The rules package approved last week by the newly Democratic House does not make a large quantity of changes, but those made are potentially far-reaching in their effect. In the fresh regulation of campaign funds, or in the role of lobbyists, or the influence of partisanship over downtown hiring decisions, these changes could move the rules in new directions, well beyond the particular rules changes the Members have approved.
The House has prohibited Members from using any funds (official, personal or campaign) to pay for travel on certain private aircraft. Some critics have expressed concern about the scope of this prohibition. Several House Members represent large geographic areas or are pilots themselves and rely on private—as opposed to commercial—aircraft for transportation.
A colloquy on the floor clarified that the rule’s intent is not to prohibit the use of aircraft that a Member may personally own and/or operate. Another objection that the wording precludes any payment for travel on any aircraft seems inconsistent with the rule writers’ intent but may lead to clarification through some change in language.
With this rule, the House is making a significant change in its treatment of Members’ campaign funds. The rules have long prohibited the use of campaign funds for personal and for some official purposes, but never for campaign-related purposes. Traditionally, the House regulated reimbursed travel for official purposes, while campaign travel remained within the jurisdiction of the Federal Election Commission. For its part, the FEC permits the use of and reimbursement with campaign funds for corporate aircraft, establishing rate schedules (first-class airfare, charter rate) depending on the routes traveled (such as between points served by regularly scheduled commercial service).
What the FEC has done, the House has now, in some particulars, rent asunder. The use of campaign funds for some travel permitted by the FEC will be prohibited by House rules. The restriction, intended to guide the ethical standards and conduct of officeholders, does not apply to challengers and open-seat candidates who still will be able to use corporate aircraft so long as they reimburse the corporation under FEC rules.
How far, in practical terms, the prohibition will extend remains to be seen. Some corporations still may have planes to offer if they maintain them within fractional ownerships and provide services licensed for hire under Federal Aviation Administration rules. Nonetheless, the House has taken a major step in regulating the use of campaign funds for a campaign-related purpose. And it has done so to limit corporate influence over the legislative process, long a central goal of the campaign finance laws. The further restriction of the use of corporate aircraft has been advocated by the campaign finance movement. With this change by the House, going further than the FEC was willing to go, it becomes easier to imagine future changes of the same kind.
Lobbyist Attendance at Events.
In the days since the rules were approved, one of the questions often asked is, “What is the effect on individual lobbyist participation in out-of-town events?”
Organizations employing lobbyists may host events out of town, at which Members appear for officially related purposes, but the lobbyists may not have more than a de minimis role in requesting, arranging, planning or organizing them. The House ethics committee defines by rule what that means, but the lobbyist may not “accompany” the Member (or staff) on any “segment” of the “trip.” Does this mean that the lobbyist may not attend the event?
There are arguments both ways. For example, the word “attendance” appears elsewhere in the rules, as in the exception for the financing of “widely attended events,” and so it might be assumed that by not mentioning “attendance,” the rule is not prohibiting it. But the rule also provides that if the lobbyist does “accompany” the Member, the exception is no longer available for any reimbursed expense of the Member — not for any lodging or meals any more than for a transportation expense. So the term “trip” could mean to include the entire event over the course of the day, from the travel to the event through the activities of the day, with the lobbyist prohibited from “accompanying” the Member on any part of the travel or event.
Another question is whether a lobbyist could avoid the restrictions on “accompanying” the Member by traveling to the same location at the same time but for a different event, say, a separate campaign event for the Member. The lobbyist would host or attend the campaign event, at a time and place other than the one scheduled for the officially related event.
The issue for the Committee on Standards of Official Conduct is whether this “separate event” would raise a question under House Rule 23, Clause 2, which compels Members to observe the spirit as well as the letter of the rules. (Under the federal campaign finance laws, this is known as “circumvention.”) If a lobbyist (and his or her employer) scheduled the fundraising event at the same time as the official event, precisely to make the most of the out-of-town opportunity with the Member, the committee could conclude that this was an impermissible end-run around two facets of the rule: a) the prohibition on de minimis involvement in arranging for the Member’s travel; and b) the prohibition on “accompaniment” if the term is construed to apply to the lobbyist’s attendance at (and not only his or her travel to) the event.
Of course, all of these issues can be avoided if the Member forgoes any expense reimbursement. The new rules would permit Members to use campaign or leadership committee funds to pay for travel expenses. However, they cannot pay for private aircraft.
“K Street Project.”
The new rule to prohibit partisan pressure on private employment decisions (“Ending the K Street Project”) is directed by its terms to “an employment decision or employment practice of any private entity.” Partisanship may not be the basis for taking, withholding or influencing any official act—or threatening or offering to do this—where the purpose is to influence private employment decisions. The broader principle at work here — keeping politics out of the commitment to perform or not perform official acts—may prove more significant over the long run than the specific prohibition on K Street-type projects.
Already, the United States code contains various provisions banning certain exercises of official authority to coerce political contributions. Moreover, the House and Senate ethics committees have, in various cases, expressed concerns about the improper (in the Senate’s words) “linkage” between official action and the pursuit of partisan political projects, especially in raising money. Now the House in the K Street Project rule has identified another instance in which official power is improperly put to the service of partisan purpose. Bearing in mind the House rule’s injunction that Members pay heed to the rules’ “spirit,” further applications of this principle could lie in store. This new rule may be cited beyond its specific application to private employment decisions.
Valuation of Tickets to Sporting and Entertainment Events.
To the apparent unhappiness of the Washington Wizards, a new rule provides specifically that a ticket to a sporting or entertainment event should be valued at the commercial face value; or if the ticket (such as a skybox pass) has no face value, then the applicable charge should be the face value of the most expensive ticket to the event. The Wizards’ public disappointment is mystifying since this rule has been in effect in the House (although not in the Senate) for years. While the immediate effect of the “new” rule is to address the special case of sporting and entertainment events, a larger consequence is to put lobbyists on notice about the dangers attendant in valuing any item provided to a Member for payment.
The new rules allow lobbyists to interact with Members under the exceptions to the gift rules, one of which excludes from the definition of a “gift” anything the Member pays fair market value for. That the Member pays for the item does not make the exception unimportant. Often the value to the Member is the availability of the item for purchase: The lobbyist, while requiring payment, has been able to secure something that otherwise might be in short supply. By implication, and once again with reference to the spirit of the rules, the new valuation rule places pressure on the lobbyist offering for purchase items of any kind to identify its true commercial value—and to err on the highest, not the lowest or most discounted, charge on the market.
Meals and PAC Checks.
We also note here a lingering misconception that the effect of the gift rules can be mitigated by merely providing a Member with a political action committee check in the course of an expensive meal hosted at a restaurant. Even before the recent rule changes, the ethics committee never sanctioned this practice or indicated that gifts outside the limits could be made under the pretext that they were campaign-related.
For example, every four years both Senate and House committees advise Members that activities at national conventions—the locations for much wining and dining, in a highly political setting—are not exempt from the ethics rules. Congressional personnel are permitted to go to “widely attended events” and receptions, but not to private meals, the expense of which is paid by a lobbyist or his or her employer. Here, as with all the rules, the “spirit” of compliance as well as the letter of a rule are important and fully enforceable under Congressional standards and practices.