Congressional Quarterly
February 11, 2008
Bart Jansen, CQ Staff
A new bundling disclosure rule for campaign contributions — combined with a dusty House ethics report — has some lobbyists and lawmakers nervous about avoiding ethical and legal problems this election year.
Their key concern is to avoid fundraising that appears tied to pending legislation. Timing is more sensitive now that lobbyists must report how much they bundle for candidates, given a precedent earlier this decade in which the House ethics committee admonished a powerful member for fundraising on the eve of a Senate-House conference committee.
"There’s a high sensitivity to timing," said Republican Conference Chairman Adam H. Putnam of Florida.
The extent of any changes in fundraising is unclear because the bundling rule, part of the ethics and lobbying overhaul (PL 110-81), is so new that the Federal Election Commission hasn’t even approved the precise regulations for filing the reports twice a year. Lobbyists must also detail personal contributions quarterly, with the first reports due in April.
But given the uncertainty, nobody wants to cross a line that could bring bad press, an ethics complaint or even a criminal charge.
"Nobody wants to get burned," said Joshua Zive, an attorney and campaign finance specialist at Bracewell & Giuliani, which lobbies on energy interests. "I don’t think there’s any question that everybody is being much more careful about fundraising."
The new law requires campaigns to list lobbyists who bundled at least $15,000 in contributions during a six-month period. The first reports are expected in July, although the FEC lacks enough members to finalize regulations at this point.
Putnam said the public deserves clear reporting about all fundraising efforts on behalf of a candidate. But he stressed that candidates and lobbyists need more guidance from the House and Senate ethics committees, the FEC and the Justice Department about what is acceptable. One open question is when legislation is considered open, because bills can wait months for conference.
"It’s very ambiguous," Putnam said. "Everyone is committed to playing by the rules, but there has to be crystal-clear guidance."
A former House Republican leadership aide said lobbyists would be well-advised to read a 2004 House ethics committee report and avoid fundraisers for lawmakers who have a hand in drafting bills while the legislation is open.
"I would say personally that you can’t have a fundraiser," said Ted Van Der Meid, a former ethics committee counsel who also served as a top aide to former Speaker J. Dennis Hastert, R-Ill.
"If you’re very involved in legislation or a major player, you have to be extra cautious with fundraising," added Van Der Meid, now a lobbyist himself with McKenna, Long & Aldridge who advises clients on how to comply with the new law.
The ethics report and letter admonished former House Majority Leader Tom DeLay, R-Texas (1985-2006), for taking $58,200 from Westar Energy at a golf outing a week and a half before the start of an energy conference.
The Committee on Standards of Official Conduct didn’t accuse DeLay of performing any favors for Westar and didn’t punish him. But the report said the fundraiser "created an appearance that donors were being provided special access to you regarding the then-pending energy legislation."
Patton Boggs lobbyist Chris Bell, a former Democratic congressman from Texas (2003-2005) who filed the complaint against DeLay, said, "I think it will have a chilling effect, and I think that’s a good thing."
The stakes in how the new law is applied are huge, according to an analysis by the nonpartisan Center for Responsive Politics, which tracks campaign funding and lobbyist spending. While Congress spent almost all 2007 debating the energy bill, individuals employed by oil and gas interests contributed $5.1 million to campaigns during the first nine months last year. On the farm bill, which is still pending months after each chamber approved rival versions, individuals identified with agriculture interests gave $10 million. Individuals from mortgage banks or brokerage firms contributed nearly $1.3 million as remedies to the mortgage crisis linger.
"Unfortunately, I do not think the new law will have a great impact in discouraging campaign contributions and aggressive fundraising on behalf of the industry lobbyists," said Josh Nassar, vice president for federal affairs at the Center for Responsible Lending, which has lobbied for consumers on the mortgage bill.
To avoid trouble, lobbyists must avoid fundraising linked to a lawmaker playing a key role on a specific bill.
"To mention either a thank you for legislation that has been passed or a plea as to why we could give now because a bill is coming up in any kind of fundraising material is ill-advised," said Kenneth A. Gross, a former associate general counsel at the FEC who advises clients about fundraising laws at Skadden, Arps. "Those who are more savvy aren’t going to do that."
Just as water eventually wears through stone, powerful Washington interests are bound to navigate around the new rules.
"I’m trying to show people that although it sounds draconian, in fact it’s already information that’s been out there for people to look at. It’s nothing new," said William B. Canfield, a former counsel to the Senate Republican Conference and Senate Ethics Committee who now specializes in election law at Williams & Jensen. "I don’t see people who are sophisticated shying away from fundraising."