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Is Congress Allowed to Influence K Street Hiring Decisions?

As an activist for ethical government, I am watching closely the reports that Democrats in Congress are pressuring K Street employers to hire more Democrats. In several Roll Call articles, I have read that they are frustrated about the shortage of Democrats hired by trade associations, lobbying firms and corporate government relations departments, and that they may take action to correct this perceived shortage. Doesn’t last year’s ethics reform prohibit Members from pressuring employers regarding hiring decisions?

[IMGCAP(1)]A: In the nine months since Congress enacted the Honest Leadership and Open Government Act, much of the discussion among Members, staffers and ethics lawyers has focused on the new restrictions on gifts and lobbying. Your question concerns a provision that has received comparatively little attention — the provision aimed at “Ending the K Street Project,” which makes it a crime for Members and staffers to exert certain types of influence upon the employment decisions of private entities. Violations can result in heavy fines and up to 15 years in jail.

The law came in the aftermath of the “K Street Project,” which loosely described efforts by Republicans in Congress to pressure lobbying firms and other private employers to hire Republicans. Upon its passage, Members issued press releases declaring that the provision “ends the pay-to-play scheme known as the K Street Project,” puts “an end to the influence peddling K-Street Project,” and “prohibits private entities from hiring and firing based on politics.” Sen. Bob Casey (D-Pa.) said on the Senate floor that the legislation was aimed at “anyone who would engage in the practice of wrongfully influencing a private entity’s employment decisions and/or practices … in exchange for political access or favors.”

In light of this rhetoric, I can see why you might think that Democrats’ recent efforts to ramp up pressure on K Street employers could violate the new law. For example, you probably wondered about Roll Call’s report that senior Democratic aides recently met with key lobbyists to push them to abandon their allegiance to the GOP. It’s this pressure that many government ethics advocates like you seek to end.

Yet, a closer look at the language of the new statute reveals that it does not target all types of pressure on lobbyists’ hiring decisions and that merely demanding that employers hire Democrats does not alone violate the statute. Rather, other circumstances must be present as well. For one, the statute applies only where the Member or staffer exerting the pressure offers to take or withhold an official act for purposes of influencing the hiring decision.

Moreover, a last-minute change just before passage narrowed the new law’s scope even further. As initially drafted, the law would have made it a crime for a Member or staffer to offer to take or withhold an official act “with the intent to influence, on the basis of partisan political affiliation, an employment decision or employment practice of any private entity.” The version that actually passed is identical except that it inserts the word “solely” before “on the basis of partisan political affiliation.”

This change is not insignificant. It means that a Member or staffer who offers to take an official act with the intent to influence a private entity’s employment decision cannot be found guilty unless a prosecutor can show beyond a reasonable doubt that partisan political affiliation was the only reason for influencing the employment decision. Thus, a defendant who has some other, additional reason for influencing the employment decision — such as competence, personal friendship or committee experience — is not guilty under the statute.

However, the narrow scope of the new law does not mean that Members and staffers should feel free to pressure employment decisions. First, the difficulty prosecutors might face in obtaining a conviction under the statute would not necessarily deter investigations of potential violations. Given the substantial burden, expense and bad publicity that such investigations involve, Members and staffers have good reason to avoid conduct that might give rise to investigations.

Second, the ethics rules of both chambers now contain the same restrictions as those in the new statute. Unlike criminal sanctions, penalties for violations of Congressional ethics rules do not require proof beyond a reasonable doubt. Thus, Members and staffers who improperly influence private entities’ employment decisions may be more vulnerable to an ethics violation than a criminal conviction.

Third, the language in the House ethics rule omits the word “solely.” Therefore, in the House, a Member or staffer commits an ethics violation whenever he offers to take or withhold an official act with the intent to influence an employment decision or employment practice of any private entity on the basis of partisan political affiliation. This may be true regardless of whether political affiliation was the sole basis.

Finally, even where improperly influencing the hiring decision of a private employer does not violate the new statute or new ethics rules, the ethics committees might still conclude that such activity violates some other ethics rule. For example, both chambers generally forbid conduct that does not reflect creditably on Congress. The House and Senate ethics committees have exercised broad jurisdiction in applying these general prohibitions to all kinds of improper conduct, even where the conduct does not violate a specific rule.

So, to return to your question, last fall’s ethics reform does increase the potential for liability to arise from pressuring employers about their hiring decisions. However, the narrow language of the new statute and ethics rules — particularly the insertion of the word “solely” — means that the new restrictions do not apply every time a Member or staffer exerts such pressure. In fact, it leaves many types of pressure untouched.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.

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