May Lobbyists Rely on the Congressional Ethics Manuals?
As a freelance lobbyist, I am very concerned about my new obligations to comply with the Congressional gift and travel rules. I may be a bit nervous by nature, but these rules seem hyper-technical to me. This makes me worried that I might inadvertently run afoul of them, so I have been busy educating myself as much as possible.
[IMGCAP(1)]To that end, I have just started going through the House and Senate ethics manuals. Last week, however, I was discussing this with a friend of mine who is an attorney, and he warned me that I should not rely on the manuals because they are not intended for people outside Congress. I think that maybe he was just pulling my leg because he knows how gullible and nervous I can be. He’s not right, is he?
A: As you seem well aware, the Honest Leadership and Open Government Act of 2007 changed everything for lobbyists. Prior to the act, while it was generally a good idea for lobbyists to have a sense of the ethical rules governing Members and staffers, this was primarily for political and business reasons. With the passage of HLOGA, however, lobbyists now have a much stronger incentive to learn the rules: the prospect of civil and criminal liability. Lobbyists are now required to read the Congressional gift and travel rules. More to the point, lobbyists also must comply with them. And, in order to ensure they do comply, it is not enough that lobbyists read the rules. Lobbyists should understand them, too.
Given this sudden raising of the stakes, lobbyists like yourself have been scrambling to educate themselves about rules that are not always easy to understand, even for those of us who study them regularly. Fortunately, there is a wide array of educational resources available, and the good news is that you have chosen two of the best: the House and Senate ethics manuals. The bad news (which I hesitate to share with someone who admits to being “a bit nervous by nature”) is that even these resources have their limitations. Let’s look at those limitations one at a time.
The first is staleness. Last month, the House Committee on Standards of Official Conduct published what it called “the first complete revision of the House Ethics Manual since 1992.” For those of us who have struggled to make sense of an ethics manual that has not always corresponded to the current rules, this is great news. However, as time passes, unless updates become more regular, the guidance will again become stale. Moreover, the Senate manual has not undergone the thorough revision that the House manual received. Rather, the current Senate Ethics Manual is dated 2003. Consequently, some of its content is out of date. The problem for a lobbyist like you is that, if you look only at the ethics manuals, you will have no way of distinguishing between guidance that is up to date and guidance that has been superseded.
A second limitation is thoroughness. The House Ethics Manual’s chapter on gifts is 63 pages long and full of illustrative examples. The Senate gift chapter is more than 40 pages long and also contains many examples. Yet, even at these lengths and with all the examples, there is no way the manuals can capture every potential situation and possible application of the rules. While the manuals can clarify some of the gray areas, they cannot clarify them all. You most certainly will find yourself in a situation that the manuals do not squarely address.
One way Members and staff resolve these gray areas is to solicit input directly from the House and Senate ethics committees. According to an annual report released by the Senate committee in January, last year alone the panel wrote more than 1,000 advisory letters, over 700 of which concerned gift and travel. These letters came in response to specific requests regarding specific circumstances. However, because the ethics committees are within Congress, they generally do not issue advisory letters to people outside Congress. This leaves lobbyists like you out of luck.
This raises the final limitation — the one that your friend probably had in mind. The manuals were not created for people outside Congress. In fact, the authors of the ethics manuals are not even the same people who are responsible for enforcing lobbyists’ obligations to comply with the Congressional gift and travel rules. While the House and Senate ethics committees issue the manuals, the U.S. attorney’s office has the authority to prosecute lobbyists’ violations of those rules, and theoretically could interpret the rules differently than the manuals.
In reality, of course, it is unlikely that federal attorneys would pursue a prosecution unless they believed that a lobbyist had been more than negligent in violating the rules. The government attorneys responsible for enforcing the rules said as much to Roll Call last month. Moreover, even in the event of a prosecution, a lobbyist who diligently seeks to comply with the ethics manuals would have a strong defense to any action based on an alleged knowing violation of the rules. Nonetheless, there is always a risk that the attorneys will maintain that the manuals are not binding on them.
None of this is to say that you should not review the ethics manuals. To the contrary, you are smart to do so. The more you familiarize yourself with the gift and travel rules, the more you will hone your ability to identify situations in which the rules might apply — an invaluable skill for compliance. However, it is to say that reviewing the manuals alone may not be enough. Fortunately, there are other resources available: the rules themselves, Congressional training sessions and trade group seminars, just to name a few. Heck, even newspaper columns on ethics have some worthwhile tips every now and then.
C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.