C Davidson McGuire Woods

FEC Clarifies Rules for Food and Drink at Fundraisers | A Question of Ethics

Q.  As someone who has worked on campaigns for Members of the House for many years, I have a question about campaign fundraisers. I had always thought that when donors attend a fundraiser where food and drink are served, their entire ticket price counts as a contribution from the donor. I heard recently though that when donors pay for the cost of food and drink they enjoy at a fundraiser, campaigns do not have to treat the payments as contribution. That seems rife for abuse. Is it true? A.  Yes and no. A recent opinion issued by the Federal Election Commission says that, in limited circumstances, donors may pay for food and drink at campaign fundraisers without the payments counting as “contributions.” But, the circumstances in which this is permissible are narrowly defined, so be careful.  

As you know, federal election law requires campaigns to record and disclose the source and amount of contributions they receive. It also imposes strict limits on the amounts that individuals may contribute to a campaign. In the current election cycle, an individual donor may contribute no more than $2,700 to a candidate’s committee, per election.  

Can Bartering Official Acts Ever Be Legal? | Question of Ethics

Q. I am hoping you can explain the recent ruling on Rod Blagojevich’s appeal of his corruption convictions. I know that the court upheld nearly all of his convictions, but I was interested to see that the court threw out several as well. Why did it do this, and is there any significance to the decision? A.  Some political trades are legal. Some are not. That distinction is at the heart of last month’s decision by the Seventh Circuit Court of Appeals in the case of former Illinois Gov. Rod Blagojevich.  

In 2011, Blagojevich was convicted of 18 crimes stemming from conduct while governor of Illinois. The crimes included lying to the government, attempted extortion from campaign contributors and corrupt solicitation of funds, among others.  

What Does Bob McDonnell’s Case Mean for Members and Staffers? | Question of Ethics

Q. I am not an attorney, but I have several friends who are, and they seem to think that the latest development in Bob McDonnell’s legal case is significant. I know that McDonnell lost the appeal of his conviction on corruption charges. But, can you explain the legal significance of the case to a non-lawyer like me? Should it mean anything to those of us on the Hill? A.  Yes, it should. Though Bob McDonnell was a state government official — governor of Virginia — he was tried in federal courts by federal prosecutors for violations of federal laws, the same laws that apply to government officials all around the country, including members and staffers on the Hill. Therefore, the recent decision by the 4th U.S. Circuit Court of Appeals in Richmond, Va., to reject McDonnell’s appeal could have consequences well beyond Virginia.  

The issue in the case that many attorneys have been watching closely is what kinds of actions are covered by federal prohibitions on bribery. Federal law provides that public officials may not corruptly demand, seek or receive anything of value “in return for ... being influenced in the performance of any official act.”  

Are Lobbyists Banned From House and Senate Gyms? | A Question of Ethics

Q. I am a former officer of the House now working as a lobbyist in Washington, D.C. I love my job, but sometimes wonder if we lobbyists are unfairly singled out and discriminated against. One example I recently learned about is that former members and officers who become lobbyists are apparently not allowed to use House exercise facilities, while other former members and officers are. Is this really true? A. Lobbyists do get a bad rap, don’t they? At the federal level, many laws impose restrictions that apply to lobbyists but not to anyone else. And, in states, it can be even worse, where “lobbyist” can verge on being a bad word. Some states even require lobbyists to wear the virtual equivalent of a scarlet "L" whenever they are engaged in lobbying. Connecticut, for example, requires anyone engaged in lobbying to wear a badge identifying themselves as a lobbyist, with the “color, material, and other requirements of such badge ... prescribed by regulation.” In 2011, a lobbyist was fined $10,000 for lobbying without a badge.  

So, what about House exercise facilities? Again, there is a distinction between lobbyists and everyone else.  

May Judicial Candidates Be Prevented From Seeking Campaign Funds? | A Question of Ethics

Q. I just read that in some states, people running for judicial positions may not seek contributions to their campaigns. This struck me as nonsensical, but the article said that the U.S. Supreme Court recently upheld the prohibition. Is it really the case that states prohibit judicial candidates from seeking campaign contributions? And, why would the Supreme Court allow these prohibitions? A. You are campaigning for office, but you cannot seek money for your campaign. That would put a bit of a damper on things for our nation’s politicians, wouldn’t it?  

Yet, in many states, this is how things are for judicial candidates. While federal judges obtain their seats by appointment, in 39 states judges are elected at the polls. Many of these states prohibit judicial candidates from personally soliciting funds for their campaigns. Why would they do this? Let’s look at the recent Supreme Court case you mention as an example.  

May a Staffer Ask for a Free Meal? | A Question of Ethics

Q. I do not work on the Hill, but I have several friends who do, and I have a question about when it’s okay to buy them a meal. I had lunch the other day with a chief of staff of a member of the House of Representatives. He forgot his wallet and so asked if I could by lunch. I don’t know anything about government ethics rules, but he said it was fine because the rules allow staffers to accept meals and gifts worth less than $50 from anyone other than a lobbyist, and our tab was $40 after tip. I went ahead and paid based on this, but I later asked another staffer, and he said it was probably not okay for me to have done so. What gives? A. Thanks for the great question, which illustrates a limitation on the exceptions to the gift rule that can be easy to overlook.  

But, let’s start with the gift rule. Though the House gift rule can seem complicated, the rule itself is simple. It can be stated in two words: no gifts. Members and staffers may not accept any gifts from anyone unless an exception applies. It’s the exceptions that can make things confusing.  

What Are the Charges Against Menendez? | A Question of Ethics

Q. As a resident of New Jersey, I have seen many different perspectives on the recent indictment of Bob Menendez. Some here in New Jersey are supporting him, while others have called for his resignation. What I want to know is what exactly the charges are against Menendez and what the government needs to prove. I’ve generally heard it referred to as a bribery case, but are there any other charges against Menendez? A. On April 1, a federal grand jury in New Jersey indicted Sen. Robert Menendez, D-N.J., and his friend Salomon Melgen on multiple counts of criminal offenses. The charges rest on Menendez’s relationship with Melgen, and, yes, mostly concern bribery. The indictment alleges Menendez and Melgen used Menendez’s “official position as a United States Senator to benefit and enrich themselves through bribery.” In short, prosecutors allege Menendez received things of value from Melgen, and, in return, Menendez took official actions for Melgen.  

The things of value include trips on Melgen’s private jets, vacations, contributions to Menendez’s legal defense fund and “hundreds of thousands of dollars of campaign contributions to entities supporting Menendez’s re-election effort.”  

May Lobbyists Lobby Their Spouses? | A Question of Ethics

Q. I read that Rep. [Edward] Whitfield, R-Ky., is under investigation for allowing his wife to lobby his office on behalf of her employer. Is it illegal for someone to lobby their spouse? And if so, does that mean lobbyists who are married to Members of Congress cannot discuss policy with their spouse or have any contact with their spouse’s staff? That sounds like a difficult rule to follow. Is it really the case? A. Last November, the House Ethics Committee announced it had decided to conduct a more in-depth review of allegations that Whitfield broke ethics rules by permitting his wife to lobby himself and his staff. The committee had been referred the matter by the Office of Congressional Ethics, which investigates ethics complaints to determine those that warrant further review by the committee. In accordance with ethics rules, when the committee announced its decision, it also released the OCE’s investigative report, which explains the allegations against Whitfield.  

The report states the claims regarding illegal lobbying are premised largely on House Rule 25, Clause 7, which provides that, “A Member ... shall prohibit all staff employed by that Member ... from making any lobbying contact ... with that individual’s spouse” if the spouse is a registered federal lobbyist. So, to answer your first question, yes it is illegal for a registered lobbyist to lobby their spouse and staff if their spouse is a member of Congress. Likewise, if you are a member and your wife is a lobbyist, you should not allow her to have any lobbying contacts with your staff. As it turns out, the trick is what counts as a “lobbying contact.”  

What Is All the Fuss About Campaign Coordination? | A Question of Ethics

Q. Some friends of mine who are lawyers were recently discussing a political corruption prosecution that they seemed to think was a big deal. I believe it involved some sort of campaign finance violations by the campaign manager of someone who ran for Congress a few years back. As a non-lawyer, it wasn’t clear to me what all the fuss was about. After all, people get prosecuted for political corruption all of the time. Are you aware of the case I’m describing, and, if so, what makes it such a big deal? A. I believe I am. Last month, the Department of Justice announced a political operative named Tyler Harber pleaded guilty to crimes stemming from campaign finance improprieties in the 2012 federal election. The DOJ’s press release said, “This is the first criminal prosecution in the United States based upon the coordination of campaign contributions between political committees.”  

OK, fine, but what does that mean?  

Can Selling Something Be an Ethics Violation? | A Question of Ethics

Q. I read that Rep. Aaron Schock, R-Ill., may face an ethics investigation for selling his house for too high a price. As a longtime House staffer, this worried me. I’ve sold several big-ticket items over the years — cars, a boat, houses, and while I’ve always tried to make sure that the selling price is not too low, it never occurred to me to ensure that the price is not too high. Can it really be an ethics violation to get too good of a deal on something I sell? A. Good question. In theory, it is conceivable that selling something could give rise to an ethics violation. House gift rules prohibit members and staffers from accepting anything of value — including money — unless an exception applies. One of the exceptions allows receipt of something for which the recipient pays market value. Conversely, the House Ethics Manual says an improper gift may exist when a member or staffer is sold property at less than market value, “or receives more than market value in selling property.” In practice it would be hard to imagine the House Ethics Committee would deem it an ethics violation for a member or staffer to negotiate a good deal in an arms-length transaction. Absent evidence the deal resulted from some sort of conspiracy between the seller and buyer, it seems unlikely the Ethics Committee would be concerned.  

Earlier this month, an advocacy group sent a letter to the Office of Congressional Ethics requesting an investigation into whether Schock improperly sold his house at a price above market value. The OCE is the organization that screens ethics complaints by the public against members and staffers to determine whether further review is warranted by the House Ethics Committee.  

Bundling Campaign Contributions Is Legal, but Carries Risks | A Question of Ethics

Q. I read about a recent court case where a lobbyist was sent to jail for arranging for a large group of people to make contributions to the campaign of Sen. Harry Reid, D-Nev. I had always thought that it was okay for someone to help organize a big group of campaign donors. Isn’t this known as “bundling,” and isn’t it legal? A. Yes and yes. Bundling is a common practice and is, in fact, legal. But, the case you’re describing involved not merely bundling, but a more nefarious practice.  

First, let’s talk about bundling. As you know, a bundler is someone who gathers campaign contributions from people within a particular organization or community and presents them to a campaign. Campaigns value bundlers for their connections and ability to drive large amounts of revenue. Broadly speaking, with some limitations, bundling is legal.  

May Staffers Participate in SOTU Gambling Pools? | A Question of Ethics

Q. I’m a longtime House staffer, and every year for the State of the Union address I host a party with a big group of friends, including many other staffers. One of the most popular traditions at the party is a “word pool” where guests are all assigned certain words at random, and the winner is whoever’s words are heard most often in the address. (I won’t mention what this year’s magic words are.) I always send around emails in advance to administer the pool and solicit entries. This year, one of the invitees told me I shouldn’t be sending these emails from work, using House email addresses. Does this really matter? A. As a lawyer, I can tell you that we lawyers hate to say no. If the law prohibits a client’s proposed course of conduct, we like to try to find other ways clients can achieve their goals without running afoul of the law. In this case, however, I have to take the unpopular role of party-pooper and say your friend is probably right. I don’t make the rules. I just report on them. And, technically speaking, the rules do in fact prohibit running betting pools on government time with government resources, even one as innocent as this. This issue sometimes receives attention during March Madness, when millions of people across the country enter betting pools, hoping their bracket will be the winner. The law does not necessarily forbid congressional employees from participating in friendly pools such as this. If it did, there would be thousands of violations every year. But, the law does have something to say about when and how federal employees may participate.  

Specifically, the law bans gambling of any kind by a government employee while “on duty.” It states: “While on Government-owned or leased property or on duty for the Government, an employee shall not conduct or participate in any gambling activity.”  

May Former Staffers Discuss Legislation With Current Staffers? | A Question of Ethics

Q. I have just completed more than a decade of service as a House staffer and am now preparing for a job in the private sector. I know there are rules about what I can and cannot do, and I am trying to make sure I understand them all. I am particularly concerned about restrictions on my communications with former staffers, as I have many friends on the Hill whom I am sure I will still often see. I know I can’t lobby them during the cooling off period, but what if I run into some of them, we start talking shop, and they ask what I think about a proposed bill? Am I not allowed to answer? A. It happens every two years. A host of new members and staffers arrive on the Hill, while a host of old ones move out. And, just as the newbies must quickly learn rules governing congressional employees, those moving into the private sector must familiarize themselves with the restrictions on former Hill staffers. There are many, so you are wise to be concerned.  

The specific restrictions you’ve asked about apply during the “cooling-off period” and limit what members and staffers can do within one year of leaving the House. As you may know, the restriction does not apply to all staffers, only to those whose salary is at least 75 percent of members'. I’ll presume this includes you, but mention it just in case.  

The Year in Government Ethics | A Question of Ethics

As long as there are governments, there will be government corruption. The temptations to abuse power are never going away, and neither is human frailty, which means government ethics will remain an important issue for, well, forever.  

A look back on 2014 reveals yet another year of explosive government ethics stories, scandals and legal developments. As has been the custom for the year’s final column, I asked several of the top practitioners in the field to name the biggest government ethics stories of the year. Before turning to those, I have one of my own to mention for its impact on the actual day-to-day operations of the practice of congressional ethics. Last month, John Sassaman stepped down as chief counsel of the Senate Select Committee on Ethics, a position he held for more than six years. Sassaman presided over many high-profile investigations during his tenure and, perhaps more importantly, led a staff that was invariably prompt and thoughtful in responding to questions about Senate Ethics rules. Long known as one of the most well-liked employees of the Senate, Sassaman leaves big shoes to fill.  

What Does a Gift Tag Have to Do With Breaking the Law? | A Question of Ethics

Q. I worked on the campaign of someone who has just been elected to the House of Representatives for the first time, and I expect to work for him in the House as well beginning in January. I recently met with some experienced staffers to learn the ins-and-outs of working on the Hill. One thing they filled me in on is how strict the gift limitations are, but what really stuck out was that the permissibility of a gift supposedly can depend somehow on the language of the tag or card that comes with it. I had trouble wrapping my head around this. Is this really true? A. First, congratulations to you and your boss. Exciting times ahead.  

As for your question: Yes, believe it or not, the language on a card attached to a gift can impact the legality of accepting it. In fact, some language on a gift tag could expose you and the donor to serious liability.  

Are Members Permitted to Help Companies in Which They Own Stock? | A Question of Ethics

Q. I heard that Rep. Tom Petri, R-Wis., may face ethics discipline because he assisted companies in which he owned stock. I know that Members are not supposed to use their position for their own personal gain, but I didn’t realize that meant they are disqualified from taking action on behalf of any companies in which they might own stock. Is that really the rule? A. No, it is not. A member’s mere ownership of stock in a company does not disqualify the member from taking official acts on the company’s behalf. But, as the Petri matter illustrates, members should take special care when they assist companies in which they happen to own stock. Exactly what that means, unfortunately, is less than clear.  

In a report made public last month the Office of Congressional Ethics, which filters allegations of misconduct for review by the House Committee on Ethics, concluded there is substantial reason to believe Petri “improperly performed official acts on behalf of companies in which he had a financial interest.” The OCE therefore recommended further review by the House Committee on Ethics, which it is now considering.  

Can Answering a Campaign Call Break the Law? | A Question of Ethics

Q. As an aide to a Member of the House, I have a question about the rule requiring the separation of campaign work from official House activities. In our office, we are generally careful about keeping these separate. But, one problem we run into time and again is that people outside the House are not at all familiar with the distinction. For example, we frequently receive calls or emails about the Member’s upcoming campaign at our Member’s House office. We don’t want to run afoul of the rules. But, we don’t want to ignore folks either. What can we do? A. Campaign season is upon us! Does it ever really go away?  

Yes, campaigning has become a year-round activity, and members and staffers must always be mindful of rules governing campaign activity. But, as November approaches, the increased activity and urgency makes the risk of violations grow even greater.  

When Is a Tweet an Ethics Violation? | A Question of Ethics

Q. As a staffer for a Member of the House, one of my responsibilities is to run his official Twitter and Facebook accounts, and I have a question about permissible uses of those accounts. The Member occasionally likes to help political allies by making public endorsements during their campaigns. I figure it is okay to announce these via Twitter as I have seen other Members do it, but another staffer in our office said the rules might not allow it. It’s not really against the rules to tweet endorsements of other candidates, is it? A. Are there restrictions on members’ use of Twitter? You bet there are.  

The restrictions derive from a fundamental principle about the permissible uses of federal funds: “Appropriations shall be applied only to the objects for which the appropriations were made.” Put another way, when Congress allocates federal funds for a particular purpose, the funds may be used only for such purpose.  

Did House Travel Disclosure Rules Change? | A Question of Ethics

Q. I am hoping you can clear up some confusion about the controversy over news that the House Ethics Committee changed the rules to limit Members’ disclosure of gifts of free travel on annual financial disclosure forms. The reactions seemed all over the place. Some said that it was a big step backwards. Others said that nothing really changed. So, what’s the story? A. Last week, travel disclosure requirements for members and staff did indeed make news when National Journal published an article titled, “Congress Quietly Deletes a Key Disclosure of Free Trips Lawmakers Take.” According to the article, the House Committee on Ethics reversed three decades of precedent by eliminating the requirement that privately sponsored travel be included on members’ and staffers’ annual financial disclosure forms.  

Uproar ensued. Ethics advocates cried foul. Bloggers blogged. Nancy Pelosi vowed to push for legislation if the Ethics Committee did not reverse its “new rule.”  

Why Can’t Hill Staff Contribute to Their Boss’ Campaign? | A Question of Ethics

Q. I am a staffer for a member of the House and I have a question about restrictions on campaign contributions. I saw that Rep. Steve Stockman, R-Texas, was under investigation for accepting campaign contributions from employees of his congressional office. Generally, I know that this is not OK, but I don’t really understand why. It seems to me that congressional staffers are among those who would most want to donate to members’ campaigns. I know I’d like to donate to my member’s campaign. He could use it, and I believe in him. Why can’t I donate? A. Last week, the House Committee on Ethics published a March report by the Office of Congressional Ethics concluding that there is substantial reason to believe that Rep. Steve Stockman broke the law by accepting contributions from donors who were employed by his congressional office at the time the contributions were made. The OCE is an independent, entity created in 2008, to screen allegations of ethics violations for potential review by the House Ethics Committee. When the OCE refers a matter to the ethics committee, the committee must determine whether to pursue its own investigation. Unless the committee elects to dismiss the matter, committee rules typically require it to publish the OCE investigative report while proceeding with its own further investigation.  

The OCE report cites several potential violations of federal statutes and House rules, but your question concerns campaign contributions from congressional staff. According to the report, in February 2013, Stockman’s campaign committee received contributions from two employees of his congressional office. One was a director of special projects, and the other a special assistant. Stockman’s campaign committee, the report stated, filed Federal Election Commission reports first identifying the contributions as being made by family members of the employees — the father of the director of special projects and the mother of the special assistant. After an ethics advocacy group raised questions about the contributions, Stockman’s campaign filed two amended reports, the first attributing the contributions to the congressional employees themselves, and the second stating that the contributions had been refunded to the employees.