Q:
A lifelong friend of mine attended a state university in our home state and now works as a registered lobbyist for the school. Meanwhile, I attended a private university that is his school’s main rival, and I now work as a registered lobbyist for my alma mater. Later this month is the annual football game between his school and mine. It is always a big event and tickets are scarce. I recently learned that my friend has invited one of the House Members from our state, along with several of his top staffers. He plans to fly them out to the game, provide free tickets to the president’s box and then to treat them to a lavish dinner after the game. This sounded like an ethics rules violation to me, but my friend says he is sure the rules allow it. Maybe that’s true, but what really irked me is that he also said the rules would forbid me from making the same offer to Members and staffers. That can’t be right, can it?

A: Sometimes I field questions that require me to preface my response with the reminder that I did not write the rules, but merely [IMGCAP(1)]report what they say. This is just such a question. Your friend is right. He may offer the tickets and other goodies to the Members and staffers on his school’s tab. But you may not. Here’s why:

As I am sure you are well aware, the Honest Leadership and Open Government Act of 2007 makes it illegal for lobbyists to make a gift in violation of the Congressional gift rules. Broadly, this means that lobbyists may not make a gift to a Member or staffer unless an exception applies. Tickets to the big game between your two schools, along with the other goodies your friend is offering the Member and staffers, surely qualify as gifts. Therefore, neither you nor your friend can provide them to Members or staffers unless an exception applies.

Believe it or not, there is an exception that applies to him but not to you. That exception, contained in clause 5(a)(3)(O) of House Rule 25, covers “anything that is paid for the Federal Government, by a State or local government, or secured by the Government under a Government contract.” The exception was created, in part, to facilitate cooperation and assistance within the government.

One of the critical questions regarding this exception is what qualifies as the “government.” The House Ethics Manual has answered that an entity qualifies only if “under the law, it is treated as a government agency for other purposes.” Examples of entities that the House ethics committee has recognized as government entities under this exception include government agencies, the Washington Metropolitan Area Transit Authority and the Tennessee Valley Authority. On the other hand, examples of entities that do not qualify include Amtrak, regional Federal Home Loan Banks and American Indian tribes.

In this case, the committee has explicitly stated that state universities qualify for the exception. In fact, the Ethics Manual includes an example that is right on point. In that example, a state university in a Member’s district offers the Member tickets to a game of one of the university’s teams. The manual states: “The Member may accept the tickets under this provision.” The manual goes on to state that a Member cannot, however, accept tickets from a private university unless their value is less than $50 and the university does not retain or employ lobbyists. That means you’re out of luck.

As for the other goodies your friend plans to provide to the Member and staffers, the rules allow those gifts as well. Your friend proposes to fly them out to the game and treat them to a lavish post-game dinner. According to the House Ethics Manual, the exception for gifts from the government is a broad provision that extends to “tangible items of all kinds, as well as meals, services, and travel.”

But there is a potential snag here. Your question doesn’t say who plans to pay for your friend’s whole affair. For the exception to apply, the Ethics Manual stresses that it is crucial that the gifts must be “paid for by” the government. This means that Members and staffers may not accept a gift from a government agency that was donated to the agency by a third party and for which the agency is merely acting as a conduit. In your friend’s case, then, he should be careful to ensure that the state university itself pays for anything and everything that is provided to the Member and staffers. Any other source of payment, such as school boosters, might be a rule violation.

To sum up, you have raised a question that highlights one of the quirky applications of the ethics rules. In short, state schools may shower Members and staffers with gifts. Private schools may not. Which leaves one more question: How good a friend is this friend of yours? Maybe he’ll invite you, too.

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