To contribute or not to contribute

Most lobbyists may find themselves requesting assistance from a member of Congress, such as the introduction of a bill or amendment, while at the same time raising or being asked to raise money for that same member.

One of the requirements of the Honest Leadership and Open Government Act is that registered lobbyists and the entities that employ them disclose on a semi-annual basis their donations to lawmakers’ campaign committees. It also requires members of Congress to disclose the identity of the registered lobbyists who raise amounts in excess of $15,000 for their campaign. All of this information will be easily accessible.

There is growing concern among lobbyists about the scrutiny their fundraising activities will face from interested parties — such as competitors, public interest groups and law enforcement officials. These groups will examine whether a contribution made to the lawmaker with whom a lobbyist is working was actually a bribe or an illegal gratuity.

Although not the only factor, a prosecutor would consider the timing of when a campaign contribution is made as part of the decision to charge a violation of the bribery of illegal gratuities statute. At what point does making a contribution to a member with whom the lobbyist is working rise to the level of bribery or an illegal gratuity? How long must a lobbyist wait after the requesting or completion of an official act to make a campaign contribution?

Given the fact that Congress is always in session, there are no “timeouts” that could be used as a safe harbor.

Some lobbyists say that they will not contribute prior to a vote or introduction of a bill lest they be accused of having offered a bribe. Many also have a personal rule that they will not give a contribution until after the action was taken. That, of course, opens the door to a possible illegal gratuity charge.

In 2004, the House Committee on Standards of Official Conduct admonished then-Majority Leader Tom DeLay (R-Texas) for his participation in and facilitation of an energy industry fundraiser, which created the appearance that donors were being provided special access and contributions on the eve of an important conference committee meeting. The committee reiterated longstanding House (and Senate) ethics guidance that members should refrain from fundraising from industries that are the subject of near-term congressional consideration.

Thus we know (at least from a congressional ethics perspective) that the weekend before an important vote is too close; but what about two weeks, or two months?

Recently, Sen. Arlen Specter (R-Pa.) offered an amendment to a pending anti-corruption bill that would have carved out a specific exemption from the illegal gratuity statute for campaign contributions. That amendment was overwhelmingly defeated. Sen. Specter is no apologist for lobbyists and their fundraising activities, but it appears that he was recognizing two very clear realities in Washington. One is that, by and large, members of Congress aggressively raise funds to meet the increased costs of seeking reelection; and two, often the targets of the solicitations for contributions are lobbyists who have business either before them or other members of Congress.

What is a lobbyist to do? Other than not raising any money for members of Congress, they should be very careful never to give campaign contributions or host fundraisers as a thank-you for the support that a lawmaker has given to their client or to their industry.

They should also adopt a reasonableness test in terms of timing. Fundraisers on the eve of a committee markup or hearing should not occur. The same applies to asking for other, more minor official acts, such as the insertion of material in The Congressional Record or requesting that a letter be sent to a government agency.

The more time between making a campaign contribution and requesting official action, the better. As tempting as it might be, members and lobbyists alike should avoid talking about issues at fundraisers — even if asked to do so by the member of Congress who is the beneficiary of the event.

Finally, Congress could take bold action. It might consider adopting a provision found in many state legislatures that bans the raising of funds during certain periods of time, such as during the first session of a Congress. And, of course, Congress could ban campaign contributions entirely and enact a public financing system.

In an age of greater transparency and more aggressive law enforcement efforts, lobbyists would be wise to think about how their fundraising activities will be viewed by those who will certainly scrutinize them carefully. And, of course, members should be equally attentive to these concerns as well.

Thomas Spulak served as staff director of the House Rules Committee, then as general counsel to the House of Representatives. He is now a partner in the Public Policy and Government Affairs Practice Group at King & Spalding.