By Thomas Spulak - 06/09/09 07:26 PM EDT
A growing number of lobbyists are becoming concerned about the legality and appearance of campaign contributions at a time when lawmakers are being asked to support provisions, including earmarks, in appropriations bills.
Many lobbyists are concerned about contributing at all. Are these concerns justified? The issue is highlighted in recently introduced legislation that would prohibit lawmakers from accepting contributions from entities that are seeking congressional earmarks.
H.R. 2038, the Clean Law for Earmark Accountability Reform, or CLEAR, Act, introduced by Reps. Paul Hodes (D-N.H.), Gabrielle Giffords (D-Ariz.) and Tom Perriello (D-Va.), would prohibit the acceptance of contributions from a political action committee (PAC), senior executive and/or lobbyist for an entity that is the subject of an earmark request.
Campaign contributions legally sought and given were once thought to be generally immune from serving as the basis for a prosecutor’s scrutiny.
But as the PMA case appears to indicate, it is not only possible but likely that prosecutors are investigating lobbyist-contributors and lawmakers for possible violations of the public corruption laws. Such an investigation would focus on whether a contribution was given in exchange for or because of an official act. An official act could include any number of things that a member of Congress does on a daily basis at the request of a lobbyist, such as the introduction of a bill or an amendment, support for or opposition to a bill in committee or on the House or Senate floor or even the insertion of remarks in the Congressional Record. The investigation also would focus on whether the parties had a corrupt intent in offering or receiving the contribution.
Of the thousands of registered lobbyists and others with an interest in legislation, it is safe to say that few intentionally make a contribution in exchange for congressional action. Nevertheless, with the increased reporting of contributions and lobbyist activity under the Lobbying Disclosure Act of 1995, it is predictable that questions will arise about whether contributions were given in exchange for a desired outcome. Short of not contributing at all, what can a donor do to protect against even the question of impropriety?
Certainly, lobbyists should avoid any appearance that a campaign contribution is made with the expectation that it will result in an official act or, again, because of an official act that has been performed. Lobbyists should avoid hosting and contributing at industry or issue-focused events that “honor” a member who is instrumental in the consideration of legislation that is beneficial to the industry. Lobbyists should never send campaign contributions with a note that expresses gratitude for a lawmaker’s support of a piece of legislation, provision or action. When soliciting contributions from eligible employees to a corporate PAC, executives should be very careful not to describe the PAC as a way of buying access or influence, or benefiting the commercial interests of the corporation. Amazingly, solicitation letters often say all of those things.
Members of Congress can help the situation as well. They can avoid scheduling fundraising events close to committee hearings or markups and inviting industry and interests that are relevant to that congressional activity. Lawmakers should avoid talking about official actions at events they sponsor. Perhaps out of gratitude for the contributing attendees, how often do members ask those in attendance to discuss the issues on which they are working? Perhaps they have no intention of following up on what they are being told, but why put lobbyists in what could be a compromising situation?
Knowing and understanding the law and applying that knowledge on a regular basis should be a fundamental practice of every lobbyist. Absent improper intent, the making of campaign contributions by lobbyists is a legitimate exercise of First Amendment-protected rights.
In order to avoid any appearance of impropriety, however, there may well be times when a lobbyist is so deeply involved in requesting action from a member of Congress that the making of a campaign contribution should be avoided. That could include contributing to lawmakers from whom support for an earmark is being sought.
Spulak is a King & Spalding partner in the Government Advocacy and Public Policy Practice Group. He served as Democratic staff director and general counsel of the House Committee on Rules, and as general counsel to the House.