “sell” Super Bowl tickets to Members at a fraction of what the rest of the public pays? In the case of the $600 tickets, couldn’t someone buy them for $3,000 and then provide them to a Member for $600?

While these are all good questions, the new Senate rule that sports tickets should be valued at their face value, as it is written, does not make any exception for events where tickets are scarce. Therefore, the rule suggests that you can reimburse the player the face value of the tickets, not the price that brokers were charging for the tickets. However, just to be sure, I still would consider seeking guidance from the committee. After all, if you do, the committee might even conclude this is an unusual case justifying a waiver, in which case you won’t have to pay anything at all.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Readers should not treat his column as legal advice.