Ethics Rules Imperil the Source Lunch

Posted March 7, 2008 at 6:17pm

For Senate press secretaries making the trip this year, the annual pilgrimage to New York City to meet with news organizations headquartered there had a very different feeling than in years past.

Staged less than two weeks after new ethics rules went into effect in the chamber, trip planners said they vetted with the Senate Ethics Committee even the most mundane interactions — including accepting key chains from NBC and notepads from CNN.

“I was calling the Ethics Committee every five minutes and checking everything to make sure we erred on the side of caution,” said Adam Sharp, who planned the trip for the Senate Press Secretaries Association.

The flacks were just there to meet with producers, editors and reporters, encounters that happen countless times a day on Capitol Hill. But because the new gift ban does not just apply to lobbyists — extending instead to anyone whose company employs them — it has had the unintended consequence of pushing the Congressional press corps and the staffers who work with them onto ethically dangerous ground.

The gift ban slices helter-skelter across the press corps: It covers reporters for The Washington Post, but not those for The New York Times, for example. And while the team at MSNBC definitely falls under the ban, the status of those at CNN is murkier.

At issue is not simply whether a media outlet employs lobbyists. Many don’t but have parent companies that do. In those cases, the precise nature of the ownership arrangement comes into question.

The problem has reporters, communicators and ethics experts alike puzzling over corporate ownership structures and debating who should rightfully be considered covered by the ban.

And behind those questions lie more fundamental ones: Is it fair that some reporters can still treat staffers to lunch when their competitors cannot? And should the ban cover reporters at all, considering their newsgathering mission is entirely distinct from the legislative agenda of their corporate parents?

“It doesn’t make sense, although starting to make carve-outs for this field or that field might get complicated,” Washington Post national political reporter Jonathan Weisman said. The Washington Post Co., which owns the paper, has for years maintained an in-house lobbyist.

Weisman said Len Downie, The Post’s executive editor, sent out a memo alerting staff to the ban and its implications: No more taking Members of Congress or staff out to lunch.

Meanwhile, reporters at The Associated Press, which is cooperatively owned by its contributors and does not employ a lobbyist, still have access to tickets to take sources to Washington Nationals games. “Those are bottom-line tickets,” said AP Washington Bureau Chief Sandra Johnson, meaning their face value is below the $49.99 gift limit that lawmakers and staffers can accept from people unaffiliated with lobbyists.

There is no particular logic to which outlets are in the clear and which are not. In general, however, the main Capitol Hill publications — including Roll Call, Congressional Quarterly, National Journal, The Hill and Politico — are not covered by the ban. On the other hand, most owners of the broadcast news outfits — ABC, CBS, NBC, MSNBC and Fox News — employ lobbyists and are therefore covered.

In cases where the ownership structure is more complicated, ethics experts have divergent opinions. One school of thought takes an expansive reading of the rule. That is, if an outlet’s parent company employs lobbyists, it falls under the ban, no matter how many layers of corporate entities lie between them. Ken Gross, an ethics expert with Skadden, Arps, Slate, Meagher & Flom said the law prescribes a narrower reading. “Legally, technically, you should look at each entity as its own,” he said. Still, he counsels playing it safe and applying a blackout on gifts and meals across the board in caases in which a parent company is lobbying.

The calculus about who can accept what gets even more complicated when a reporter tries to pick up a tab out-of-pocket. Even scribes whose parent companies employ lobbyists can buy cheap meals or drinks for House lawmakers and staff, as long as they don’t get reimbursed, said Marc Elias, an ethics compliance expert with Perkins Coie. But the Senate Ethics Committee has taken a stricter line on that point. Elias said guidance for that chamber suggests the panel would draw no distinction between a reporter’s personal funds and those that get reimbursed — unless the reporter says the expense is based on a personal friendship.

The ethics panels so far have provided limited guidance about what, if any, exemptions media organizations can claim under the gift ban. But last month, the Senate Ethics Committee issued a memo that cleared the way for Senators and staff to accept “food or drink of nominal value” during media interviews. “This would, for example, allow a Member to accept a cup of coffee while appearing on a Sunday television news program — otherwise forbidden since the television networks employ lobbyists,” the memo stated.

Press secretaries described the new strictures on reporters as arbitrary and unnecessary. “All we’re doing is trying to foster our relationships, which is the lifeblood of both our jobs,” a House Republican leadership aide said. “It’s very complicated and very hard to understand.”

Greg Keeley, president of the Senate press secretaries group and spokesman for Sen. John Barasso (R-Wyo.), agreed the rules are now “too complicated.”

“If I have a sandwich or coffee with a journo who works for Fox, for instance, because their ownership is Murdoch, we can’t do that,” he said. “What influence a journalist is going to have on my boss’s legislative agenda, it’s a bit of a long bow to draw.”

Added Sharp: “What are we going to do, start putting a little red dot on people’s press credentials?”

Several said they sidestep potential pitfalls by employing a strategy other staffers have adopted in social encounters: simply paying for themselves in every situation. But some pointed out that their more cash-strapped colleagues may turn down bull sessions with reporters who can’t spring for a burger and beer, giving other scribes an unfair advantage. “There’s always been an advantage for organizations with more of an expense account or deeper pockets,” one Republican communicator said. “But this is a particularly random advantage for certain media outlets.”