Order Code RL31126

Lobbying Congress: An Overview

 of Legal Provisions and

 Congressional Ethics Rules

Updated October 24, 2007

Jack Maskell

Legislative Attorney

American Law Division
Lobbying Congress: An Overview of Legal Provisions

and Congressional Ethics Rules

Summary

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 Leadership and Open Government Act of 2007,”

P.L. 110-81 (S. 1, 110th 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

lobbyists.

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 postemployment 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.
Contents

Introduction/Background ........................................1

The Lobbying Disclosure Act of 1995, As Amended ..................2

Who Is Covered Under the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Expenditure/Income Threshold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Contact and Time Threshold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Information Disclosed on Registration . . . . . . . . . . . . . . . . . . . . . . . . . 6

Quarterly Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Semi-Annual Reports .......................................7

Oral or Written Identifications to Officials Being Lobbied ..........7

Availability of Registration and Filing Information ...............8

“Bundling” of Campaign Contributions . . . . . . . . . . . . . . . . . . . . . . . . 8

Prohibitions on Gifts to Legislators . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Enforcement and Penalties ...................................9

Foreign Agents Registration Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Contingency Fees For Lobbying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Federal Funds Subsidizing or Reimbursing Lobbying . . . . . . . . . . . . . . . . . 13

Post-Employment Lobbying by Federal Officials . . . . . . . . . . . . . . . . . . . . 14

Congressional Ethics Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Gifts and Travel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Honoraria, Private Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Unwritten Standards of Conduct and Propriety . . . . . . . . . . . . . . . . . . 30

Other Statutory Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Campaign Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Bribery, Illegal Gratuities, and “Honest Services” Fraud . . . . . . . . . . 31

Further Ethical Considerations for Attorneys . . . . . . . . . . . . . . . . . . . . . . . 34
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

(continued...)

Lobbying Congress: An Overview of Legal

Provisions and Congressional Ethics Rules

This 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 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.

Introduction/Background

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 First Amendment rights of speech, association and

petition,1

 and may facilitate the exchange of important information and ideas between

the government and private parties.2

 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 legislative process.3

 There are
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3

 (...continued)

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 (prohibition).

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.

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 be in

violation of the chamber’s rules.4

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 publicpolicy 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 from undue influences.5

The Lobbying Disclosure Act of 1995, As Amended

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 directed at Members of Congress. The “Lobbying

Disclosure Act of 1995”6 now provides more specific thresholds, and clearer and

broader definitions of who is a “lobbyist” and what “lobbying” activities and contacts
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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 P.L. 110-81 to conform to the new quarterly (rather than semiannual) 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).

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 Open Government Act of 2007,”7 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 filed in the calendar

quarters beginning after January 1, 2008.8 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 those six-month periods after January 1, 2008.9

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 amended by the

2007 Act.10 Rather, the amendments in 2007 were substantially directed at 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 been

offered.

Who Is Covered Under the Act. 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 employer.11 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
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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 be disclosed generally as “lobbying activities.” 2 U.S.C. § 1602(7). Note H.Rept.

104-339, 104th Cong.,1st 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).

14 2 U.S.C. § 1603(a)(1).

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 members, officers or

employees who engage in such activities.12

For purposes of discussing the LDA requirements, it is useful to recognize two

general categories of lobbyists:

! (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 behalf; and

! (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-house” lobbyists) must thus

register and identify its employee/lobbyists.13 “Lobbying firms” or entities (including

sole practitioners) who lobby or have employees, partners or associates who lobby

for “outside” clients, must file a separate registration for each client represented,

identifying such things as the lobbyist, the client and the issues.14

Expenditure/Income Threshold. 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
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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-month period.

18 2 U.S.C. § 1602(8)(A).

(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 adjustments are considered,

$12,225) in the applicable three-month reporting period.15 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 $2,500 (or, if past adjustments are considered,

$3,000) in a 3- month filing period.16

Contact and Time Threshold. 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 “lobbying activities” over a three- month period.17

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 respect to the formulation, modification or adoption of a federal

law, rule, regulation or policy.18 Thus, by definition, a “lobbying contact” involves

a direct communication to policy and decision makers, and does not include indirect
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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).

or “grass roots” lobbying activities,19 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 background activities and other efforts in support of those

lobbying contacts.20

Information Disclosed on Registration. 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 earlier.21 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 lobbying,

and those on which he or she has already lobbied for the client or employer.22 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 control of the lobbying activities.23

Quarterly Reports. 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 lobby), or income from
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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).

clients (estimated by outside lobbying firms/practitioners) in excess of $5,000 (and

rounded to the nearest $10,000.24 

Semi-Annual Reports. The 2007 amendments to LDA included several new,

additional items of expenditures, activities, and funding that are required to be

disclosed and reported by registrants on a semi-annual basis.25 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 period;

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.

Oral or Written Identifications to Officials Being Lobbied. 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 under the act, and a disclosure of any interests of foreign
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26 2 U.S.C. § 1609.

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).

affiliates.26 If a written lobbying contact is made, the lobbyist is required on his or

her own to identify any foreign entity on whose behalf 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.

Availability of Registration and Filing Information. 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 filing of lobbying reports.27 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 Election Commission data bases, and to preserve the lobbying

information for six years.28 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.

“Bundling” of Campaign Contributions. 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 registered organization with

lobbyists, or a committee controlled by them.29 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 Commission. 

Prohibitions on Gifts to Legislators. The 2007 amendments to the LDA

now place an express prohibition within the federal lobbying law on any registered
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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.

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 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 not provided or offered

such gifts or travel in violation of those rules.31

Enforcement and Penalties. The LDA, as amended, now has express

criminal penalties for knowing and corrupt failure to comply with the law.32 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 up

to $200,000.33 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 and fraud under federal criminal law.34

Foreign Agents Registration Act

In addition to the required registrations under the federal Lobbying Disclosure

Act of 1995, as amended, the provisions of the Foreign Agents Registration Act

(FARA)35 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 online in a searchable, sortable, and downloadable format.36
CRS-10

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).

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).

The Foreign Agents Registration Act, as amended by the Lobbying Disclosure

Act of 1995, and its amendments, provides that “agents of a foreign principal”37 must

file a registration statement not with the Clerk of the House or the Secretary of the

Senate, but with the Attorney General listing detailed financial and business

information,38 must file and label all informational 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 principal....”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 the Government of the United States.”42

The term “political activities” also includes activities which may generally be

characterized as among those commonly considered to be “lobbying” activities:

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 formulating, adopting, or changing the

domestic or foreign policies of the United States....43

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
CRS-11

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.

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).

foreign principal; and an exemption for certain legal representation of foreign

principals by attorneys in judicial or on-the-record, formal agency proceedings.44

Contingency Fees For Lobbying

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 of the federal government.45 Activities which might

generally or colloquially be called “lobbying,” but which involve making

representations on behalf of private parties before federal agencies to obtain certain

government contracts, may thus be subject to the contingency prohibitions.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 any political activities carried on

by such agent.”47 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 legislation or appropriations.48

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 initio) for public
CRS-12

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 Corporation, 115 F.2d 859, 860 (4th Cir. 1940), cert. denied 312

U.S. 705 (1941); note also Florida League of Professional Lobbyists, Inc. v. Meggs, 87 F.3d

457 (11th 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.

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.

policy reasons, and therefore would be denied enforcement in the courts.49

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 ... by the contingency of the reward.”50 It should

be noted that the laws of 39 States prohibit outright, and the laws of a 40th State limit

the amount of, contingency fees for successful legislative lobbying,51 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 personal

influence before the legislature,52 or where the client had a legitimate claim or legal

right to be asserted in a matter before the legislature (e.g., “debt legislation”).53

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.”
CRS-13

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).

57 31 U.S.C. § 1352(b). See common agency regulations implementing “Byrd Amendment,”

at 55 F.R. 6735-6756 (February 26, 1990).

Federal Funds Subsidizing or Reimbursing Lobbying

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 campaigns directed at influencing

Congress or state or local legislatures on pending legislation.54 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 the federal government.55

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

agreements, or the extension, modification or renewal of these types of awards.56

Federal contractors, grantees and those receiving federal loans and cooperative

agreements must also report lobbying expenditures from non-federal sources which

they used to obtain such federal program monies or contracts. 57 

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
CRS-14

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).

limited in the amount of lobbying in which they may engage if they wish to preserve

this preferred tax-exempt status from the federal government.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, or award.59

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 funds, and which could engage in unlimited lobbying.60 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

501(c)(4)s, they could have one organization which could both receive funds and

lobby without limits.”61 

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 such contacts.62 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.

Post-Employment Lobbying by Federal Officials

There are various “post-employment” or “revolving door” conflict of interest

restrictions upon certain officers and employees of the federal government which
CRS-15

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. § 207(i)(1)(A).

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.

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 had worked

or had authority over while with the government,63 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 of government for one year after the

Member leaves office.64 Senators are now prohibited from such post-employment

lobbying of the Congress for two years after leaving the Senate.65

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 after leaving employment.66 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 employment.67 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
CRS-16

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).

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,

(continued...)

from general lobbying directed at the U.S. Congress immediately after their

government employment.68

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 other

person with respect to such ongoing trade or treaty negotiations.69 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 or agency

of the United States, including Members of Congress.70

Congressional Ethics Rules

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 violate any law, regulation or rule

applicable to such public official.”71 Now, however, because of the change to the
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71 (...continued)

2007).

72 P.L. 110-81, Section 203(a), adding 2 U.S.C. § 1604(d)(1)(G).

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).

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 violate” the respective

House or Senate rule on gifts and travel.72 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 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

respective, applicable rules of the House or Senate.73 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’

imprisonment.74 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 statute.75

Gifts and Travel. 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 agency, or

who is affected by the performance of one’s official duties.76 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 private sources.77 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
CRS-18

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, 110th Congress (January 4, 2007), and the

Senate gift rules by P.L. 110-81, Title V (Sept. 14, 2007). 

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).

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 place in 2007.78 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.

General Restriction. 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 respective body.79 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 connected” travel.

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 gift was given because of”

his or her official position.80

Gifts from Lobbyists. 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.
CRS-19

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).

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).

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

lobbyist, a foreign agent, or a private client of the lobbyist or foreign agent.81

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 home of a lobbyist solely under

the “personal hospitality” exemption.82 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 that exemption.83

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 controlled” by a Member, officer, or employee;84

are prohibited from directing or designating charitable contributions from a lobbyist

or foreign agent (other than a contribution in lieu of an honorarium if properly

reported within 30 days);85 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 employees.86 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 retaining such registered

lobbyist.87

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, factfindings, 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
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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).

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.

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:

Under-$50 De Minimis Exception. 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 a value

of less than $50.88 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 lobbyist, an agent of a foreign principal, or their private

clients.89 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 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.

Exception for Gifts from Family and Friends. 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 from and between family members and from a broadly

defined category of “relatives.”91
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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).

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 previously done). House

Rule 25, clause 5(a)(1)(B), H.Res. 5, 108th 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.

Similarly, Members, officers and employees may continue to exchange gifts

with or receive gifts from personal friends.92 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 Senate, that the exception

still applies.93 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 Members, officer or employees.94

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).

Meals, Food, and Refreshments. A meal provided to a Member, officer,

or employee is considered a “gift” to that Member, officer, or employee, and may not

be accepted unless it meets other specific exceptions.95 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 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
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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.

the Member, officer, or employee will be considered a “gift” for the purpose of

figuring the amount of such a gift under the rules.97

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 may be accepted without violation of the gift rules.98

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 organization;99

from family and personal friends;100 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 organization;101 in the course of permissible “training”

events when served to all attendees as an integral part of the event;102 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 qualify for the

personal hospitality exemption);103 in connection with the permissible attendance at

“widely attended” gatherings, including charitable events, when taken in a group

setting;104 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 such “officially connected” events.105

Exception for Personal Hospitality. 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
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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 (B).

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 38 (2003).

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).

of a foreign principal.106 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. 

Exception for Attendance at “Widely Attended” Gatherings.

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 the representative

function of the Member, officer, or employee attending.107 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 noncongressional attendees are expected.108 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 individual to such an

event,109 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 assist in the representation of the Senate.”110 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 within the gift limitations and prohibitions, unless otherwise exempt.111

Exception for Charitable Events. 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 entrance or other such fees, and the provision of meals, food, and
CRS-24

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.

entertainment provided as an integral part of the event to all attendees.112 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 met.113 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 charitable fund-raising events.114

Exception for Necessary Expenses for “Officially Connected”

Travel, “Fact-Finding” Events, and Conferences. 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 officeholder.”115 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 or more

lobbyists or foreign agents).116 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 arranged by a registered lobbyist or a foreign agent.117 To

avoid a situation where lobbyists, foreign agents, or their clients are “indirectly”
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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).

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 lobbyist, foreign agent, or their clients, which are “earmarked” for the purpose of

financing the proposed travel.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 of Official Conduct or the Senate

Select Committee on Ethics);119 and Members, officers and employees, after the

completion of such travel, must provide a detailed disclosure of the expenses

reimbursed and the events in which they participated.120 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 the travel to be provided.121

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 organization. 

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 approved by the Senate

Select Committee on Ethics.122 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 United States or seven days exclusive of travel time outside of the United
CRS-26

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).

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).

States,123 and for those in the Senate, travel expenses for up to three days for travel

within the United States and seven days for foreign travel.124 Under the House

exception which allows “institutions of higher education” employing lobbyists to

provide travel expenses, it appears to be permissible for a lobbyist to accompany a

House Member or staffer on such travel.125 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 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 “institution of higher education”;127

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 planning,

organizing or arranging of such events.128

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 organization, even one that retains a lobbyist or foreign agent.129 The

one-day event may include an overnight stay,130 and the respective ethics committee

in the House or Senate may approve two nights’ stay for a one-day event when

appropriate.131 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 is not prohibited.132 Participation of a lobbyist in the planning, organization,

request or arrangement of such one-day events must, in the House, be only de

minimis.133 In the Senate, the Senate Select Committee on Ethics is instructed to

issue regulations identifying when activities of lobbyists are to be considered de
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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).

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).

minimis and not in violation of the restriction on lobbyists’ participation in the

planning, organizing or arranging of such events.134

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 as

“transportation, lodging, conference fees and materials, and food and

refreshments.”135 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 recreational in nature,”136 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 attendees as an

integral part of the event.”137 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.

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 “reasonable” in connection with permissible “officially

connected” travel.138 In the House of Representatives, Members, officers and

employees may accept permissible reimbursement expenses for such officially

connected events for an accompanying relative,139 and in the Senate acceptable

expenses may include the expenses for a Member’s, officer’s or employee’s spouse

or child if attendance is “appropriate to assist in the representation of the Senate.”140

Other Exceptions to General Gift Rule. 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
CRS-28

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.

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 Senate rules.

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 may be received under the Foreign Gifts and

Decorations Act,141 the Mutual Educational and Cultural Exchange Act,142 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 organizations had previously been

adopted in interpretations in the House.143

Honoraria, Private Compensation. 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 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, and for

senior House employees and officers.144 

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
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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.

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. 

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

employee, without violation of this provision or the new gift rule.145

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 his position in

Congress.”146 Other restrictions exist on the receipt of outside income, such as

prohibitions on receiving any compensation (or certain gifts) from foreign

governments;147 Member of Congress contracts with the federal government or

receipt of any benefits out of federal government contracts;148 receiving compensation

for representational services before federal agencies;149 and “self dealing” with

“private foundations,” which are the subject of certain tax restrictions.150

Earned income rules and restrictions enacted into law and contained in House

and Senate rules provide that all Members of Congress and certain senior staff151 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

teaching without prior approval of the Standards of Official Conduct Committee.152

Income received over certain amounts, as well as certain gifts, and reimbursements
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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 (1992); S.Res. 338, 88th Cong.,

2d Sess., Sec. 2(a) (1964), Standing Orders of the Senate, Senate Manual, § 79; S.Rept. 83-

2508, 83rd Cong., 2d Sess. 22 (1954); Senate Ethics Manual, 108th Cong., 1st 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.

for travel, must be publicly disclosed by the recipient official in annual personal

financial disclosure statements required by the Ethics in Government Act of 1978,

as amended.153 

Unwritten Standards of Conduct and Propriety. 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 bring the institution into dishonor or

disrepute.154 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 tends to bring the Senate into

dishonor and disrepute....”155 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 construed by reasonable persons as influencing the performance of his

government duties.”156

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. 

Other Statutory Considerations

Campaign Contributions. 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 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
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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 Contribution Limits.”

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. Paige Whitaker.

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).

contributions over $100 are prohibited by federal law;157 that political contributions

from the treasury funds of corporations, national banks, labor unions, or from federal

government contractors are prohibited by federal law;158 that campaign contributions

are prohibited from foreign nationals,159 or by one in the name of another;160 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),

and from political action committees ($5,000 from multi-candidate committees);161

that political contributions to federal candidates are required to be publicly reported

by the recipient campaign committee of the candidate;162 and that no campaign

contributions may be converted by a Member of Congress to personal use.163 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 separately report the bundled contributions in

the required campaign reports.164

Bribery, Illegal Gratuities, and “Honest Services” Fraud. 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 official.

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 any official act.”165 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 is,
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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 F.3d 1369, 1379 (5th Cir. 1995).

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 1379.

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.

something given in exchange for something else.166 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 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 by a third party, such

as a campaign committee. In United States v. Anderson,

168 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 position of support on particular

legislation.”169

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 because of” an official act done or to be done.170 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 received for the official

“personally” or for himself.171

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 required in the bribery
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172 Brewster, supra at 72; United States v. Sun-Diamond Growers, supra at 404 - 405.

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. 1974).

177 5 C.F.R. §§ 2635.201 et seq., 5 U.S.C. § 7353.

provision.172 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 constitute merely a

reward for some future act that the public official will take (and may have

already determined to take), or for a past act that he has already taken.173

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 performed in the future by the official.174

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 “position

to use his authority in a manner which could affect the gift giver,”175 the Supreme

Court in the Sun-Diamond case confirmed that such so-called “status gifts,”

unconnected to any identified official act, were not violative of the criminal illegal

gratuities provision.176 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 officers and

employees,177 and in the case of Members and employees of Congress are governed

by the House and Senate rules discussed above.
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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).

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 another of the intangible right of honest services.”178 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 law.179

Further Ethical Considerations for Attorneys

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 nonadjudicatory 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.

COMMENT:

[1] 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
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180 ABA Model Rules of Professional Conduct, Rule 1.11.

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).

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.

[2] 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 government

agency consents after consultation.”180 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 activities by the attorney, but rather in his or her capacity as

counselor for someone subject to such proceedings as committee investigatory

proceedings and hearings.181