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.”  

The OCE report focuses on Whitfield’s wife’s work for the Humane Society Legislative Fund, a lobbying affiliate of The Humane Society that advocates for laws protecting animal welfare. The report states that between 2011 and 2014, Whitfield’s wife contacted his staff on several occasions about advocacy strategy, selection of legislative co-sponsors, drafting of bills and obtaining his support for legislation. Whitfield’s staff, the report says, also scheduled “as many as 100 meetings” with other congressional offices for the boss’s wife and the HSLF and held joint meetings among Whitfield, his wife and other members to promote the HSLF’s interests.  

The report cites several emails as evidence Whitfield’s wife had contacts with him and his staff in her role as a lobbyist. For example, when a public affairs employee of The Humane Society asked if a bill could be introduced in time to add it to the farm bill for House debate, Whitfield’s wife responded “Yes!” and said she was working with Whitfield and his staff on it. In another example, she wrote to Whitfield’s chief of staff: “Please be sure Ed votes FOR the Peters amendments today (banning polar bear imports and hunting in Natl Parks.)”  

In response to the report, Whitfield’s attorney urged the committee to dismiss the matter, arguing the communications cited in the report were not “lobbying contacts.” Rather, Whitfield’s attorneys said, the communications “were in furtherance of a shared interest in animal welfare legislation.” Whitfield has been a longtime supporter of such legislation, since well before his wife became a lobbyist, and “his staff acted in accordance with his policies and directives, not those of his spouse.” Moreover, Whitfield’s wife often spoke with him as a spouse — “a trusted confidant of her husband and one of his most important personal and political advisers.” For example, the report includes an instance of Whitfield’s wife advising him not to sign a bill favored by the HSLF because it was unpopular among key constituents in his district.  

So, what is a “lobbying contact?” According to official federal guidance, it is a communication to a member or staff that is made on behalf of a client with regard to the “formulation, modification, or adoption of Federal legislation.” Whether Whitfield allowed his wife to have any such communications will ultimately be for the Ethics Committee to decide. If so, Whitfield could face discipline.  

But, when the committee does reach a decision, perhaps it will provide further guidance on appropriate communications between a lobbyist and her spouse’s staff when her spouse is a member of the House. No, not every such communication counts as an illegal lobbying contact, regardless of content. But, as the Whitfield case shows, there may not always be a clear line between permissible marital communications and impermissible lobbying contacts.  

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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