ethics corner

May 2007

Flurry of Lobbying Reform Affects Defense Industry

By Dave Hickey

Congress with a frenzied frequency is introducing government reform legislation. Proposals are labeled “lobbying reform,” “accountability in contracting,” “clean contracting,” “anti-profiteering” and “honest leadership” — all aimed at ending what some members allude to as the culture of corruption in Washington. Myriad proposals will never pass. Those that do will likely be modified substantially beforehand. Nevertheless, the defense industry and others engaged in Washington policymaking inevitably will be affected.

While corporate leaders do not necessarily need to become experts in the nuances of House and Senate rules governing gift giving, lobbying laws, or similar legislative ethics matters, they should stay abreast of developments on these issues to assess the propriety of conduct by company employees and outside lobbyists, and to address potential risks where they exist. House and Senate internal rules govern appropriate behavior by members of Congress and their staff. Based upon recent measures, increased compliance requirements have also been imposed on lobbyists and those companies that employ them. Compliance with those rules will ensure that serious, potentially criminal violations will not occur.

This year, the House amended its gift and privately-sponsored, officially-connected travel rules. As to gifts, in most instances House rules previously permitted members or employees to accept a gift valued at less than $50. Now however, even this exception is unavailable if the gift comes from a registered lobbyist or agent of a foreign principal, or from a private entity that retains or employs registered lobbyists or agents of a foreign principal. Thus, members and staff may no longer accept gifts, such as meals or tickets to a sporting event, from a registered lobbyist, or any entity that retains or employs such a lobbyist, including in-house corporate lobbyist staff. This ban extends to corporate staff outside the lobbying group if the gift in question is to be reimbursed or otherwise paid for by the corporation.

Exceptions to this bar on gifts from lobbyists and companies that employ them include free attendance (including food and refreshments) at a “widely attended event,” as defined in the rules. Food or refreshments of a nominal value, such as appetizers, coffee, juice, or pastries offered other than as part of a meal at receptions and similar events also fall outside of the ban. Items of a nominal value — greeting cards, baseball caps, or T-shirts — similarly are still permitted, as are gifts based on a genuine personal friendship, gifts from a relative, informational materials, commemorative plaques, and donations of “home state products” for display or free distribution.

The House also modified its travel rules, imposing new restrictions on lobbyist sponsorship, accompaniment, or planning of most trips by members and staff. Like the amended gift rules, the new travel rules ban the acceptance of travel or travel expenses from private entities (including nonprofits) that retain or employ a lobbyist. An exception for “one day events” (including travel and a single overnight stay) permits sponsorship from a private source that retains or employs a lobbyist, but lobbyist accompaniment is barred under this exception. Lobbyist participation must also be negligible or otherwise inconsequential to the overall planning and purpose of a one-day trip. The House rules still generally permit sponsorship of travel, including multiple-day event trips, from any sponsor other than a lobbyist or private entity that retains or employs them. But all privately-funded travel must now be approved by the House Ethics Committee and pre-travel certification by the trip sponsor is required. Post-travel disclosures by members and staff is also required. In reviewing travel requests, the Ethics Committee will determine whether a trip is related to official duties and the reasonableness of the travel expenses. The disclosure essentially states that the trip will not be financed in any part by a lobbyist, that the source does not retain or employ a lobbyist, and the traveler will not be accompanied by a lobbyist. While most of these are internal House rules applying to members their staff, no company in good standing wants to jeopardize relationships or reputations. Furthermore, the pre-travel certifications, which trip sponsors are obliged to provide, may be subject to federal criminal law that imposes sanctions for knowingly making material false statements to the government.

Like the House, the Senate also banned gifts and meals from lobbyists or from entities that hire lobbyists, and restricted travel sponsored by private entities. Beyond amending its own internal gift and travel rules, the Senate also approved the “Legislative Transparency and Accountability Act” which, if passed by the House and signed by the president, will impose significant compliance obligations in these areas on private entities that House and Senate rules alone cannot. More frequent lobbying disclosure reports, reports of campaign contributions over $200 by lobbyists, and additional disclosure of any travel or events sponsored for members of Congress would be required. New lobbying reports would require certification that the lobbying firm or organization, and each employee listed as a lobbyist, has provided no gifts or travel to any member or staff in violation of House or Senate rules. Under the proposed law, knowing, willful and corrupt violations of the law, including violations of the gift and travel rules, are punishable by up to $200,000 in fines and up to 10 years in prison.

David Hickey is an attorney with the Greenberg Traurig law firm. The opinions expressed here are solely those of the author and are not intended to provide legal advice or represent the view of NDIA or the NDIA Ethics Committee.

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