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Holiday Party Guest Lists: Check Them Twice

I am a registered lobbyist with a question about holiday parties. Next month is our family’s annual holiday oyster roast. It’s a huge dinner party at our home, with more than 100 guests, thousands of oysters, Virginia ham, Brunswick stew and lots of good wine and beer. My question concerns whom I may include on the guest list.

In particular, last month a House staffer moved into the house next door. We do not know him well yet, but we plan to invite him anyway, as it is a longtime family tradition to include everyone on our street. Before inviting him, I wanted to confirm that the invitation would not violate the new restrictions on lobbyists. I don’t think it would because our oyster roast is a widely attended event. Is that right? Or am I required to leave him off the list, while inviting everyone else on the street?

[IMGCAP(1)]A: When preparing a guest list for a holiday party, a host’s biggest risk used to be omitting someone who might take offense. Now, when lobbyists are the hosts, they could face an even bigger risk: going to jail for inviting someone they should not have. As odd as that might seem, it is yet another consequence of the breadth of the recently enacted Honest Leadership and Open Government Act.

As you are no doubt aware, that act requires registered lobbyists to comply with the Congressional gift rules. Here, since your question concerns a House staffer, the House gift rule applies. That rule prohibits Members and staffers from accepting any gift, unless an exception applies. Therefore, whenever you think you may need to apply the gift rule, there are always two questions to ask. First, is there a gift? And second, does any exception apply?

For the first question, the place to start is the definition of “gift.” After all, if there is no gift, there can be no gift rule violation. Admittedly, if I had to characterize some of the holiday parties I have attended over the years, “gift” would not leap to mind. However, the House rule’s definition is broad and captures more than just what Santa leaves under the tree. It includes, among other things, favors, gratuities, entertainment, hospitality and any other item having monetary value. Under this definition, there seems a good chance that the ethics committee would consider attendance at your party, with all the food and drinks that go with it, to be a gift.

If the invitation is a gift, the next question is whether any exception applies. Your suggestion is the exception for widely attended events, which allows Members and staffers to accept free attendance at such events when certain criteria are met. Unfortunately, it would be difficult to argue that your party meets the criteria. The exception typically covers events like meetings of trade groups and professional associations. Most significantly, in order for the exception to apply, the staffer’s attendance would need to be in connection with his or her official duties. Here, unless your neighbor happens to work for the Subcommittee on Brunswick Stew (which, of course, debates whether squirrel is an essential ingredient), it would be hard to argue that his attendance would somehow be connected to his official duties.

Another exception to consider for holiday parties allows staffers to accept food and refreshments of a nominal value offered other than as part of a meal. The ethics committee has interpreted this provision to allow Members and staffers to accept “the kinds of food and refreshments usually offered at receptions (such as hors d’oeuvres, appetizers and beverages).” Unfortunately, while the offerings at some holiday parties might meet this definition, the fact that your spread is intended as dinner makes it unlikely to qualify.

One final exception that can apply to some holiday parties covers gifts given on the basis of personal friendship. Again, however, it is unlikely that you meet the criteria. In applying this exception, one of the factors the ethics committee considers is the history of the relationship between the donor and the recipient, including any previous exchange of gifts. Here, you say that you do not know the staffer well, so the exception does not seem applicable.

There also is the question of whether you intend to invite any other Members or staffers to your party. If so, before sending them invitations, you should study the criteria of the personal friendship exception to make sure it applies to each one. In the spirit of the season, many holiday party guest lists are very large and include invitees who might not meet the specific criteria of the personal friendship exception.

Regardless of whether you intend to invite other staffers, the options that the ethics reform gives you with respect to your neighbor don’t seem all that, well, neighborly. You could leave him off the list altogether. You could invite him but instruct him not to eat (perhaps he could just taste the stew). Or, you could seek the approval of the ethics committee. Unfortunately, the committee provides advisory opinions only to House employees, so, if you went this route, you would have to suggest that your neighbor seek the committee’s approval himself.

If you can’t stomach any of these options and you choose to ignore the rules altogether, you do so at your peril, as the possible sanctions are more serious than mere coal in your stocking. Knowing violations of the Congressional gift rules can result in heavy fines, while corrupt violations can lead to up to five years in jail. Of course, unless Scrooge himself has recently joined the Justice Department, it seems unlikely that federal attorneys would investigate you for observing your tradition of inviting all your neighbors to your holiday party. Yet, you might not want to be the one to test their holiday spirit. “’Tis the season to be jolly” is not much of a legal defense.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.

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