Q: I am hoping that you can settle a disagreement my brother and I have been having about providing meals for Members of Congress. I work for a lobbying firm in Washington, D.C., and my brother is an executive for a poultry company in Indiana. He recently told me that every year his company receives an official visit from the Representative in his district. The Representative tours the facility, and the company then treats him to a traditional on-site chicken dinner with company employees.
This surprised me. At our lobbying firm, our attorneys are always reminding us that we may not buy a meal for a Member, even during a visit to our office. They say there are certain events where we can serve Members light food and drink, but that we can never serve them meals. Who is right — me or my brother?
[IMGCAP(1)]A: I have good news. You are both right. Believe it or not, in the circumstances you describe, your brother’s company may host a Member for dinner, but your lobbying firm may not. Here’s why.
As you are no doubt aware, in recent years there has been ever-increasing scrutiny of lobbyists and their interactions with Members. The result is that in many cases House ethics rules are stricter for lobbyists than they are for everyone else. You have presented just such a case.
Generally, the gift rule prohibits Members and staffers from receiving anything of value unless an exception applies. Given the breadth of the prohibition, however, there is a long list of exceptions. In most cases, these are designed to prevent the rule from intruding too far into the everyday lives of Members and staffers.
The exception that you appear to have in mind is the one allowing Members to accept light food and refreshments at certain events. Sometimes referred to as the “toothpick rule,— the exception applies only to “food or refreshments of a nominal value,— and it explicitly excludes any food offered as “part of a meal.— This restriction may explain your attorneys’ advice. And, they are right. Unless some other exception applies, the rules generally prohibit meals from being provided to Members or staffers. Neither your firm nor your brother’s could provide a meal to a Member under the toothpick rule.
However, there is another exception that is relevant here — one that applies to your brother’s company but not to your firm. It is a specific application of a general exception allowing Members to receive anything for which a waiver is granted by the House Committee on Standards of Official Conduct. Under this exception, the ethics committee has issued a general waiver allowing Members to accept a meal from a business when it is “incident to a visit to a business site.— To qualify for the waiver, the meal must be during an official Member visit to a business site, offered by management of the site being visited, on the business’s premises and in a group setting with employees of the organization. In your brother’s case, all of these criteria appear to be met, so the meal provided by his company does not violate the rules.
According to the House Ethics Manual, the reasoning behind this waiver is that, during the course of Members’ taking official visits at House expense, they are sometimes offered the courtesy of a de minimis amount of food. The manual states that “the acceptance of such occasional, incidental courtesies does not violate the spirit of the gift rule.—
Given this reasoning and the waiver’s criteria, you might think that your lobbying firm would qualify as well. After all, your firm is just as capable of meeting the criteria. And, if occasional, incidental courtesies from a poultry company don’t violate the spirit of the gift rule, why would the spirit of the rule be violated if the same courtesies were extended by a lobbying firm?
Unfortunately for your firm, it doesn’t qualify. The Ethics Manual specifically excludes Washington-area offices of lobbying or law firms from the scope of the waiver. While the committee does not explain why it singles out these D.C. firms, the reason may have to do with fact that the meal must be “incidental to legitimate official activity.— The committee may have concluded that Members should rarely take official visits to D.C. law and lobbying firms, and that to allow the waiver for such visits would be to risk abuse of the waiver.
Ultimately, whatever the committee’s reasoning may be, the result is clear. Under the terms of the waiver, your brother’s company may host a Member for a meal during an official visit, but your lobbying firm may not.
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.