Fundraising is a tricky business

We’re just over 100 days into the new Congress and lobbyists are being inundated with fundraising requests in support of elections that will not take place for more than 20 months. 

Some of those requests are going to lobbyists who are seeking official acts from a member of Congress asking for the contribution. Official actions include voting in committee or on the floor; the introduction or co-sponsorship of legislation; letter writing in support of or opposition to legislation or a regulation; making a floor statement; or inserting remarks in the Congressional Record. In such circumstances, many lobbyists ask whether and when is it proper to make a political contribution. 

{mosads}A report recently issued by the House Ethics Committee provides significant guidance in this area. That report detailed its consideration of matters referred to it by the Office of Congressional Ethics (OCE) stemming from OCE’s investigation of seven members who accepted contributions from a number of named individuals and political action committees. OCE believed the members’ actions gave the appearance that contributors received special treatment or access or that campaign contributions were linked to official acts. The contributors were also included in OCE’s investigation. 

In its own review, the Ethics Committee found that the fundraising activities of the seven members raised no appearance of impropriety, nor did the members in question violate any law or other applicable standards of conduct.

What are the lessons learned from these investigations? The factors that served as the basis for the Ethics Committee’s conclusion should be ingrained in the minds of all lobbyists and applied each time a lobbyist considers making a campaign contribution to a member from whom they are seeking official action. Those factors included the following:

Each member had strict separation between all fundraising activities and legislative activities by hiring a professional fundraising consultant to manage all aspects of fundraising events. It follows, then, that when planning a fundraising event for a member or responding to an invitation, a lobbyist should communicate only with the member’s fundraiser and not with anyone on the member’s legislative staff. This applies even to instances where a member has staff authorized to engage in fundraising activities. 

Each member’s fundraising consultant generally planned events several months in advance and invited thousands of people without restricting invitations solely to individuals associated with a particular industry. Thus if a lobbyist intends to host a fundraising event for a member, avoid scheduling that event proximate in time to events that are important to the host or to a majority of attendees at the event. For example, an energy lobbyist should not schedule a fundraiser for a member of the House Energy and Commerce Committee prior to or immediately after a committee vote on a bill affecting the energy industry.

Each member’s fundraising events were brief and without any substantive legislative discussions between the members or any legislative staff and any attendees. Here is a cardinal rule — Avoid substantive discussions during fundraisers. Period. As tempting as it may be, it should be avoided. A corollary to this is, avoid having industry events immediately after a member has performed some official action. Giving campaign contributions as a “thank you” for an official action could violate the federal gratuity statute, which prohibits giving anything of value, including a campaign contribution, to an official for or because of his/her official act.

A member should avoid official conduct that would appear to a reasonable, thoughtful and well-informed person to be improperly connected to campaign activities. While one should be confident that a member or their staff would never ask a lobbyist to do anything improper, through sloppiness or inattention to detail (or poor scheduling), a solicitation for an event could later become embarrassing to the potential donor. Don’t be afraid to say no to a particular event. In this age of prolific fundraising, one can always find another opportunity to contribute at a later date when external factors have changed. Moreover, feeling compelled to contribute at particular point in time during the legislative season should raise a red flag that the contribution should not be made.

For a lobbyist, the decision of when to make a campaign contribution should be considered as carefully as whether to make one. As the OCE investigation clearly indicates, the activities of lobbyists are being closely watched.

Spulak is a King & Spalding partner and chairman of the firm’s Government Advocacy and Public Policy Practice Group. He served as a Democratic staff director and general counsel of the House Committee on Rules, and as general counsel to the House.