Every Gift a Crime? Taking Ethics Reform Too Far

Posted May 1, 2009 at 1:56pm

Ten years ago this April, a unanimous Supreme Court held in the United States v. Sun-Diamond Growers of California that to establish a federal gratuities violation — a felony punishable by two years imprisonment — prosecutors had to prove “a link between a thing of value conferred upon a public official and a specific official act’ for or because of which it was given.—

In March, by reporting the Public Corruption Prosecution Improvements Act to the Senate, the Judiciary Committee strode toward legislative reversal of the Supreme Court’s limited construction of the gratuities statute. This legislation seeks to amend the statute to cover not only instances where a public official (or former official or person selected to be an official) is given anything of value linked to an official act, but also — and here’s the language undoing Sun-Diamond — instances where anything of value is given simply “for or because of the official’s or person’s official position.—

Proponents say the bill merely seeks to return the gratuities law to its pre-Sun-Diamond status when, they claim, the federal circuits had been implementing the expansive “official position— construction of “illegal gratuity.— No, not exactly. Before Sun-Diamond, some circuits did hold that a gratuities violation required proof only that a gift had been given because of an official’s position. But other circuits — including, notably, the D.C. Circuit — required proof of a link between a gift and some specific past or future official act or acts.

Why does this matter? Because overstating the historical provenance of the “official position— construction of the gratuities statute deflects careful consideration of the serious problems that enforcement of such a broad prohibition would produce. The Sun-Diamond court, for example, noted that a statute criminalizing gifts given to a public official simply because of that official’s position would lead to decidedly “peculiar results,— such as making a felony of even such token gifts as a replica jersey given by a championship sports team to the president during a White House visit.

Originally, the Public Corruption Prosecution Improvements Act left such potential “peculiar results— entirely unchecked. The version reported to the Senate was modified, however, to exempt from criminal prosecution anything given in conformity with other applicable rules or regulations, including executive branch or Congressional gift rules or federal election regulations. Even as modified, however, the proposed broadening of the gratuities statute would produce peculiar, indeed draconian, results in abundance.

The proposed gratuities statute provides no safe harbor to former public officials or persons selected to be public officials — or to anyone who, however innocently, gives them anything because of their former or future office. Take former Members or Members-elect of the House or Senate, to whom Congressional gift rules do not apply. A retired Senator who attends a testimonial dinner honoring her years of service, and the sponsors of that dinner, would risk facing gratuities charges. A Member-elect who accepts lunch at a Rotary Club to discuss his legislative priorities could incur gratuities charges over the proffered plate of chicken.

Such “peculiar results— would not be limited to situations involving former or future officials. The proposed gratuities provision criminalizes every single violation — no matter how minor — of the myriad federal rules and regulations that already significantly limit gifts given to current government officials and employees in connection with their positions.

Take one example: If a Senator speaks at a local private high school’s civics day program and the school principal sends a plaque (worth more than $49.99) commemorating the speech to the Senator’s office, the Senator and the principal could face gratuities charges because the relevant Senate gift rule exception permits a commemorative item to be accepted only at the event that it commemorates. Many similar instances could be cited under the often complicated, sometimes counterintuitive gift rules of all three branches of government.

Although every such minor gift rule violation could be prosecuted under the proposed new gratuities statute, not every such violation would be prosecuted. But the uncertainty surrounding enforcement would, by itself, be of serious concern. A statute affording prosecutors limitless discretion to charge relatively commonplace occurrences as felony conduct should give considerable pause.

Arguably, by criminalizing ethics rules and regulations, the proposed amendment to the gratuities statute would deter even minor gift violations. Maybe. But at what cost?

First, criminalizing gift rules and regulations would accelerate the politicizing of the ethics process by dramatically escalating the stakes in the perennial Washington game of “gotcha— played by the press and political opponents alike.

Second, while the new gratuities statute might deter gifts to individuals because of their official positions, it likely would deter otherwise qualified and willing individuals from taking on such positions: It’s one thing to face administrative proceedings for an inadvertent gift rule violation, another thing to face arraignment.

Third, criminalizing the gift rules would further isolate public officials from the public. The proposed amendment of the gratuities statute doesn’t eliminate the long-standing exceptions to the rules that permit attendance at receptions, widely attended events connected with official duties or bona fide charity events. But many potential sponsors will decline to pay for such legitimate events, and many officials will decline to attend if they believe that just by doing so they may invite law enforcement interest.

For some proponents of the Public Corruption Prosecution Improvements Act, this is undoubtedly the desired end: effective elimination, through criminalization, of many of the exceptions to the federal gift bans. But is this what the bill’s Senate sponsors intend? These sponsors have publicly pledged to add other appropriate safeguards to the proposed gratuities statute.

Here’s a safeguard that would do more than merely palliate a potential revolution in the enforcement of federal gift rules and regulations: Leave the illegal gratuities statute alone. Continue to require that prosecutors prove a link between an official’s receipt of an item of value and an official act. Let stand the limited construction of “illegal gratuity— announced by a unanimous Supreme Court a decade ago.

Robert L. Walker is of counsel in the Election Law & Government Ethics and White Collar Defense Practice Groups at Wiley Rein. He is a former chief counsel and staff director for both the House and Senate ethics committees.