Lobbying Congress: An Overview of Legal Provisions and Congressional Ethics Rules
Prepared for Members and Committees of Congress
This report provides a brief overview and summary of the federal laws, ethical rules, and
regulations which may be relevant to the activities of those who lobby the United States
Congress. The report provides a summary discussion of the federal lobbying registration and
disclosure requirements of the Lobbying Disclosure Act of 1995, as amended by the “Honest th
Leadership and Open Government Act of 2007,” P.L. 110-81 (S. 1, 110 Congress); the Foreign
Agents Registration Act; the issue of the propriety of contingency fees for lobbying; restrictions
on lobbying with federal funds; post-employment (“revolving door”) lobbying activities by
former federal officials; and House and Senate ethics rules relevant to contacts with private
The Lobbying Disclosure Act of 1995 was enacted to replace a nearly 50-year old lobbying
registration law that was seen as vague and inadequate. The current lobbying registration and
disclosure provisions establish clearer criteria and thresholds for determining when an
organization should register its employees or staff as lobbyists or when a lobbying firm or
individual lobbyist needs to register and identify clients. The act is directed at professional
lobbyists, that is, those who receive payments to lobby for an employer or a client, and requires
the registration and reporting of certain identifying information and general, broad financial data.
In addition to the Lobbying Disclosure Act, the Foreign Agents Registration Act requires the
registration and reporting from those who act as agents of a foreign government or foreign
political party, and who engage in “lobbying” or other similar political advocacy activities on
behalf of their foreign principal.
Various provisions of federal law have been enacted and regulations promulgated to restrict the
use of any federal funds for lobbying purposes, either by the agencies of the federal government
or by federal contractors or grantees.
In attempts to limit what has been perceived to be potential undue or improper influence in
governmental processes, restrictions have been adopted to limit the post-employment lobbying of
certain high ranking officials of the federal government for a period of time after they leave
government service (“revolving door” laws). Additionally, to deal with similar perceptions of
undue or improper influence and access, both Houses of Congress have adopted internal rules
regarding the acceptance of gifts and favors by Members, officers or employees of the House or
Senate from private sources, particularly from registered lobbyists or agents of foreign principals,
or their clients. No gifts may be accepted by Members, officers, or employees except as permitted
in the rules of the respective chamber; and thus even small gifts, as well as more significant travel
expenses for conferences or “fact finding” events provided to congressional Members and staff
from private parties such as lobbyists and their clients, are regulated and restricted by the
provisions of House and Senate rule. Under the new “ethics and lobbying” law (P.L. 110-81),
registered lobbyists must be familiar with these restrictions and regulations on gifts to Members
of Congress in House and Senate rules, and must certify to the Government that they have not
offered gifts or things of value to Members or staff which would violate these rules.
Introduction/ Backgr ound ........................................................................................................ .. 1
The Lobbying Disclosure Act of 1995, As Amended................................................................2
Who Is Covered Under the Act...........................................................................................3
Contact and Time Threshold...............................................................................................4
Information Disclosed on Registration...............................................................................5
Oral or Written Identifications to Officials Being Lobbied................................................6
Availability of Registration and Filing Information............................................................7
“Bundling” of Campaign Contributions.............................................................................7
Prohibitions on Gifts to Legislators....................................................................................7
Enforcement and Penalties..................................................................................................8
Foreign Agents Registration Act...............................................................................................8
Contingency Fees For Lobbying...............................................................................................9
Federal Funds Subsidizing or Reimbursing Lobbying.............................................................11
Post-Employment Lobbying by Federal Officials...................................................................13
Congressional Ethics Rules.....................................................................................................14
Gifts and Travel................................................................................................................15
Honoraria, Private Compensation.....................................................................................24
Unwritten Standards of Conduct and Propriety................................................................26
Other Statutory Considerations...............................................................................................26
Bribery, Illegal Gratuities, and “Honest Services” Fraud.................................................27
Further Ethical Considerations for Attorneys..........................................................................30
Author Contact Information..........................................................................................................31
his report is intended to provide a brief overview and summary of the federal laws, ethical
rules, and regulations which may be relevant to the activities of those who lobby the
United States Congress. The report provides a summary discussion of the federal lobbying T
registration and disclosure requirements of the Lobbying Disclosure Act of 1995 (LDA) (as
amended by the “Honest Leadership and Open Government Act of 2007” (P.L. 110-81,
September 14, 2007)), the Foreign Agents Registration Act, the propriety of contingency fees for
lobbying, restrictions on lobbying with federal funds, post-employment (“revolving door”)
lobbying activities by former federal officials, and House and Senate ethics rules which may be
relevant to certain contacts by Members, officers, and employees of Congress with private
lobbyists and their clients.
Although the term “lobbying” may have developed a somewhat sinister and pejorative
connotation over the years, the activities involved in lobbying are intertwined with fundamental 1
First Amendment rights of speech, association and petition, and may facilitate the exchange of 2
important information and ideas between the government and private parties. For those who act
in a representative capacity for a client, lobbying the legislature for a change in the state of the
law may be an important part of the services provided to the client. However, because of the
substantial potential for undue or wrongful influence from those who are paid to influence the
legislative process, there has developed a body of law and rules to regulate lobbying activities, as
well as to regulate the activities of public officials in their interactions with those who lobby,
particularly with reference to the potentially corrupting effect of large sums of money on the 3
legislative process. There are several federal statutory laws, as well as rules of the House and
Senate, which either apply to lobbying directly, or which are relevant to congressional lobbyists
because the provisions bear upon a Member’s or congressional employee’s dealings with those
who attempt to influence the legislative process. Although the internal House and Senate rules
apply directly only to those who come within their respective jurisdictions, the new statutory
provisions amending the Lobbying Disclosure Act of 1995 require a registered lobbyist to be
familiar with the House and Senate ethics rules on gifts and reimbursements, prohibit lobbyists
from offering gifts the receipt of which would violate those congressional rules, and require
lobbyists to certify that no gifts have been offered to Members of Congress or staff which would 4
be in violation of the chamber’s rules.
1 United States v. Harriss, 347 U.S. 612 (1954); United States v. Rumely, 345 U.S. 41 (1953); Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-138 (1961); note generally, Hope Eastman,
Lobbying: A Constitutionally Protected Right, American Enterprise Institute for Public Policy Research (1977), and
discussion in Browne, “The Constitutionality of Lobby Reform: Implicating Associational Privacy and the Right to
Petition the Government,” 4:2 William & Mary Bill of Rights Journal 717(1995).
2 S.Rept. 99-161, 99th Cong., 2d Sess., “Congress and Pressure Groups: Lobbying in a Modern Democracy,” Senate
Committee on Governmental Affairs 1-14 (1986).
3 The Supreme Court expressed concern as early as 1853 with paid lobbying activities and undue influence, finding that
a secret contingency contract for lobbying was void and unenforceable as a matter of public policy because it “tends to
corrupt or contaminate, by improper influences, the integrity of our ... political institutions” by “creat[ing] and
bring[ing] into operation undue influences” by those “stimulated to active partisanship by the strong lure of high
profit.” Marshall v. Baltimore & Ohio Railroad, 57 U.S. 314, 333-334 (1853).
4 P.L. 110-81, 121 Stat. 735, September 14, 2007 (S. 1, 110th Congress), sections 203(a) (certification) and 206
Concerning the regulation of lobbying generally, because of First Amendment protections and
guarantees, the federal “regulation” of lobbying activities engaged in by private citizens
principally takes the form of disclosure and reporting of such activities and the financing behind
those activities, as opposed to any specific limitations or restrictions on advocacy. Even when
regulation on lobbying merely requires disclosures and reporting, such regulation, in the area of
political and public-policy advocacy, may still be subject to careful scrutiny by the courts. Court
decisions in this and related areas have looked to determine whether there exists any “chilling” of,
or deterrent to the exercise of, citizens’ First Amendment rights caused by such required
disclosures, and if so, whether any theoretical or indirect chilling of speech is counter-balanced
by important governmental and societal interests promoted by the regulations, such as
transparency and openness in government, and the protection of basic governmental processes 5
from undue influences.
In 1995 Congress completely rewrote the 50-year old law (the Federal Regulation of Lobbying
Act of 1946) which had required certain registrations and disclosures of lobbying activities 6
directed at Members of Congress. The “Lobbying Disclosure Act of 1995” now provides more
specific thresholds, and clearer and broader definitions of who is a “lobbyist” and what
“lobbying” activities and contacts will trigger the requirements for the registration and reporting
of persons who are compensated to engage in lobbying.
The lobbying disclosure law was amended substantially in 2007 in the “Honest Leadership and 7
Open Government Act of 2007,” to provide further and more frequent disclosures, information,
and reporting from those professional lobbyists covered by the Lobbying Disclosure Act of 1995.
The new reporting and disclosures will generally apply to the information which is required to be 8
filed in the calendar quarters beginning after January 1, 2008. Other information to be included
in reports, concerning particularly the interaction of covered lobbyists and government officials in
the making or offering of gifts, donations, payments or contributions from such lobbyists and
their clients to or on behalf of federal public officials, will be filed semi-annually concerning 9
those six-month periods after January 1, 2008.
The 2007 amendments to the lobbying disclosure laws were not intended primarily to increase the
number of persons who are required to register and report as “lobbyists” under the LDA. Thus,
the definitions of who is a covered “lobbyist,” and of what are “lobbying contacts” and “lobbying
activities”—and therefore who must register and report under the law—were not substantively 10
amended by the 2007 Act. Rather, the amendments in 2007 were substantially directed at
5 United States v. Harriss, 347 U.S. 612 (1954); McConnell v. Federal Election Commission, 540 U.S. 93, 143, 150
(2003); Buckley v. Valeo, 424 U.S. 1, 65 (1976); NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama, 357 U.S.
449, 460 (1958); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 544 (1963); Bates v. Little
Rock, 361 U.S. 516 (1960); Shelton v. Tucker, 364 U.S. 479 (1960).
6 P.L. 104-65, December 19, 1995, 109 Stat. 691, as amended by the Lobbying Disclosure Technical Amendments Act,
P.L. 105-166, April 6, 1998, and the “Honest Leadership and Open Government Act of 2007,” P.L. 110-81, 121 Stat.
735, September 14, 2007.
7 P.L. 110-81, 121 Stat. 735, September 14, 2007 (S. 1, 110th Congress).
8 P.L. 110-81, Sections 201, 202, 205, 207-210, 215.
9 P.L. 110-81, Section 203.
10 The threshold amounts of time and money spent or received to qualify one as a “lobbyist” are adjusted (halved) in
providing more “transparency”—broader disclosures, more information, and more frequent
reporting—on lobbying activities from those “lobbyists” already required to register and report
under the law. Additionally, the new lobbying law amendments require lobbyists to be familiar
with the restrictions, limitations, and prohibitions in internal House and Senate rules on the
receipt of gifts from private sources by Members and staff of Congress, as the new lobbying laws
expressly prohibit lobbyists and organizations with employee/lobbyists from offering gifts and
travel prohibited by such rules, and requires certification by registrants that no such gifts have
The Lobbying Disclosure Act of 1995 is directed at so-called “professional lobbyists,” that is,
those who are compensated to engage in certain lobbying activities on behalf of a client or an 11
employer. In addition to covering only those who are paid to lobby, the initial “triggering”
provisions of the law cover only the conduct of lobbying which involves “direct” contacts with
covered officials. The law’s registration requirements are not separately triggered by “grass roots”
lobbying activities. That is, an organization which engages only in “grass roots” lobbying,
regardless of the extent of “grass roots” lobbying activities, will not be required to register its 12
members, officers or employees who engage in such activities.
For purposes of discussing the LDA requirements, it is useful to recognize two general categories
• (1) “in house” lobbyists of an organization or business—employees of that
organization or business who are compensated, at least in part, to lobby on its
• (2) “outside” lobbyists—members of a lobbying firm, partnership, or sole
proprietorship that engage in lobbying for “outside” clients.
When registration is required from a paid “lobbyist” under the lobbying law, such registration is
done by the organization employing that individual/lobbyist, or by an outside lobbying firm,
including an individual, sole practitioner who is a lobbyist for outside clients. A business or
organization which has employees who engage in a certain amount of lobbying on its behalf (“in-13
house” lobbyists) must thus register and identify its employee/lobbyists. “Lobbying firms” or
entities (including sole practitioners) who lobby or have employees, partners or associates who
P.L. 110-81 to conform to the new quarterly (rather than semi-annual) filing, but the thresholds are not otherwise
lowered with the intention of covering more persons as “lobbyists.” (Assuming a pro rata expenditure of time and
money, more persons will not necessarily qualify as “lobbyists” under the amended law, but the new provisions do
have the effect of lowering by half the thresholds for minimum or sporadic lobbying efforts).
11 See H.Rept. 104-339, 104th Cong., 1st Sess., at 2 (1995).
12 Once an organization has met the threshold requirements for “direct” lobbying and is registered, certain background
activities and efforts “in support of” its direct “lobbying contacts,” which may include activities which also support
other activities or communications which are not lobbying contacts, such as grass roots lobbying efforts, may need to thst
be disclosed generally as “lobbying activities.” 2 U.S.C. § 1602(7). Note H.Rept. 104-339, 104 Cong.,1 Sess.,
“Lobbying Disclosure Act of 1995,” 13-14 (1995). The instructions of the Clerk of the House and Secretary of the
Senate also note that “Communications excepted by Section 3(8)(B) will constitute ‘lobbying activities’ if they are in
support of other communications which constitute ‘lobbying contacts.’”
13 2 U.S.C. § 1603(a)(2).
lobby for “outside” clients, must file a separate registration for each client represented, 14
identifying such things as the lobbyist, the client and the issues.
The previous lobby registration statute which had been enacted in 1946, as interpreted by the
Supreme Court in United States v. Harriss, supra, was criticized for employing a general and
equivocal test for registration and reporting, concerning whether lobbying was one’s “main” or
“principal purpose,” and for providing no specific thresholds, or clear measures to trigger the
requirements of the law. The Lobbying Disclosure Act of 1995, as amended, however, provides
more specific thresholds, triggering measures, and de minimis amounts.
There is a de minimis expense and a de minimis income threshold below which the requirement
for registration by organizations, and by lobbying groups or firms, will not be triggered. Any
organization which uses its own employees as lobbyists (in-house lobbyists) will not need to
register if the organization’s total expenses for lobbying activities do not, for the quarterly
reporting period beginning January 1, 2008, exceed the statutory amount of $10,000 (or, if past 15
adjustments are considered, $12,225) in the applicable three-month reporting period. A lobbying
firm (including a self-employed individual) does not need to register for a particular “outside”
client if its total income from that client for lobbying related matters does not, for the applicable
quarterly reporting period beginning January 1, 2008, exceed the statutory threshold amount of 16
$2,500 (or, if past adjustments are considered, $3,000) in a 3-month filing period.
A “lobbyist” under the disclosure law is an organization’s employee who engages in lobbying (an
“in-house” lobbyist), or is someone who works on his or her own or for a lobbying firm and is
retained by an organization or entity to lobby on its behalf (an “outside” lobbyist), who:
• makes more than one “lobbying contact,” and
• spends at least 20% of his or her total time for that employer or client on 17
“lobbying activities” over a three-month period.
14 2 U.S.C. § 1603(a)(1).
15 2 U.S.C. § 1603(a)(3)(A)(i), as amended by P.L. 110-81. The statutory amount was changed from $20,000 in a six-
month period to $10,000 in a three-month period. However, the amount is adjusted every four years (2 U.S.C. §
1603(a)(3)(B)), and the $20,000 amount was last adjusted January 1, 2005, to $24,500. If the adjusted amount is merely
halved under the new three-month reporting periods established in P.L. 110-81, the new three-month threshold amount
for expenditures will be $12,225. However, if the actual amount stated in the new statute is used, without the past
adjustments (and then adjusted every four years from the date of the new law), then the new three-month threshold
amount for expenditures will be $10,000.
16 2 U.S.C. § 1603(a)(3)(A)(ii), as amended by P.L. 110-81. The statutory income threshold amount was changed from
$5,000 in a six-month period to $2,500 in a three-month period. However, the amount is adjusted every four years, 2
U.S.C. § 1603(a)(3)(B), and the $5,000 amount was adjusted January 1, 2005, to $6,000. If the adjusted amount is
merely halved under the new three-month reporting periods established in P.L. 110-81, the new three-month threshold
amount for income will be $3,000. However, if the actual amount stated in the new statute is used, without the past
adjustments (and then adjusted every four years from the date of the new law), then the new three-month threshold
amount for income will be $2,500.
17 2 U.S.C. § 1602(10), as amended by P.L. 110-81, substituting the three-month reporting period for previous six-
A “lobbying contact” is an oral or written communication to a covered official, including a
Member of Congress, congressional staff, and certain senior executive branch officials, with 18
respect to the formulation, modification or adoption of a federal law, rule, regulation or policy.
Thus, by definition, a “lobbying contact” involves a direct communication to policy and decision 19
makers, and does not include indirect or “grass roots” lobbying activities, and does not include
behind-the-scenes support activities. The term “lobbying activities,” however, for which reporting
of expenditures must be made and for which the 20% of time threshold is applicable, is broader
than the meaning of “lobbying contacts,” and includes such “lobbying contacts” as well as 20
background activities and other efforts in support of those lobbying contacts.
Under the act a “lobbyist” needs to be registered within 45 days after making the requisite
lobbying contacts or within 45 days of being employed to make such contacts, whichever is 21
earlier. The required registration statements are filed with the Secretary of the Senate and the
Clerk of the House, and will be made available by those offices, free to the public, over the
Internet. The information on the registrations will generally include identification of the lobbyist,
or organization with employee/lobbyists; the client or employer; an identification of any foreign
entity, and disclosure of its contributions of over $5,000, if the foreign entity owns 20% of the
client and controls, plans or supervises the activities of the client, or is an interested affiliate of
the client; and a list of the “general issue areas” on which the registrant expects to engage in 22
lobbying, and those on which he or she has already lobbied for the client or employer. In
additional to listing the “client” of a lobbyist in the case of, for example, a “coalition” or
association which hires a lobbyist, identification must also be made of any organization other
than that client-coalition which contributes more than $5,000 for the lobbying activities of the
lobbyist in a three-month reporting period and actively participates in the planning, supervision or 23
control of the lobbying activities.
Beginning in the reporting periods after January 1, 2008, lobbyists and organizations required to
register under LDA are also required to file periodic reports on a quarterly basis covering the
periods January 1-March 31, April 1-June 30, July 1-September 30, and October 1-December 31.
These reports are to be filed within 20 days of the end of the applicable period, and will identify
the registrant/lobbyist, identify the clients, and provide any needed updates to the information in
the registration; identify the specific issues upon which one lobbied, including bill numbers,
earmarks, and any specific executive branch actions; employees who lobbied; Houses of
Congress and federal agencies contacted; any covered interest of a foreign entity; and provide a
good faith estimate of lobbying expenditures (by organizations using their own employees to
18 2 U.S.C. § 1602(8)(A).
19 2 U.S.C. § 1602(8)(B)(iii).
20 2 U.S.C. § 1602(7).
21 2 U.S.C. § 1603(a)(1).
22 2 U.S.C. § 1604(b).
23 2 U.S.C. § 1603(b)(3), as amended by P.L. 110-81, Section 207. There are certain exceptions to listing separately
participating organizations if such groups are listed publicly on the coalition’s website (unless the organization plans,
supervises or controls the activities of the coalition, and then it must be listed in the registration statement).
lobby), or income from clients (estimated by outside lobbying firms/practitioners) in excess of 24
$5,000 (and rounded to the nearest $10,000.
The 2007 amendments to LDA included several new, additional items of expenditures, activities, 25
and funding that are required to be disclosed and reported by registrants on a semi-annual basis.
The additional items to be reported upon include:
political committees—the names of all political committees established or controlled by the
lobbyist or registered organization;
campaign contributions—the name of each federal candidate or officeholder, leadership PAC, or
political party committee to which contributions of more than $200 were made in the semi-annual
payments for events or to entities connected with government officials—the date, recipient, and
the amount of funds disbursed (i) to pay the costs of an event to honor or recognize a covered
government official; (ii) to an entity that is named for a covered legislative branch official, or to a
person or entity “in recognition” of such official; (iii) to an entity established, maintained, or
controlled by a covered government official, or an entity designated by such official; (iv) to pay
the costs of a meeting, conference, or other similar event held by or in the name of one or more
covered government officials, unless the events, expenses or payments are in a campaign context
such that the funds provided are to a person required to report their receipt under the Federal
Election Campaign Act (2 U.S.C. § 434);
payments to presidential libraries or for inaugurations—the name of each presidential library
foundation and each presidential inaugural committee to whom contributions of $200 or more
were made in the semi-annual reporting period;
certifications concerning House and Senate gift rules—registrants are required to provide a
certification that the person or organization filing (i) “has read and is familiar with” the rules of
the House and Senate regarding gifts and travel, and (ii) had not provided, requested or directed
that a gift or travel be offered to a Member or employee of Congress “with knowledge that the
receipt of the gift would violate” the respective House or Senate rule on gifts and travel.
The LDA expressly requires that a lobbyist, upon the request of any “covered official” during an
oral contact, provide an identification of his or her client, whether or not the lobbyist is registered 26
under the act, and a disclosure of any interests of foreign affiliates. If a written lobbying contact
is made, the lobbyist is required on his or her own to identify any foreign entity on whose behalf
24 2 U.S.C. § 1604(a)-(c), as amended by P.L. 110-81, Sections 201(a) and 202.
25 2 U.S.C. § 1604(d), as added by P.L. 110-81, Section 203. The feasibility of reporting such items on a quarterly,
rather than semi-annual, basis is to be reported upon by the Clerk of the House and Secretary of the Senate in the first
year of these amendments’ operation, and the “sense of the Congress” has been expressed that such reporting should be
made quarterly after two years of the amendments’ operation. P.L. 110-81, Section 203(c),(d).
26 2 U.S.C. § 1609.
the contact is being made, and any foreign entity which owns 20% of the client or organization,
controls or supervises the client, or is an affiliate with a direct interest in the lobbying activities.
Registrations, as well as the quarterly and semi-annual reports from registered lobbyists, are made
to the Clerk of the House of Representatives, Legislative Resource Center, and to the Secretary of
the Senate, Office of Public Records. The 2007 amendments to the Lobbying Disclosure Act now
require, after the first reporting period for the quarter beginning after January 1, 2008, electronic 27
filing of lobbying reports. The Clerk of the House and the Secretary of the Senate are required
to maintain data bases of registrations and reports that are to be available, searchable, sortable and
downloadable for free to the public over the Internet, to link certain information to the Federal 28
Election Commission data bases, and to preserve the lobbying information for six years. Forms
for registration and reporting, and detailed filing instructions for lobbying firms and organizations
with lobbyists, are available from the offices of the Clerk of the House and the Secretary of the
Senate, and may be accessed online on their respective websites.
The 2007 amendments to the LDA did not prohibit or further limit or restrict the practice of
“bundling” of campaign contributions by lobbyists or registrants to or on behalf of federal
candidates. The “bundling” of contributions might generally be described as the practice of
forwarding by, or otherwise crediting to, a person or organization a number of lawful campaign
contributions that have been collected, organized, or directed by that person or organization to a
federal candidate. Under the 2007 amendments, when such “bundling” is done by a registrant
under LDA, by a person listed as a lobbyist by an organization registered under LDA, or by a
political committee controlled by such registrant or person, then the recipient political committee
(and not the LDA-registrant or lobbyist) must disclose in a separate schedule such bundled
campaign contributions, and must identify the “bundler,” when the contributions total more than
$15,000 in a six-month period (excluding the personal contributions of the bundler and his or her
spouse), and when the bundler is “reasonably known” by the recipient to be a lobbyist, a 29
registered organization with lobbyists, or a committee controlled by them. This disclosure is
done by the appropriate recipient campaign committee under the provisions of the Federal
Election Campaign Act, and under regulations to be promulgated by the Federal Election
The 2007 amendments to the LDA now place an express prohibition within the federal lobbying
law on any registered lobbyist, any organization which employs one or more lobbyists and is
required to register, and any employee required to be listed as a lobbyist by a registrant, from
making a gift to, or reimbursing or paying travel expenses of, a Member or staffer of Congress if
the person has knowledge that the gift or travel offered may not be accepted under the applicable
27 P.L. 110-81, Section 205, adding 2 U.S.C. § 1604(e).
28 P.L. 110-81, Section 209, amending 2 U.S.C. § 1605.
29 P.L. 110-81, Section 204, amending the Federal Election Campaign Act of 1971 (2 U.S.C. § 434).
rules of the House or Senate.30 As noted earlier, registrants are also required to certify on a semi-
annual basis that they are familiar with the House and Senate rules on gifts and travel, and have 31
not provided or offered such gifts or travel in violation of those rules.
The LDA, as amended, now has express criminal penalties for knowing and corrupt failure to 32
comply with the law. The civil penalty for failure to rectify a defective filing after notice, or to
knowingly fail to comply with any provision of the lobbying law, has been increased to a fine of 33
up to $200,000. It may also be noted that an omission or a false statement to any agency or
department of the federal government concerning a matter within its jurisdiction, if material and
done intentionally with intent to deceive, could be subject to a prosecution for false statements 34
and fraud under federal criminal law.
In addition to the required registrations under the federal Lobbying Disclosure Act of 1995, as 35
amended, the provisions of the Foreign Agents Registration Act (FARA) may be relevant if one
is acting for or on behalf of a foreign government or a foreign political party or entity, or other
foreign entity, and is engaging in “lobbying” activities as part of the representation for that
foreign client. Under the Lobbying Disclosure Act, as amended, if one is representing the
interests of a foreign government or a foreign political party, such agent must continue to register
under the Foreign Agents Registration Act, but then need not register under the Lobbying
Disclosure Act. However, persons representing private foreign entities, and who lobby in the
United States, should register under the Lobbying Disclosure Act rather than the Foreign Agents
Registration Act. Those properly registered under the Lobbying Disclosure Act are exempt from
registering under the Foreign Agents Registration Act. Under amendments adopted in 2007, the
registrations and supplemental statements from foreign agents under FARA will now be available 36
on-line in a searchable, sortable, and downloadable format.
The Foreign Agents Registration Act, as amended by the Lobbying Disclosure Act of 1995, and 37
its amendments, provides that “agents of a foreign principal” must file a registration statement
not with the Clerk of the House or the Secretary of the Senate, but with the Attorney General 38
listing detailed financial and business information, must file and label all informational
30 P.L. 110-81, Section 206, adding Section 25 to the Lobbying Disclosure Act of 1995.
31 P.L. 110-81, Section 203(a), adding 2 U.S.C. § 1604(d)(1)(G).
32 P.L. 110-81, Section 211(b), providing up to five years imprisonment, and a fine of up to $250,000 for an individual
and $500,000 for an organization (18 U.S.C. § 3571).
33 P.L. 110-81, Section 211(a), amending 2 U.S.C. § 1606.
34 18 U.S.C. § 1001.
35 See now 22 U.S.C. §§ 611 et seq.
36 P.L. 110-81, Section 212, amending 22 U.S.C. §§ 612, 616.
37 22 U.S.C. § 611(b) and (c).
38 22 U.S.C. § 612. Under the provisions of P.L. 110-81, Section 212(a), the registrations and filings required by FARA
to the Department of Justice shall be filed in electronic form, and shall be compiled and maintained by the Attorney
General on a data base available to the public over the Internet, without fee, in a searchable, sortable, and downloadable
manner. P.L. 110-81, Section 212(b).
materials,39 and keep detailed books and records open to inspection by public officials.40 An
“agent” is defined in the law as one who acts “at the order, request, or under the direction or
control, of a foreign principal, or of a person any of whose activities are directly or indirectly
supervised, directed, controlled, financed, or subsidized in whole or in part by a foreign 41
The types of activities on behalf of a “foreign principal” that would subject an “agent” to
coverage under the act include “political activities”; acting as a “public relations counsel,”
publicity agent or political consultant; collecting or disbursing contributions for the foreign
principal; and representing the interests of the foreign principal “before any agency or official of 42
the Government of the United States.” The term “political activities” also includes activities
which may generally be characterized as among those commonly considered to be “lobbying”
The term “political activities” means any activity that the person engaging in believes will, or
that the person intends to, in any way influence any agency or official of the Government of
the United States or any section of the public within the United States with reference to 43
formulating, adopting, or changing the domestic or foreign policies of the United States....
There are several exemptions to the registration and record-keeping requirements of the Foreign
Agents Registration Act, including exemptions for the official activities of diplomats and consular
officers and the activities of certain officials of foreign governments; exemptions for persons
engaging only in “private and nonpolitical activities in furtherance of bona fide trade or
commerce” for such foreign principal; and an exemption for certain legal representation of 44
foreign principals by attorneys in judicial or on-the-record, formal agency proceedings.
A contingency fee arrangement for “lobbying” activities before Congress is one in which the
payment for such activities is contingent upon the success of the lobbying efforts to influence the
legislative process by having legislation adopted or defeated in the United States Congress. There
is no statute under federal law which expressly addresses the issue of contingency fees with
respect to all lobbying activities before the Congress. Contingency fees may be expressly barred,
however, under certain circumstances. There is in federal law, for example, an express prohibition
against contingency fee arrangements with respect to seeking certain contracts with the agencies 45
of the federal government. Activities which might generally or colloquially be called
“lobbying,” but which involve making representations on behalf of private parties before federal
39 22 U.S.C. § 614. The Lobbying Disclosure Act of 1995 eliminated the use of and the definition of the term “political
propaganda,” now employing the more neutral term “informational material.”
40 22 U.S.C. § 615.
41 22 U.S.C. § 611(c)(1).
42 22 U.S.C. § 611(c)(1)(i)-(iv).
43 22 U.S.C. § 611(o).
44 22 U.S.C. § 613.
45 41 U.S.C. § 254(a), 10 U.S.C. § 2306(b) (defense contracts). Note Federal Acquisition Regulations (FAR), 48 C.F.R.
§ 3.400 et seq. Negotiated solicitations and contracts are required to contain a contractor warranty that no contingent
fees were paid. FAR, 48 C.F.R. § 52.203-5.
agencies to obtain certain government contracts, may thus be subject to the contingency 46
Contingency fees are also prohibited for lobbying the Congress by persons who must register as
agents of foreign principals under the Foreign Agents Registration Act. The prohibition is upon
agreements where the amount of payment “is contingent in whole or in part upon the success of 47
any political activities carried on by such agent.” The covered “political activities” of such
agents under the Foreign Agents Registration Act include any activity which the agent “intends
to, in any way influence any agency or official of the Government of the United States ... with
reference to formulating, adopting, or changing the domestic or foreign policies of the United
States ...,” and thus includes the activities of “lobbying” Members and staff of Congress on 48
legislation or appropriations.
Although there is no general federal law expressly barring all contingency fees for successful
lobbying before Congress, there is a long history of judicial precedent and traditional judicial
opinion which indicates that such contingency fee arrangements, when in reference to “lobbying”
and the use of influence before a legislature on general legislation, are void from their origin (ab 49
initio) for public policy reasons, and therefore would be denied enforcement in the courts.
Explaining the reason for such policy, Justice Oliver Wendell Holmes, writing for the Court,
noted that it was the “tendency” in such contract agreements to provide incentives towards
corruption, as such agreements “invited and tended to induce improper solicitations ... intensified 50
... by the contingency of the reward.” It should be noted that the laws of 39 States prohibit th
outright, and the laws of a 40 State limit the amount of, contingency fees for successful 51
legislative lobbying, and this may further limit the probability of judicial enforcement of a
contingency fee contract, even one for lobbying the Congress.
While the tradition and practice have been for the courts to look disfavorably upon contingency
fee arrangements for successfully influencing public officials in performing discretionary actions,
it should be noted that in some instances contingency fee contracts based on the success of
legislation have been upheld and enforced in a few courts when the duties contracted for were
professional services that did not involve traditional, statutorily defined “lobbying” or the use of
46 The reason for this contingency fee ban has been explained as follows: “Contractors’ arrangements to pay contingent
fees for soliciting or obtaining Government contracts have long been considered contrary to public policy because such
arrangements may lead to attempted or actual exercise of improper influence....” Nash, Schooner, & O’Brien, The
Government Contract Reference Book, A Comprehensive Guide to the Language of Procurement, Second Edition, at
119 (George Washington University 1998).
47 22 U.S.C. § 618(h).
48 22 U.S.C. § 611(o).
49 “Contingent fee arrangements, conditioned on the obtaining of favorable legislation, are unenforceable in the courts.”
Luff v. Luff, 267 F.2d 643, 646 (D.C.Cir. 1959). See Marshall v. Baltimore & Ohio R.R., supra at 336 (1853); Tool
Company v. Norris, 69 U.S. (2 Wall.) 45, 54 (1864); Trist v. Child, 88 U.S. (21 Wall.) 441 (1874); Hazelton v.
Sheckells, 202 U.S. 71 (1906); Noonan v. Gilbert, 68 F.2d 775 (D.C.Cir. 1934); Brown v. Gesellschaft Fur Drahtlose
Telegraphie, 104 F.2d 227, 229 (D.C.Cir. 1939), cert denied 307 U.S. 640 (1939); Ewing v. National Airport th
Corporation, 115 F.2d 859, 860 (4 Cir. 1940), cert. denied 312 U.S. 705 (1941); note also Florida League of th
Professional Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11 Cir. 1996), upholding against constitutional challenge Florida
statute barring contingency fees.
50 Hazelton v. Sheckells, 202 U.S. 71, 79 (1906).
51 Note survey of State laws in CRS Congressional Distribution Memorandum, “Contingency Fees for Lobbying
Activities,” September 21, 2000.
personal influence before the legislature,52 or where the client had a legitimate claim or legal right 53
to be asserted in a matter before the legislature (e.g., “debt legislation”).
As noted in the instructions of the Clerk of the House and Secretary of the Senate, if contingency
fees are permitted and used in a lobbying agreement with respect to lobbying before the
Congress, the making of such a contract for a contingent fee “triggers a registration requirement
at inception.” The fee is disclosed in the required reports for the period “that the registrant
becomes entitled to it.”
There are general restrictions under federal law and regulations against the use of federal funds
for lobbying activities. Federal criminal law states a general prohibition against the use of funds
appropriated by Congress for the purposes of certain “lobbying” activities and publicity 54
campaigns directed at influencing Congress or state or local legislatures on pending legislation.
Contractors and grantees of the federal government may not be reimbursed out of federal contract
or grant money for their lobbying activities, unless authorized by Congress, under the provisions
of the Federal Acquisition Regulations (FAR) drafted to encompass the principles set out in an
earlier circular from the Office of Management and Budget that applies to non-profit grantees of 55
the federal government.
Under the guidelines of provisions known as the “Byrd Amendment,” as amended by the
Lobbying Disclosure Act of 1995, federal grantees, contractors, recipients of federal loans or
those with cooperative agreements with the federal government, are also prohibited by law from
using federal monies to “lobby” the Congress, federal agencies or their employees with respect to
the awarding of federal contracts, the making of any grants or loans, the entering into cooperative 56
agreements, or the extension, modification or renewal of these types of awards. Federal
contractors, grantees and those receiving federal loans and cooperative agreements must also
52 Weinstein v. Palmer,32 NW2d 154 (Minn. 1948); Johnston v. J.R. Watkins Co., 157 P.2d 755, 757 (Okla. 1945): “A
contract for purely professional services such as drafting a petition for an act, attending to the taking of testimony,
collecting facts ...” is not within Oklahoma’s statutory ban on “lobbying” on a contingent fee basis.
53 As to “debt legislation” and claims (as opposed to general or “favor legislation”), see discussion in Brown v.
Gesellschaft, supra at 229; Grover v. Merritt Development Co., 47 F. Supp. 309 (D.Minn. 1942); and 51 Am Jur. 2d,
“Lobbying,” § 4 at 995, citing State ex rel. Hunt v. Okanogan County, 153 Wash 399, 280 P 31; Hollister v. Ulvi, 199
Minn 269, 271 NW 493; Stansell v. Roach, 147 Tenn 183, 246 SW 520.
54 18 U.S.C. § 1913, as amended by P.L. 107-273, § 205(a), 116 Stat. 1778 (November 2, 2002); note also general
appropriations riders in yearly appropriations acts prohibiting the use of appropriations for “propaganda or publicity
purposes” not authorized by Congress, see e.g., P.L. 109-115, Sections 821, 824 (119 Stat. 2501); and P.L. 108-199,
Division F, “Transportation, Treasury, and Independent Agency Appropriations, 2004,” Sections 621, 624, 118 Stat.
355, 356 (January 23, 2004). Generally, this language is thought to permit executive branch officials to contact
Members of Congress and their staffs directly, but to prohibit executive branch officials from conducting costly letter-
writing or similar publicity campaigns urging the public to contact Members of Congress about legislation. 2 Op.
O.L.C. 30 (1978); 5 Op. O.L.C. 180 (1981); 13 Op. O.L.C. 300 (1989); Office of Legal Counsel, Department of Justice,
“Guidelines on 18 U.S.C. § 1913” (April 14, 1995); and GAO opinions, B-302504, March 10, 2004; B-212069,
October 6, 1983; B-284226.2, August 17, 2000; and GAO, B-301022, March 10, 2004. The criminal statute was
enacted originally in 1919 and there is no record of any prosecution under the law.
55 48 C.F.R. §§ 31.205-22; 31.701 et seq.; note OMB Circular A-122, ¶B21, as added 49 F.R. 18276 (1984).
56 31 U.S.C. § 1352(a).
report lobbying expenditures from non-federal sources which they used to obtain such federal 57
program monies or contracts.
Charitable organizations, including religious organizations, which are exempt from taxation under
section 501(c)(3) of the Internal Revenue Code (organizations to which contributions may be tax-
deductible for the donor under § 170(c)(2)), are limited in the amount of lobbying in which they
may engage if they wish to preserve this preferred tax-exempt status from the federal 58
Section 18 of the Lobbying Disclosure Act of 1995 places statutory restrictions upon the lobbying
activities of certain non-profit organizations which are tax-exempt under section 501(c)(4) of the
Internal Revenue Code. This provision, which is commonly called the “Simpson Amendment,”
prohibits section 501(c)(4) social welfare organizations from engaging in any “lobbying
activities,” even with their own private funds, if the organization receives any federal grant, loan, 59
or award. The legislative history of the provision clearly indicates, however, that a 501(c)(4)
organization may separately incorporate an affiliated 501(c)(4), which will not receive any federal 60
funds, and which could engage in unlimited lobbying. The method of separately incorporating
an affiliate to lobby, which was described by the amendment’s sponsor as “splitting,” was
apparently intended to place a degree of separation between federal money and private lobbying
while permitting an organization to have a voice through which to exercise its protected First
Amendment rights of speech, expression and petition: “If they decided to split into two separate
It may also be noted that while 501(c)(4)s which receive certain federal funds may not engage in
“lobbying activities,” the term “lobbying activities” as used in that prohibition is expressly
defined in that law to include only direct “lobbying contacts and efforts in support of such
contacts,” such as preparation, planning, research and other background work intended for use in 62
such contacts. Organizations which engage only in grass roots lobbying and public advocacy,
and do not make direct contacts or communications with covered officials, would therefore not
appear to be engaging in any prohibited “lobbying activities” as defined under this provision.
57 31 U.S.C. § 1352(b). See common agency regulations implementing “Byrd Amendment,” at 55 F.R. 6735-6756
(February 26, 1990).
58 26 U.S.C. §§ 501(c)(3), 501(h), 4911, 6033; see IRS Regulations at 55 F.R. 35579-35620 (August 31, 1990),
affecting 26 C.F.R. Parts 1, 7, 20, 25, 53, 56, and 602. The Supreme Court has upheld such loss of special tax-exempt
privilege for “substantial” lobbying noting that although lobbying is a protected right, and although the government
may not indirectly punish an organization for exercising its constitutional rights by denying benefits to those who
exercise them, lobbying activities are not one of the contemplated “exempt functions” of these organizations for which
they have received the preferred tax status, and that Congress does not have to “subsidize” such lobbying activities of
private organizations through preferred tax status of receiving deductible contributions if it does not choose to do so.
Regan v. Taxation With Representation of Washington, 461 U.S. 540, 544-546 (1983).
59 2 U.S.C. § 1611.
60 H.Rept. 104-339, supra at 24.
61 141 Congressional Record 20045, 20053, July 24, 1995, statements of Senator Simpson.
62 2 U.S.C. § 1602(7).
There are various “post-employment” or “revolving door” conflict of interest restrictions upon
certain officers and employees of the federal government which may work to restrict their
lobbying of the Congress, or of executive branch agencies or personnel, on particular matters or
for a certain period of time after such officials leave office. In addition to the “switching sides”
restrictions which apply generally to all former executive branch employees representing private
parties before officers and employees of the executive branch in matters on which the employee 63
had worked or had authority over while with the government, there are certain so-called
“cooling off” or “no contact” periods which may apply to any matter before one’s former agency,
department or branch of government, regardless of whether or not one had worked on it while
with the government.
As to those restrictions relevant to lobbying the Congress, the statute prohibits former Members
of the House from making representations, that is, appearances or communications with intent to
influence, on any matter before any Member, officer, or employee of the entire legislative branch 64
of government for one year after the Member leaves office. Senators are now prohibited from 65
such post-employment lobbying of the Congress for two years after leaving the Senate.
In the House of Representatives, the staff of a Member, if compensated above a particular rate,
may not “lobby” that Member or his or her staff for one year after leaving employment, and
covered staff of committees may not lobby any Members or staff of that committee for one year 66
after leaving employment. In the Senate, covered “senior” Senate employees may not lobby the
entire Senate (and not just their employing office) for one year after leaving congressional 67
employment. The “cooling off” periods for former executive branch officials, however, apply
only to lobbying those in the executive branch, and would not restrict such former officials from 68
general lobbying directed at the U.S. Congress immediately after their government employment.
63 All officers and employees of the executive branch are prohibited from “switching sides” on a specific case or
matter, that is, they are prohibited from ever making “with the intent to influence” any communication or appearance
on behalf of a private party before a federal department or agency on a particular matter involving specific parties if the
employee had worked personally and substantially on that matter for the government while in its employ. 18 U.S.C. §
207(a)(1). A similar restriction on “switching sides” applies for two years to executive branch personnel who, although
they did not work on the matter personally or substantially, had such particular matter involving specific parties under
their official responsibility while with the government. 18 U.S.C. § 207(a)(2). See also definitions at 18 U.S.C. §
64 18 U.S.C. § 207(e)(1)(B), as amended by P.L. 110-81, Section 101.
65 18 U.S.C. § 207(e)(1)(A), as amended by P.L. 110-81, Section 101.
66 18 U.S.C. § 207(e)(3)-(7). Covered “senior” staff are those employed for at least six months in a one year period and
compensated at a rate equal to or greater than of 75% of the salary of a Member of Congress.
67 18 U.S.C. § 207(e)(2). In addition, Senate rules impose a one-year post-employment ban on lobbying by Members
and staff. All former staff of a Senator, if they are registered lobbyists or paid by registered lobbyists, are prohibited
from lobbying that Member and staff for one year, and all such former committee staff are barred for one year after
leaving from lobbying the Members and staff of that committee. Senate Rule 37, cl. 9.
68 Restrictions on high level executive branch officials prohibit such officials from making representational
communications and appearances before their former agencies for one year after leaving the government, and restrict
for two years certain very high level officials from making representational or advocacy communications or
appearances before their former agency and to any individual who occupies an executive level position anywhere in the
executive branch, but does not apply to lobbying Congress. 18 U.S.C. § 207(c) and (d).
In addition to the “cooling off” periods that apply to a broad range of matters, for former
government officials, including Members of Congress, there are restrictions specifically
applicable to foreign trade, treaties, or foreign governmental representations. Under such
restrictions, no federal employee or official, including a Member or employee of Congress, who
has participated in trade or treaty negotiations on behalf of the United States and had access to
certain non-public information may, for one year after leaving office, represent, aid, or advise any 69
other person with respect to such ongoing trade or treaty negotiations. In addition, those high-
level government officials who are subject to the “cooling off” or “no contact” bans, including
Members of Congress and certain congressional staff, are also prohibited, for one year after
leaving the government, from lobbying for, representing, aiding, or advising any official foreign
entity with the intent to influence the official actions of any officer or employee of a department 70
or agency of the United States, including Members of Congress.
In addition to statutory laws applicable to lobbyists and lobbying, there are internal congressional
rules in both the House and the Senate which establish and provide ethical guidelines and
standards of conduct for Members, officers and employees of those bodies. While these are
internal rules and are not necessarily enforceable against, nor applicable directly to private parties
who lobby the Congress, changes in 2007 to the Lobbying Disclosure Act of 1995 now provide a
statutory relevance concerning some of these ethical standards and rules for a registered lobbyist,
registered organization employing one or more employee/lobbyists, and those who lobby on
behalf of such organizations.
In the past, ethical guidelines and professional standards for lobbyists expressed by voluntary
organizations of professional lobbyists had contained references to complying with the
requirements of congressional ethical standards. The guidelines adopted by the American League
of Lobbyists, for example, provide in part that “A lobbyist should not cause a public official to 71
violate any law, regulation or rule applicable to such public official.” Now, however, because of
the change to the lobbying law in the “Honest Leadership and Open Government Act of 2007,”
the conduct of a lobbyist which could bring a Member of Congress or a congressional staff
employee in violation of such internal, congressional rules on gifts and travel reimbursements,
may result in criminal and/or civil penalties for the lobbyist.
Registrants under LDA are now required by law to provide a certification in writing that the
person or organization filing (i) “has read and is familiar with” the rules of the House and Senate
regarding gifts and travel, and (ii) has not provided, requested or directed that a gift or travel be
offered to a Member or employee of Congress “with knowledge that the receipt of the gift would 72
violate” the respective House or Senate rule on gifts and travel. Additionally, there is now a
specific prohibition within the federal lobbying law on any registered lobbyist, any organization
which employs one or more lobbyists and is required to register, and any employee required to be
listed as a lobbyist by a registrant, from making a gift to, or reimbursing or paying travel
69 18 U.S.C. § 207(b).
70 18 U.S.C. § 207(f); note definitions at 18 U.S.C. § 207(i)(1)(B).
71 American League of Lobbyists, “Code of Ethics,” Article 2, Section 2.2, adopted on February 28, 2000. See
http://www.alldc.org/ethicscode.cfm (last visited on October 16, 2007).
72 P.L. 110-81, Section 203(a), adding 2 U.S.C. § 1604(d)(1)(G).
expenses of, a Member or staffer of Congress if the person has knowledge that the gift or travel 73
offered may not be accepted under the respective, applicable rules of the House or Senate. The
penalties for failing to comply with the LDA include civil penalties of fines of up to $200,000,
and criminal penalties for knowing and corrupt failure to comply with the law of up to five years’ 74
imprisonment. Intentional false statements or material omissions in required certifications to
any agency or department of the federal government concerning a material matter within that
federal office’s jurisdiction, may also be prosecuted under the general false statements and fraud 75
The House and Senate rules on the receipt of gifts from outside, private sources serve, in effect,
as both an implementation and exceptions to the statutory gift provisions enacted into law in
1989, as part of the Ethics Reform Act of 1989, which generally prohibits federal officials from
soliciting or receiving gifts from any person doing business with or seeking action from one’s 76
agency, or who is affected by the performance of one’s official duties. That statute allows a
federal employee’s “supervisory ethics office” to promulgate, in rules and regulations, exceptions
to the general statutory prohibition, and to set out the circumstances in which it would be
permissible for employees to accept certain payments, gifts or reimbursements from outside 77
private sources. It should be noted, however, that since the exceptions in the House and Senate
gift rules allow for the receipt of gifts in certain circumstances, but do not authorize the
solicitation of any such gifts, Members, officers and employees are still prohibited by law from
soliciting any gifts from those doing business with or seeking action from the Congress.
Members, officers and employees of the House and the Senate have since 1995 been under
restrictive rules on gifts and travel reimbursements somewhat similar to the current rules put in 78
place in 2007. The 2007 changes implemented further restrictions on the interaction of
registered lobbyists or their clients with Members and staff of Congress, particularly with
reference to de minimis gifts and travel reimbursements, but perhaps even more significantly, also
instituted procedures and requirements which will allow for more oversight, disclosure and
enforcement of the existing prohibitions.
This discussion of the House and Senate ethics rules is intended only as a summary and overview
of the gift restrictions. For specific fact situations, and details on the prohibitions, reference
should be made to the actual language of the applicable House or Senate rule, and to
interpretations of the House Committee on Standards of Official Conduct or the Senate Select
Committee on Ethics.
73 P.L. 110-81, Section 206, adding Section 25 to the Lobbying Disclosure Act of 1995.
74 P.L. 110-81, Section 211, amending 2 U.S.C. § 1606.
75 18 U.S.C. § 1001.
76 P.L. 101-194, Section 303, 5 U.S.C. § 7353(a).
77 5 U.S.C. § 7353(b)(1).
78 S.Res. 158, 104th Cong. (July 28, 1995); H.Res. 250, 104th Cong. (November 16, 1995), see H.Res. 9, 106th Cong.,
January 6, 1999, providing for de minimis exception. The House gift rules were changed significantly by H.Res. 6, th
110 Congress (January 4, 2007), and the Senate gift rules by P.L. 110-81, Title V (Sept. 14, 2007).
The general, or “default” rule in the House and the Senate is that no gifts may be accepted by
Members and staff from outside, private sources unless specifically permitted by the rules of the 79
respective body. Although the general rule is that the receipt of all gifts is generally prohibited
unless authorized by the rules, the House and Senate rules list over 20 express exceptions to the
gift prohibition (23 in the House and 24 in the Senate), including an additional category of
exception for the receipt of travel expenses or reimbursements in certain cases for “officially
The limitations and prohibitions in these rules apply not only to gifts given directly to the
Member, officer, or employee of the House or Senate, but also gifts to a family member of the
Member, officer, or employee, if the gift is given “with the knowledge and acquiescence” of the
Member, officer, or employee, and if the Member, officer, or employee “has reason to believe the 80
gift was given because of” his or her official position.
While gifts from all private sources are generally covered by the prohibitions and restrictions of
the House and Senate gift rules, the congressional rule provisions may apply to gifts from
lobbyists on an even more restrictive basis. Certain exceptions to the general prohibitions might
allow Members and staff to receive particular kinds of gifts from the general public, but will not
exempt such gifts if they are from registered lobbyists, from agents of foreign principals
registered under the Foreign Agents Registration Act, or from their clients.
For example, the “under-$50” exception in the House and Senate gift rules which allows
Members and staff to generally accept gifts from private sources if a gift is valued under $50, and
which had in the past allowed Members and staff to accept gifts such as a bottle of liquor or wine,
tickets to certain sporting or entertainment events, and meals, regardless of the source of such
gifts, will no longer allow the receipt of such gifts under this exception if the gift is provided by a 81
lobbyist, a foreign agent, or a private client of the lobbyist or foreign agent.
Additionally, while a lobbyist or foreign agent may be a “relative” or a “personal friend” of a
Member, officer and employee, and may thus fit within one of those two exceptions to the gift
ban, the “personal hospitality” of a lobbyist or a foreign agent is not separately exempt from the
rules prohibitions, and thus Members and employees may not accept meals or lodging in the 82
home of a lobbyist solely under the “personal hospitality” exemption. Similarly, while
contributions to an authorized legal defense fund are generally permitted as an express exemption
to the gifts rules, such contributions may not be received from lobbyists or foreign agents under 83
79 House Rule 25, cl. 5(a)(1)(A)(i); Senate Rule 35, para. 1(a)(1).
80 House Rule 25, cl. 5(a)(2)(B)(i); Senate Rule 35, para. 1(b)(2)(A).
81 House Rule 25, cl. 5(a)(1)(A)(ii) and 5(a)(1)(B)(i); Senate Rule 35, para. 1(a)(2)(A),(B).
82 House Rule 25, cl. 5(a)(3)(P); Senate Rule 35, para. 1(c)(17).
83 House Rule 25, cl. 5(a)(3)(E) and cl. 5(e)(3); Senate Rule 35, para. 1(c)(5) and para. 3(c).
Members and staff of the House and Senate are expressly prohibited from receiving anything
from lobbyists and agents of foreign principals for an entity or organization that is “maintained or 84
controlled” by a Member, officer, or employee; are prohibited from directing or designating
charitable contributions from a lobbyist or foreign agent (other than a contribution in lieu of an 85
honorarium if properly reported within 30 days); and may not accept a financial contribution or
expenditure from a lobbyist or foreign agent for a conference or retreat, or the like, sponsored by
or affiliated with an official congressional organization for or on behalf of Members, officers or 86
employees. Under recent amendments, Members of the House and Senate are not allowed to
participate in any event honoring that Member during the national political convention of that
Member’s political party, if the event is sponsored by a registered lobbyist or private entity 87
retaining such registered lobbyist.
Regarding the provision of travel expenses, or reimbursement for such expenses to Members,
officers and employees of Congress, the general exception which allows, in certain limited
circumstances and under particular guidelines, Members and staff to participate in “officially
connected” travel activities, conferences, fact-findings, and symposia paid for by outside, private
sources, will not apply (and the receipt of such expenses or reimbursements will be prohibited) if
a registered lobbyist, a foreign agent, or a client of such lobbyist or foreign agent pays for such
travel, or where a lobbyist is involved in the planning of or participation in the event. This, and
the other exceptions to the general prohibition on receiving gifts from outside, private sources, are
discussed in more detail following:
Both the House and Senate rules currently provide a general de minimis exception for gifts from
private sources, and allow for the acceptance of a gift (including the gift of a meal) if the gift has 88
a value of less than $50. Gifts aggregating $100 or more in a year from any one source,
however, may not be accepted. Any gift of $10 or more will be counted toward the yearly
aggregate, but no specific accounting or formal record keeping for all such gifts of $10 or more is
expressly required by the rules.
Although this exception generally allows acceptance of under-$50 gifts from many sources, this
general exception for gifts of under $50 is not available to allow such a gift from a registered 89
lobbyist, an agent of a foreign principal, or their private clients. This does not necessarily mean
that absolutely “no gifts” may be given or offered to, or accepted by, a Member or employee of
Congress from registered lobbyists or their clients, but rather that any such gift, to be permitted,
must be given, offered or accepted under another exception different than the “under-$50”
exception to the gift rule. For example, certain items of “nominal value” or with “little intrinsic
value,” such as greeting cards, baseball caps and T-shirts, are also expressly exempt from the gifts
limitation, and there is no limitation of this exception for gifts of nominal value or little intrinsic
84 House Rule 25, cl. 5(e)(1); Senate Rule 35, para. 3(a).
85 House Rule 25, cl. 5(e)(2) and (f); Senate Rule 35, para. 3(b) and 4.
86 House Rule 25, cl. 5(e)(4); Senate Rule 35, para. 3(d).
87 P.L. 110-81, Sections 305 and 542, amending House Rule 25, cl. 8, and Senate Rule 35, para. 1(d)(5).
88 House Rule 25, cl. 5(a)(1)(B); Senate Rule 35, para. 1(a)(2).
89 House Rule 25, cl. 5(a)(1)(A)(ii) and 5(a)(1)(B)(i); Senate Rule 35, para. 1(a)(2)(A),(B).
value from a lobbyist, foreign agent, or client.90 Furthermore, “food and refreshments of nominal
value,” when not taken as part of a meal, are also exempt from the gift ban and may be received
from any source, including lobbyists.
One of the major categories of exemption from the strict gifts prohibitions are gifts from one’s
relatives, and gifts from personal friends. The House and Senate gift bans, seeking not to unduly
interfere with normal family and personal relationships, allow the receipt and exchange of gifts 91
from and between family members and from a broadly defined category of “relatives.”
Similarly, Members, officers and employees may continue to exchange gifts with or receive gifts 92
from personal friends. If a gift from a personal friend is to exceed $250 in value, however, the
Member, officer, or employee must get a written determination from the House Committee on
Standards of Official Conduct in the House, or the Senate Select Committee on Ethics in the 93
Senate, that the exception still applies. In an effort not to create too large a potential “loophole”
within the gifts rules by allowing one to merely claim that any gift-giver is a “friend,” the rules
establish more objective criteria to be considered in determining whether one qualifies as a
personal “friend,” including whether the Member, officer, or employee has a history of personal
friendship and gift exchange with this individual; whether the individual in question paid
personally for the gift, or was reimbursed or claimed a tax deduction for it; and whether the
Member, officer, or employee knew that similar gifts were given by this individual to other 94
Members, officer or employees.
A person who is a lobbyist by profession, but is also a relative or a personal friend (as defined) of
a Member of Congress or of a congressional staffer, may therefore continue to participate in
normal gift giving and gift exchanges based on that personal relationship with his or her relative,
friend or fiance(e).
A meal provided to a Member, officer, or employee is considered a “gift” to that Member, officer, 95
or employee, and may not be accepted unless it meets other specific exceptions. Since there is a
general exemption for gifts of less than $50, however, a meal may generally be accepted as long
as the value of the meal is below that amount (and does not exceed the $100 yearly aggregate
from that one source), and is not offered by a lobbyist, a foreign agent, or a private client of the
90 House Rule 25, cl. 5(a)(3)(W); Senate Rule 35, para. 1(c)(23).
91 Family member is defined in the Ethics in Government Act to include a wide variety of relatives and, specifically
includes the fiance(e) of the Member, officer, or employee. 5 U.S.C.A. App. 6, § 109(16). House Rule 25, cl.
5(a)(3)(C); Senate Rule 35, para. 1(c)(3). Thus, contrary to popular myth as expressed in the press, a congressional
staffer may accept an engagement ring from a fiance (who may even be a “lobbyist”) without the “approval” of either
her boss or the ethics committee.
92 House Rule 25, cl. 5(a)(3)(D)(i); Senate Rule 35, para. 1(c)(4)(A).
93 House Rule 25, cl. 5(a)(5); Senate Rule 35, para. 1(e). This requirement does not apply to gifts from “relatives,”
including from one’s fiancee.
94 House Rule 25 cl. 5(a)(3)(D)(ii)(I)-(III); Senate Rule 35, para. 1(c)(4)(B)(i)-(iii).
95 See definition of “gift,” House Rule 25, cl. 5(a)(2)(A); Senate Rule 35, para. 1(b)(1).
lobbyist or foreign agent.96 When food or refreshments are offered simultaneously (same time and
place) to both a Member, officer, or employee and his or her spouse or dependent, only the food
provided to the Member, officer, or employee will be considered a “gift” for the purpose of 97
figuring the amount of such a gift under the rules.
It should be noted also that under both the House and Senate rules, refreshments and food of
“nominal value,” when not part of a meal, are also expressly exempt from the gifts restriction and 98
may be accepted without violation of the gift rules. This exception would appear to allow one to
partake of refreshments, appetizers, hors d’oeuvres, and drinks commonly served at receptions
and parties, without regard to the gift prohibition, and without regard to whether the sponsor is a
“lobbyist,” a lobbying organization, or an entity which employs lobbyists.
Although meals are generally included in the definition of a “gift,” and although free meals from
private individuals or organizations are not in themselves exempt from the gift ban, there are a
number of situations and instances where a Member, officer, or employee may accept such a meal
under the House and Senate gift rules, even without regard to the $50 de minimis limitation.
Members, officers, and employees would be able to accept such gifts of meals when in
connection with attendance at a political fund-raising event sponsored by a political 99100
organization; from family and personal friends; in connection with outside, private business
employment activities, employment discussions with a prospective employer, or when provided
by a political organization in connection with a campaign event sponsored by the political 101
organization; in the course of permissible “training” events when served to all attendees as an 102
integral part of the event; when an individual provides “personal hospitality” at his or her
personal or family residence (but a registered lobbyist or agent of a foreign principal does not 103
qualify for the personal hospitality exemption); in connection with the permissible attendance 104
at “widely attended” gatherings, including charitable events, when taken in a group setting; or
in connection with the acceptance of necessary expenses for approved fact-finding or other
“officially connected” travel or conference expenses under the specific rules and restrictions for 105
such “officially connected” events.
96 In the House, a gift rule change in 2003 provides that the value of food sent by an outside, private source to a
congressional office for the staff will be prorated among the employees sharing the items, to determine if such value is
less than $50 per staff employee, rather than having the entire amount attributable to the employing Member (as th
previously done). House Rule 25, clause 5(a)(1)(B), H.Res. 5, 108 Congress, January 7, 2003. The House Committee
on Standards of Official Conduct has noted certain caveats in this provision, including the direction that food must be
refused entirely “if the person offering it has a direct interest in the particular legislation or other official business on
which staff is working at the time”; and that any such gifts may not be solicited. “Recent Gift Rule Amendment,”
Memorandum, April 11, 2003, at 1-2. Even de minimis, “under-$50” gifts, however, may no longer be accepted from
lobbyists, foreign agents, or their private clients.
97 House Rule 25, cl. 5(a)(2)(B)(ii); Senate Rule 35, para. 1(b)(2)(B).
98 House Rule 25, cl. 5(a)(3)(U); Senate Rule 35, para. 1(c)(22).
99 House Rule 25, cl. 5(a)(3)(B) and 5(a)(3)(G)(iii); Senate Rule 35, para. 1(c)(2) and 1(c)(7)(C).
100 House Rule 25, cl. 5(a)(3)(C) and (D); Senate Rule 35, para. 1(c)(3) and (4).
101 House Rule 25, cl. 5(a)(3)(G)(i)-(iii); Senate Rule 35, para. 1(c)(7)(A)-(C).
102 House Rule 25, cl. 5(a)(3)(L); Senate Rule 35, para. 1(c)(13).
103 House Rule 25, cl. 5(a)(3)(P); Senate Rule 35, para. 1(c)(17).
104 House Rule 25, cl. 5(a)(3)(Q) and 5(a)(4); Senate Rule 35, para. 1(a)(2)(B) and 1(d).
105 House Rule 25, cl. 5(b); Senate Rule 35, para. 2.
In addition to the exceptions for gifts from “relatives” and gifts made on the basis of “personal
friendship,” the House and Senate gift rules also exempt from the gift prohibitions certain gifts of
“personal hospitality” provided by an individual who is not a registered lobbyist nor an agent of a 106
foreign principal. The personal hospitality must be provided by an individual, and not a
corporation, a business entity, or an organization, for a non-business purpose at the personal
residence or on property or facilities owned by the individual or his or her family.
Members, officers or employees are expressly permitted, as an exception to the gift rules, to
accept an offer of free attendance at a “widely attended” gathering, such as a “convention,
conference, symposium, forum, panel discussion, dinner, viewing, reception, or similar event,”
when the free attendance is offered by the sponsor of the event, and when the Member, officer, or
employee is either to “participate” in the event or, if the Member, officer, or employee is not
participating, when the event is deemed “appropriate to the performance of the official duties” or 107
the representative function of the Member, officer, or employee attending. A “widely attended
event” has been interpreted in the House and the Senate to be the type of event described above
which is open to a broad range of persons interested in the subject matter or is open to individuals
of a particular industry or profession, where more than 25 non-congressional attendees are 108
expected. If an event meets the criteria of a “widely attended” gathering, a House Member,
officer, or employee may, in addition to accepting “free attendance,” also bring an accompanying 109
individual to such an event, and a Senator, officer or employee of the Senate may also bring an
accompanying individual if others in attendance will be so accompanied, or when “appropriate to 110
assist in the representation of the Senate.” When permitted to attend, the “free attendance”
which one may accept includes the waiver of any attendance fee, local transportation, and food,
refreshments, entertainment and instructional material provided to all the attendees as an integral
part of the event. The acceptance of entertainment or food collateral to the event, or not taken in a
group setting, is not permitted as part of the exception, and would be considered a “gift” coming 111
within the gift limitations and prohibitions, unless otherwise exempt.
Members, officers, or employees have traditionally been allowed to participate in charitable
events, including charitable fund-raisers. Under current House and Senate rules, Members,
officers, and employees may continue to accept (for themselves and a spouse or dependent) “free
attendance” at charitable events provided by the sponsor of the event, including the waiver of
106 House Rule 25, cl. 5(a)(3)(P); Senate Rule 35, para. 1(c)(17).
107 House Rule 25, cl. 5(a)(3)(Q) and cl. 5(a)(4)(A)(i) and (ii); Senate Rule 35, para. 1(c)(18) and para. 1(d)(1)(A) and
108 House Committee on Standards of Official Conduct, Rules of the U.S. House of Representatives on Gifts and Travel,
106th Cong., 2d Sess. at 22 (April 2000); Senate Select Committee on Ethics, Senate Ethics Manual, S. Pub. 108-1, at
109 House Rule 25, cl. 5(a)(4)(B).
110 Senate Rule 35, para. 1(d)(2).
111 House Rule 25, cl. 5(a)(4)(D); Senate Rule 35, para. 1(d)(4).
entrance or other such fees, and the provision of meals, food, and entertainment provided as an 112
integral part of the event to all attendees. In the House, the Member, officer, or employee is
expressly prohibited from accepting “reimbursement for transportation and lodging” expenses
(other than for local transportation) in connection with such event unless certain criteria are 113
met. In the Senate, when a charitable event is not substantially recreational in nature (that is,
when the event is not, for example, a celebrity golf, tennis, or ski event or the like), and when the
event and travel meet the stricter requirements for “necessary” transportation expenses for
“officially connected” travel, such transportation and lodging expenses may be accepted for 114
charitable fund-raising events.
Members, officers, and employees of the House and Senate may, under certain conditions and
restrictions, continue to accept (from other than lobbyists, agents of a foreign principal, or their
private clients) reimbursement or payment for “necessary transportation, lodging and related
expenses for travel” for such things as fact-finding trips, meetings, speeches, conferences or
similar events which are “in connection with the duties of the Member, officer or employee as an 115
officeholder.” Such reimbursement when permitted, since it is “in connection” with the official
duties of a Member or employee, is considered in theory to be a reimbursement to the House of
Representatives or to the Senate, rather than a prohibited personal gift to the Member, officer, or
employee, when certain conditions and restrictions are observed.
General Prohibition: No Payments/Sponsorship By Lobbyists, Foreign Agents, or Their Private
Clients. The general rule in the House and in the Senate is that expenses or reimbursements for
“officially connected” travel may not be accepted from a lobbyist, an agent of a foreign principal,
or from a private client of a lobbyist or foreign agent (that is, a private organization retaining one 116
or more lobbyists or foreign agents). Furthermore, the receipt of expenses for this kind of travel
may generally not be accepted if the trip were, “in any part,” planned, organized, requested or 117
arranged by a registered lobbyist or a foreign agent. To avoid a situation where lobbyists,
foreign agents, or their clients are “indirectly” providing sponsorship or payment for otherwise
permissible travel, part of the certification required for pre-approval of any privately financed
“officially connected” trip is that the sponsoring entity has not and will not accept funds from a
112 House Rule 25, cl. 5(a)(3)(Q), as amended by H.Res. 437, 110th Cong., Sec. 4, and House Rule 25, cl. 5(a)(4)(C);
Senate Rule 35, para. 1(a)(2)(B), and 1.
113 House Rule 25, cl.5(a)(4)(C)(i)-(iii). All proceeds for such event must go to a 501(c)(3) organization, which must
also offer and pay for the “transportation and lodging.”
114 Senate Rule 35, para. 1(d)(3), and Senate Rule 35, para. 2(a)-(e).
115 House Rule 25, cl. 5(b)(1), Senate Rule 35, para. 2(a).
116 House Rule 25, cl. 5(b)(1)(A); Senate Rule 35, para. 2(a)(1).
117 House Rule 25, cl. 5(c)(3), see also House Rule 25, cl. 5(d)(1)(E); Senate Rule 35, para. 2(d)(1)(A), see also Senate
Rule 35, para. 2(e)(1)(D). While some lobbyists may believe the rule can be circumvented by requesting an assistant to
organize travel for lawmakers (see Birnbaum, “Seeing the Ethics Rules and Raising an Exception,” The Washington
Post, October 23, 2007, at A 17), the source of travel funds must certify that the travel has not “in any part” been
“planned, organized, requested, or arranged” by a registered lobbyist. Intentional false certifications and statements to
the Federal Government may be prosecuted under the general false statements and fraud statute, 18 U.S.C. § 1001.
lobbyist, foreign agent, or their clients, which are “earmarked” for the purpose of financing the 118
Certification and Pre-Approval. Under the restrictions adopted in 2007, all Members and
employees of the House or Senate, before accepting any payments or reimbursements from
private sources for “officially connected” travel, must now provide sponsor certifications to, and
receive advance approval from, the appropriate ethics committee (House Committee on Standards 119
of Official Conduct or the Senate Select Committee on Ethics); and Members, officers and
employees, after the completion of such travel, must provide a detailed disclosure of the expenses 120
reimbursed and the events in which they participated. In the certifications that must be
submitted to the appropriate ethics committees, the sponsor must certify that the travel will not be
paid for by a lobbyist or a foreign principal; that the source of the funding either does not retain a
lobbyist or foreign agent or is an exempt organization permitted under House or Senate rules to
provide travel expenses; that the trip meets the requirements and restrictions of House or Senate
rules; that the congressional traveler will not be accompanied on any segment of the trip by a
lobbyist as prohibited by rule ; and that no lobbyist or foreign agent has requested or arranged for 121
the travel to be provided.
Exceptions for Certain Organizations to Restrictions on Sponsorship of Trips. There are two
exceptions made to the congressional rules restrictions on sponsorship of or payment for
officially connected travel by certain organizations. These two exceptions are relevant to an
organization or group which would otherwise be prohibited from paying for or sponsoring such
travel because the group employs or retains one or more persons who lobby on behalf of that
Educational (House) or Charitable (Senate) Groups. Groups or organizations that employ a
lobbyist or foreign agent may provide sponsorship or payment of officially connected travel if, in
the House, the group is an accredited “institution of higher education,” or, in the Senate, the
group is in the broader category of a 501(c)(3) charitable, educational or scientific organization 122
approved by the Senate Select Committee on Ethics. In such cases, the group, like all other
permissible sponsors of such “officially connected” travel, may provide, in the case of travel by
those in the House of Representatives, travel expenses for up to four days for events within the 123
United States or seven days exclusive of travel time outside of the United States, and for those
in the Senate, travel expenses for up to three days for travel within the United States and seven 124
days for foreign travel. Under the House exception which allows “institutions of higher
education” employing lobbyists to provide travel expenses, it appears to be permissible for a 125
lobbyist to accompany a House Member or staffer on such travel. When charitable, § 501(c)(3)
groups employing lobbyists are permitted to provide transportation expenses under the Senate
rules, however, it is prohibited for a lobbyist to accompany a Senator or staffer “at any point
118 House Rule 25, cl. 5(d)(1)(C); Senate Rule 35, para. 2(e)(1)(C).
119 House Rule 25, cl. 5(d), Senate Rule 35, para. 2(e). Employees must also receive advance approval for travel from
their supervising Member or office.
120 House Rule 25, cl. 5(b)(1)(A)(ii) and cl. 5(b)(2) and (3); Senate Rule 35, para. 2(c) and 2(e).
121 House Rule 25, cl. 5(d); Senate Rule 35, para. 2(e).
122 House Rule 25, cl. 5(b)(1)(C)(i); Senate Rule 35, para. 2(a)(2)(A)(ii).
123 House Rule 25, cl. 5(b)(4)(A).
124 Senate Rule 35, para. 2(f)(1).
125 House Rule 25, cl. 5(c)(1)(B), see also certifications in Rule 25, cl. 5(d)(1)(D).
throughout the trip.”126 Under House interpretations, it is also apparently permitted for a lobbyist
to be involved in the planning, organization, request or arrangement of travel sponsored by an 127
“institution of higher education”; while under Senate rules, the Senate Select Committee on
Ethics is instructed to issue regulations identifying when activities of lobbyists are to be
considered de minimis and not in violation of the restriction on lobbyists’ participation in the 128
planning, organizing or arranging of such events.
One-Day Events. There is a second exception to the sponsor limitation, and that is for one-day
officially connected events. Expenses for such events may be provided by any group or 129
organization, even one that retains a lobbyist or foreign agent. The one-day event may include 130
an overnight stay, and the respective ethics committee in the House or Senate may approve two 131
nights’ stay for a one-day event when appropriate. When a one-day event is allowed to be
financed by a group or organization, although no lobbyist is allowed to accompany the Member
or staffer “on any segment” of such travel, actual attendance of a lobbyist at the site of the event 132
is not prohibited. Participation of a lobbyist in the planning, organization, request or 133
arrangement of such one-day events must, in the House, be only de minimis. In the Senate, the
Senate Select Committee on Ethics is instructed to issue regulations identifying when activities of
lobbyists are to be considered de minimis and not in violation of the restriction on lobbyists’ 134
participation in the planning, organizing or arranging of such events.
Necessary and Reasonable Expenses; Recreation, Entertainment Expenses. The permission to
accept “necessary” travel expenses for events “in connection with the duties of a Member, officer
or employee as an officeholder” permits Members and staff to accept “reasonable expenses” for
such travel. As described in congressional rules, such expenses would generally cover items such 135
as “transportation, lodging, conference fees and materials, and food and refreshments.” The
permission to accept “necessary” and “reasonable” expenses does not allow, however, nor had it
previously allowed for, the acceptance of travel expenses for any events “which are substantially 136
recreational in nature,” nor does the permission extend to the acceptance of expenses for any
“recreational activities,” or for expenditures for entertainment “other than that provided to all 137
attendees as an integral part of the event.” Thus, even on legitimate, “officially connected”
travel, the expenses for one’s recreational activities during one’s “free time,” such as golfing
green fees or for recreational equipment rentals, are subject to the “under-$50” gift limitation or
other restrictions and prohibitions in the House and Senate rules on “gifts” and would, in most
cases, be required to be paid “out of pocket” by the individual traveler himself or herself.
126 Senate Rule 35, para. 2(d)(1)(B)(ii).
127 House Rule 25, cl. 5(c)(3), see House Committee on Standards of Official Conduct, “Travel Guidelines and
Regulations,” para. F, at p. 4 (February 20, 2007).
128 Senate Rule 35, para. 2(d)(2)
129 House Rule 25, cl. 5(b)(1)(C)(ii); Senate Rule 35, para. 2(a)(2)(A)(i).
130 House Rule 25, cl. 5(b)(1)(C)(ii); Senate Rule 35, para. 2(a)(2)(A)(i).
131 House Rule 25, cl. 5(b)(1)(C); Senate Rule 35, para. 2(a)(2)(B).
132 House Rule 25, cl. 5(c)(1)(A), see House Committee on Standards of Official Conduct, “Instructions for Filling Out
the Private Sponsor Travel Certification Form”, at para. 12, p. 2; Senate Rule 35, para. 2(d)(1)(B)(i).
133 House Rule 25, cl. 5(c)(2).
134 Senate Rule 35, para. 2(d)(1)(A) and para. 2(d)(2).
135 House Rule 25, cl. 5(b)(4); Senate Rule 35, para. 2(f).
136 House Rule 25, cl. 5(b)(1)(B); Senate Rule 35, para. 2(a)(3).
137 House Rule 25, cl. 5(b)(4)(B) and (C); Senate Rule 35, para. 2(f)(2) and (3).
Regulations and guidelines have been adopted in the House, and will be forthcoming in the
Senate, as to what transportation, lodging, food and miscellaneous expenses are deemed 138
“reasonable” in connection with permissible “officially connected” travel. In the House of
Representatives, Members, officers and employees may accept permissible reimbursement 139
expenses for such officially connected events for an accompanying relative, and in the Senate
acceptable expenses may include the expenses for a Member’s, officer’s or employee’s spouse or 140
child if attendance is “appropriate to assist in the representation of the Senate.”
Other exceptions to the strict prohibition on the receipt of any gifts include anything for which
fair market value is paid or anything not used and promptly returned; political contributions or
attendance at political fund-raises sponsored by a political organization; payments to legal
defense funds (other than those from lobbyists and foreign agents); gifts from another Member,
officer, or employee of the Senate or House; food, refreshments, lodging, transportation and other
benefits resulting from outside business or employment activities, from prospective employers, or
provided by a political organization in connection with a fund-raise or campaign event; pensions
and similar benefits from a former employer; informational materials sent to a Member’s office in
the form of books, articles, periodicals, written material, or tapes; awards or prizes in events open
to the public; honorary degrees and non-monetary awards for public service; training if in the
interest of the House of Representatives or the Senate; bequests and inheritances; items which 141
may be received under the Foreign Gifts and Decorations Act, the Mutual Educational and 142
Cultural Exchange Act, or other statute; anything paid for by federal, State, or local
government; opportunities and benefits generally available to the public or to a group of federal
or government employees; a plaque, trophy or commemorative item; anything for which the
House Committee on Standards of Official Conduct or the Senate Select Committee on Ethics
provides a waiver; and home-State products donated to the Member primarily for promotional
purposes such as display or free distribution, and which are of minimal value to any individual
recipient. An additional exception has been added to the Senate rules for certain permissible
“constituent events” in one’s home State, and a similar exception for events with constituent 143
organizations had previously been adopted in interpretations in the House.
It had been a somewhat common practice in the past, although subject to much criticism, for a
“special interest” or lobbying group, or a group or organization represented by a lobbyist, to
invite a Member of Congress or a senior staffer to speak or appear before the group in connection
with subject matters of interest to the organization, and to offer the Member or congressional
staffer an “honorarium” for the speech or personal appearance. Under ethics provisions in House
138 House Committee on Standards of Official Conduct, “Travel Guidelines and Regulations,” para. B, at pp. 2-3
(February 20, 2007).
139 House Rule 25, cl. 5(b)(4)(D).
140 Senate Rule 35, para. 2(d)(4).
141 5 U.S.C. § 7342.
142 22 U.S.C. § 2458a.
143 See now Senate Rule 35, para. 1(c)(24), and 1(g); and House Committee on Standards of Official Conduct, “Gifts
and Travel,” supra at 30-31.
and Senate rules, however, the practice of receiving an “honorarium” for a speech, article, or an
appearance is now flatly prohibited for all Members of the House and the Senate, Senate staff, 144
and for senior House employees and officers.
The honoraria prohibitions in the House and Senate exclude the costs of “actual and necessary”
travel expenses provided or reimbursed by the sponsor of the event, that is, transportation and
subsistence expenses incident to the event provided to the official and his or her spouse or family
member may be accepted. In the Senate, a Senator may bring an employee acting as an aide to an
event rather than a family member. A contribution to charity of up to $2,000 may generally be
made by the sponsor of the event in lieu of the payment of an honorarium to the Member or 145
employee, without violation of this provision or the new gift rule.
The receipt of any outside earned income or compensation from private parties by Members and
staff of Congress will encounter other restrictions and limitations. As a general standard, the
congressional rules in the House and in the Senate prohibit a Member or an employee from
receiving any compensation or allowing any compensation “to accrue to his beneficial interest
from any source, the receipt of which would occur by virtue of influence improperly exerted from 146
his position in Congress.” Other restrictions exist on the receipt of outside income, such as 147
prohibitions on receiving any compensation (or certain gifts) from foreign governments;
Member of Congress contracts with the federal government or receipt of any benefits out of 148
federal government contracts; receiving compensation for representational services before 149
federal agencies; and “self dealing” with “private foundations,” which are the subject of certain 150
Earned income rules and restrictions enacted into law and contained in House and Senate rules 151
provide that all Members of Congress and certain senior staff are subject to an outside earned-
income cap which is equal to 15% of the official salary of a level II in the Executive Schedule;
and they may not (1) affiliate with a firm to provide compensated professional services involving
a fiduciary relationship; (2) allow any such firm to use one’s name; (3) practice a profession
which involves a fiduciary relationship for compensation; (4) serve for compensation as an
officer or board member of any association or corporation; or (5) receive compensation for
144 House Rule 25, cl. 1(a)(2); Senate Rule 36. House officers and employees compensated less than 120% of the
minimum pay for a GS-15 may receive an honorarium if the subject matter is not directly related to their official duties,
the payment is not made because of their status as House officials or employees, and the offering entity does not have
interests substantially affected by the performance or non-performance of their official duties. Although the statutory
honoraria ban was found unconstitutional for federal employees in United States v. N.T.E.U., 513 U.S. 454 (1995), and
although the Department of Justice has ruled that it will not enforce the statutory ban against any officer or employee
even in the legislative or judicial branches of government (see Office of Legal Counsel Opinion, February 26, 1996),
Members and employees of the House and Senate still come within and are subject to the prohibitions in House and
145 Senate Rule 36, see §§ 501(c) and 505(3) of the Ethics in Government Act of 1978, as added by the Ethics Reform
Act of 1989; Senate Rule 35, para. 4; House Rule 25, cl. 1(c), and House Rule 25, cl. 4(b) and cl. 5(f)(1).
146 House Rule 23, cl. 3; Senate Rule 37, para. l.
147 Constitution, Article I, Section 9, Clause 8.
148 18 U.S.C. §§ 431, 432; 41 U.S.C. § 22.
149 18 U.S.C. § 203.
150 26 U.S.C. §§ 4941, 4946.
151 The limitations apply to non-career employees in the government who are compensated at a rate equal to or more
than 120% of the base salary for a GS-15. 5 U.S.C. App.,-Ethics in Government Act, § 501(a); House Rule 25, cl. 4(a);
Senate Rule 36.
teaching without prior approval of the Standards of Official Conduct Committee.152 Income
received over certain amounts, as well as certain gifts, and reimbursements for travel, must be
publicly disclosed by the recipient official in annual personal financial disclosure statements 153
required by the Ethics in Government Act of 1978, as amended.
It should be kept in mind that in addition to express written rules, either the House or the Senate
may exercise its constitutional authority for the self-protection and integrity of the institution by
disciplining a Member or employee of that body for conduct which violates no express House or
Senate rule or law, but which is found contrary to acceptable ethical norms and/or which tends to 154
bring the institution into dishonor or disrepute. For example, the Senate has censured a Senator
for placing a paid lobbyist for a trade association (with interests in particular tariff legislation) on
the staff of the committee considering that legislation, with access to the confidential committee
material. In this censure of Senator Bingham in 1929 for conduct which violated no express rule
or law, the resolution noted that the action of the Senator “while not the result of corrupt motives
on the part of the Senator from Connecticut, is contrary to good morals and senatorial ethics and 155
tends to bring the Senate into dishonor and disrepute....” The House of Representatives has
disciplined Members based in part on violations of provisions of the “Code of Ethics for
Government Service” which states, among other provisions, that an elected or appointed official
in the government should not accept favors or benefits “under circumstances which may be 156
construed by reasonable persons as influencing the performance of his government duties.”
Members, staff, and those who deal with them on a professional basis must thus be cognizant not
only of express ethics rules, regulations and statutory provisions, but must also be sensitive to the
perceptions and appearances of impropriety, special access, or favoritism that may result from
particular transactions and activities.
Lobbyists are not as a class prohibited from making campaign contributions to the campaign of a
Member of Congress, nor are there specific limitations on federal campaign contributions because
152 5 U.S.C. app., Ethics in Government Act, §§ 501(a), 502. Senate staff earning in excess of $25,000 are subject to
somewhat similar limitations by Senate rules, and may not affiliate with a firm or partnership to provide professional
services for compensation; may not permit one’s name to be used in such a form; may not practice a profession for
compensation “to any extent” during regular office hours of the Senate; and may not be an officer or board member of
any publicly held or regulated corporation, financial institution or business entity (does not include non-profit, tax-
exempt organizations). Senate Rule 37, cl. 5 and 6.
153 5 U.S.C. app., Ethics in Government Act, §§ 101 et seq.; House Rule 26; Senate Rule 34.
154 Constitution, Article I, Section 5. Note H.Rept. 90-27, 90th Cong., 1st Sess. 24-26, 29 (1967); House Rule 23, cl. 1;
Ethics Manual for Members, Officers and Employees of the U.S. House of Representatives, 102d Cong., 2d Sess. 12-16 th
(1992); S.Res. 338, 88 Cong., 2d Sess., Sec. 2(a) (1964), Standing Orders of the Senate, Senate Manual, § 79; S.Rept. rdthst
83-2508, 83 Cong., 2d Sess. 22 (1954); Senate Ethics Manual, 108 Cong., 1 Sess. 12-14 (2003).
155 S.Res. 146, 71st Cong. (1929). Note S. Doc. No. 92-7, 92d Cong., 1st Sess., “Senate Election, Expulsion and Censure
Cases from 1793 to 1972” (1972).
156 72 Stat. Part II, B12, ¶5.
one is a “lobbyist.” However, with respect to campaign contributions to a Member of Congress,
and in a federal election generally, it should be noted that cash contributions over $100 are 157
prohibited by federal law; that political contributions from the treasury funds of corporations,
national banks, labor unions, or from federal government contractors are prohibited by federal 158159
law; that campaign contributions are prohibited from foreign nationals, or by one in the name 160
of another; that there are limitations on amounts that may be contributed to federal candidates
per election, primary or run-off from individuals ($2,000 indexed for inflation, currently $2,300), 161
and from political action committees ($5,000 from multi-candidate committees); that political
contributions to federal candidates are required to be publicly reported by the recipient campaign 162
committee of the candidate; and that no campaign contributions may be converted by a 163
Member of Congress to personal use. As noted earlier in this report, the “bundling” of
otherwise legitimate campaign contributions from several individuals by a lobbyist for or on
behalf of a federal candidate, is not prohibited by law or House or Senate rule. However, under
certain circumstances, when the bundled campaign contributions exceed $15,000 (excluding the
individual’s own contribution and that of his or her spouse) in a six-month reporting period, the
recipient campaign committee, when the bundler is “reasonably known” by the recipient to be a
lobbyist, a registered organization with lobbyists, or a committee controlled by them, must 164
separately report the bundled contributions in the required campaign reports.
Whenever things of value are offered to a public official, consideration should be given to the
federal criminal law provisions that concern bribery and illegal gratuities, and to those provisions
of federal criminal law proscribing fraudulent deprivation of the “honest services” of a public
Under the bribery law, a federal official may not “corruptly” receive or solicit, and no one may
corruptly offer or give, anything of value “in return for ... being influenced in the performance of 165
any official act.” The “corrupt” nature of the transaction is part of the required intent which is
characteristic of a “bribe.” This element of the offense—a corrupt agreement or bargain—has
been described as requiring some express or implied quid pro quo involved in the transaction, that 166
is, something given in exchange for something else. The bribe under these circumstances must
be shown to be the thing that is the “prime mover or producer of the official act” performed or
157 2 U.S.C. § 441g.
158 2 U.S.C. §§ 441b, 441c.
159 2 U.S.C. § 441e.
160 2 U.S.C. § 441f.
161 2 U.S.C. § 441a; see Federal Election Commission press release, January 23, 2007, “FEC Announces Updated
162 2 U.S.C. § 434. For a general overview of current federal campaign finance law, see CRS Report RL31402,
Bipartisan Campaign Reform Act of 2002: Summary and Comparison with Previous Law, by Joseph E. Cantor and L.
163 House Rule 23, cl. 6; Senate Rule 38, cl. 2; note 2 U.S.C. § 439a.
164 P.L. 110-81, Section 204, amending the Federal Election Campaign Act of 1971 (2 U.S.C. § 434).
165 18 U.S.C. § 201, see specifically 18 U.S.C. § 201(b).
166 United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404 (1999); United States v. Brewster, 506 F.2d
62, 72 (D.C.Cir. 1974); United States v. Arthur, 544 F.2d 730, 734, 735 (4th Cir. 1976); United States v. Tomblin, 46 th
F.3d 1369, 1379 (5 Cir. 1995).
agreed to be performed.167 Even a campaign contribution could be the “thing of value” given as a
bribe, since the recipient public official need not benefit personally from a bribe that is received 168
by a third party, such as a campaign committee. In United States v. Anderson, the court upheld
the conviction of a registered lobbyist for a mail-order company for bribing a Senator with
“campaign contributions” to vote on certain postal rate legislation, when the evidence was
sufficient to indicate a “corrupt intent” to influence by means of such payments, as opposed to the
permissible activity of merely giving “campaign contributions inspired by the recipient’s general 169
position of support on particular legislation.”
In addition to the bribery clause, the so-called “illegal gratuities” section of the same statute
prohibits the giving or the receipt of something of value, other than as provided by law, “for or 170
because of” an official act done or to be done. Campaign contributions given for a political
candidate who is a federal officeholder are unlikely to be involved in the case of illegal gratuities,
since the thing of value given in the case of an illegal gratuity (unlike for a bribe) must be 171
received for the official “personally” or for himself.
However, as to personal gifts to a public official, it should be noted that the “illegal gratuities”
clause is less exacting than the bribery clause as to the required intent. The “illegal gratuities”
section does not require a specific “corrupt” intent, nor a corrupt bargain or quid pro quo such
that the gift or other thing of value is the “motivator” or the influence for the official act, as is 172
required in the bribery provision. Rather, the illegal gratuities provision requires merely that the
thing of value given or received was “other than as provided by law,” and was given or received
“for or because of” some identifiable official act. Since the illegal gratuity need not be the
motivator of an official act, nor is it required that the illegal gratuity be intended to influence an
official act, an illegal gratuity may even be given after an act has already been performed, as a
“thank you” or in appreciation for the official act. The Supreme Court explained the differing
intents required in the two clauses as follows:
The distinguishing feature of each crime is its intent element. Bribery requires intent “to
influence” an official act or “to be influenced” in an official act, while illegal gratuity
requires only that the gratuity be given or accepted “for or because of” an official act. In
other words, for bribery there must be a quid pro quo—a specific intent to give or receive
something of value in exchange for an official act. An illegal gratuity, on the other hand, may
167 United States v. Brewster, supra at 72, 82.
168 509 F.2d 312 (D.C.Cir. 1974), cert. denied, 420 U.S. 991 (1975).
169 Id. at 330-331. Political contributions to entities do not in themselves constitute bribes “even though many
contributors hope that the official will act favorably because of their contributions.” United States v. Tomblin, supra at
170 18 U.S.C. § 201(c).
171 United States v. Brewster, supra at 77. The statute was amended in 1986, P.L. 99-646, §46(f),(g), 100 Stat. 3601-
3604, to provide technical amendments to the criminal code, including changing the terms “for himself” to
“personally.” There is no indication of an intent to change the substance of the elements of the offense. If facts are
developed that contributions, ostensibly made to a third party or entity “for or because of” official acts done or to be
done by a public official, were in fact used or expended in a manner to financially enrich or financially benefit the
official personally, then it might be argued that such funds were received “personally” or “for himself.” Contributions
to a campaign committee, therefore, which are wrongfully converted to personal use and are used, for example, to pay
for personal living expenses of a public official, or other personal expenses such as transportation, clothing, or food,
might arguably be considered payments received “personally” for or by the official.
172 Brewster, supra at 72; United States v. Sun-Diamond Growers, supra at 404-405.
constitute merely a reward for some future act that the public official will take (and may 173
have already determined to take), or for a past act that he has already taken.
Although no specific illegal bargain, or “corrupt” intent, in giving or receiving an illegal gratuity
need be shown, there is nevertheless a criminal intent requirement embodied in the
characterization “illegal gratuity” (the criminal receipt of a payment) as distinguished from a
mere “gift” unrelated to any official act. That intent has been described as knowingly being
compensated or rewarded (or intending to compensate or reward an official), other than as
provided by law for one’s salary, for an official governmental act already performed or to be 174
performed in the future by the official. While some cases in the circuits had gone so far as to
find that a specific official act need not be contemplated or identified for a payment or gift to
constitute an “illegal gratuity,” as long as the payment or gift was given to a recipient who is in a 175
“position to use his authority in a manner which could affect the gift giver,” the Supreme Court
in the Sun-Diamond case confirmed that such so-called “status gifts,” unconnected to any 176
identified official act, were not violative of the criminal illegal gratuities provision. Such so-
called “status gifts,” without the requisite criminal intent of a connection to any official act, are
regulated and controlled by federal regulations and administrative provisions for executive branch 177
officers and employees, and in the case of Members and employees of Congress are governed
by the House and Senate rules discussed above.
It should be noted that Congress in 1988 amended the mail fraud and wire fraud statutes to
expressly include within the scope of those criminal laws a “a scheme or artifice to deprive 178
another of the intangible right of honest services.” Under the current mail fraud and wire fraud
statutes, therefore, when a Member of Congress receives something of value, such as a “gift”
from a lobbyist or another private individual, and there can be shown some connection between
the gift and public services provided, or some influence intended by the donor or recipient on the
performance of an official “service” by the Member of Congress, then a violation of this law
might be established. The exact parameters of the prohibition, the required connection or “nexus”
of the gift to a particular “service,” and the precise kinds of “official acts” that would constitute
the “services” contemplated by the law are, however, not entirely settled as matters of federal 179
173 United States v. Sun-Diamond Growers, supra at 404-405.
174 United States v. Brewster, supra at 81, 82, quoting earlier Supreme Court decision in United States v. Brewster, 408
U.S. 501, 527 (1972);United States of Irwin, 354 F.2d 192, 196 (2d Cir. 1965), cert. denied, 383 U.S. 967 (1966).
175 United States v. Niederberger, 580 F.2d 63, 69 (3rd Cir. 1978), cert. denied, 439 U.S. 980 (1978); United States v.
Allessio, 528 F.2d 1079, 1082 (9th Cir. 1976), cert. denied, 426 U.S. 94 (1976).
176 United States v. Sun-Diamond Growers, supra at 406-410. See also United States v. Brewster, 506 F.2d 62 (D.C.Cir.
177 5 C.F.R. §§ 2635.201 et seq., 5 U.S.C. § 7353.
178 18 U.S.C. §§ 1341, 1343, 1346. The “honest services” provision was added by Congress in 1988 to rectify the gap
in the law pointed out in the McNally decision (McNally v. United States, 483 U.S. 350, 359 (1987)), which had found
that the mail fraud and wire fraud laws, as then worded, did not include the deprivation of the “intangible” right of
honest services of a public official. P.L. 100-690, Title VII, § 7603(a), 102 Stat. 4508, November 18, 1988.
179 Compare, e.g.,United States v. Espy, 23 F.Supp.2d 1, 6-7 (D.D.C. 1998); United States v. Sawyer, 85 F.3d 713, 728
(1st Cir. 1996); United States v. Rabbitt, 583 F.2d 1014, 1020, 1024-1026 (8th Cir. 1978), cert. denied, 439 U.S. 116
(1979); and United States v. Ney, Criminal Information, (D.D.C. September 15, 2006).
As a profession, attorneys may be called upon more often than others to provide legislative
representational services for clients. When lobbying the Congress, as in providing other
professional services for a client, there are certain ethical rules, guidelines, and considerations
which are unique to and need to be recognized and observed by attorneys.
The American Bar Association has promulgated Model Rules of Professional Conduct, which
have been adopted in one form or another within the various jurisdictions. These rules discuss
ethical considerations and norms for attorneys in not only representing clients before courts, but
also in representing clients in non-adjudicatory matters, such as before a legislature:
RULE 3.9: Advocate in Non-adjudicative Proceedings
A lawyer representing a client before a legislative or administrative tribunal in a non-
adjudicative proceeding shall disclose that the appearance is in a representative capacity and
shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
 In representation before bodies such as legislatures, municipal councils, and executive
and administrative agencies acting in a rule-making or policy-making capacity, lawyers
present facts, formulate issues and advance argument in the matters under consideration. The
decision-making body, like a court, should be able to rely on the integrity of the submissions
made to it. A lawyer appearing before such a body should deal with the tribunal honestly and
in conformity with applicable rules of procedure.
 Lawyers have no exclusive right to appear before non-adjudicative bodies, as they do
before a court. The requirements of this Rule therefore may subject lawyers to regulations
inapplicable to advocates who are not lawyers. However, legislatures and administrative
agencies have a right to expect lawyers to deal with them as they deal with courts.
The ethical rules referenced in Rule 3.9 concern, among other items, duties of attorneys not to
knowingly make false statements, or to fail to disclose a material fact to a tribunal when such
non-disclosure may further a fraud or criminal act of the client (Rule 3.3), as well as specific
prohibitions on improper and undue influence of an officer (Rule 3.5). The Model Rules of
Professional Conduct also note that it is “professional misconduct” for a lawyer to “state or imply
an ability to influence improperly a government agency or official” (Rule 8.4(e)).
Attorneys should also be aware that in addition to federal post-employment “revolving door”
laws, under the American Bar Association Model Rules after a lawyer leaves public employment
he “shall not represent a private client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee, unless the appropriate 180
government agency consents after consultation.” This may in some instances limit the
representational activities of attorneys for clients before Congress when the attorneys have left
public employment; the issue would most likely not arise in the context of general lobbying
180 ABA Model Rules of Professional Conduct, Rule 1.11.
activities by the attorney, but rather in his or her capacity as counselor for someone subject to 181
such proceedings as committee investigatory proceedings and hearings.
181 See discussion, for example, of former rule as it applied to litigation in General Motors Corp. v. City of New York,
501 F.2d 639, 648-651 (2d Cir. 1974); Laker Airways Ltd. v. Pan Am World Airways, 103 F.R.D. 22 (D.D.C. 1984).