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Are Contributions Allowed With a Bill Pending?

Q: As a lobbyist, I was alarmed to read that the Office of Congressional Ethics is investigating several Members for accepting campaign contributions immediately before an important House vote. I was not aware of any rule regarding the timing of contributions. Is there a new rule restricting contributions within a certain time frame of pending legislation?

[IMGCAP(1)]A: The Office of Congressional Ethics is indeed conducting an investigation that appears to concern the timing of campaign contributions in relation to a key House vote.

According to reports, the investigation is focused on eight Representatives who, within 48 hours of an important House vote on financial reform legislation, held fundraisers and received campaign contributions from lobbyists and other donors likely to be affected by the legislation. One Member reportedly left the financial reform House debate in order to go to a fundraiser attended by finance companies, collected campaign contributions at the event and then returned to the House floor to vote against tougher restrictions on the companies.

So, are these contributions illegal?

No law prohibits you from contributing to a Member’s campaign immediately before a vote on a measure that could affect you. In general, the primary restrictions on contributions concern their size, not their timing. In addition, in your case, for contributions larger than $200 during a given period, the Lobbying Disclosure Act requires the lobbyist to disclose the date, recipient and amount of the contribution.

On the Members’ side of things, there is also no rule prohibiting them from accepting campaign contributions within any particular time frame of a vote. In fact, there are rules that explicitly allow Members’ campaigns to receive contributions. Both House and Senate rules provide that contributions lawfully made under the Federal Election Campaign Act are exempted from the general ban on gifts to Members. House and Senate rules also explicitly permit Members to attend campaign fundraisers. While the rules do include certain conditions regarding Members’ attendance at fundraisers, none of the conditions relates to timing.

Of course, the House ethics committee does urge Members generally to avoid the appearance of impropriety when soliciting or accepting contributions. For example, the House Ethics Manual states that Members and staffers should “always exercise caution to avoid even the appearance that solicitations of campaign contributions are connected in any way with an action taken or to be taken in their official capacity.”

To illustrate the point, the manual includes an example of a House staffer who is working on legislation with representatives of a corporation that supports the legislation. The manual states: “at least while the staff member is doing that legislative work, and for a reasonable period thereafter, he should not solicit contributions from the representatives of that corporation.” But where these factors are not present — i.e., a staffer actually working with corporate representatives on legislation — the House ethics committee has not published any guidance advising Members not to accept contributions while a vote is pending. Indeed, neither chamber’s ethics committee has ever taken the position that timing alone can make campaign contributions improper.

So, what then to make of the investigation by the Office of Congressional Ethics? Because it is not known what triggered the investigation, it is possible that something other than the mere timing of the campaign contributions was its impetus. After all, many other Members who are not being investigated also received contributions from financial service companies shortly before the House vote.

If, however, the timing of the contributions was the sole spark of the investigation, Members and donors should pay close attention. Responding to an investigation is no day at the beach. In this investigation, the OCE has been sending document requests to corporations, political action committees and other entities seeking several categories of documents spanning from Jan. 1, 2009, to the present. One category seeks all “files, correspondence, emails, receipts, notes, and any other documents regarding the soliciting, encouraging, facilitating, collecting, or forwarding of contributions” to any of the eight Members under investigation. Another seeks all correspondence with the eight Members. Gathering and producing such documents takes time and money.

Moreover, the mere act of producing them creates legal risk. Parties who produce documents in response to an OCE request submit a Request for Information Certification along with their production, in which they certify that they have provided “all information requested.” The certification states that it is being given under the False Statements Act, a federal criminal statute with maximum penalties of five years in jail and $250,000 in fines.

So, you are correct that there is no rule restricting contributions within a certain time frame of pending legislation. In fact, there is no precedent for sanctions based solely on the timing of contributions in relation to a Congressional vote. However, the current investigation is a good reminder that drawing the attention of the OCE can be costly, and not just politically. There are better ways to spend a summer than responding to document requests.

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.

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