Ethics, Lobbying, and Related Procedural Reforms Proposed in S. 1, 110th Congress
Order Code RL33852
Ethics, Lobbying, and Related Procedural
Reforms Proposed in S. 1, 110th Congress
January 30, 2007
Jack Maskell, Coordinator
Legislative Attorney
American Law Division
R. Eric Petersen, Bill Heniff Jr., and Sandy Streeter
Analysts in American National Government
Government and Finance Division
Todd B. Tatelman
Legislative Attorney
American Law Division
Ethics, Lobbying, and Related Procedural Reforms
Proposed in S. 1, 110th Congress
Summary
This report discusses and analyzes the proposals in S. 1, 110th Congress, as
passed by the Senate on January 18, 2007, concerning congressional ethics, lobbying
reform, and proposals to amend Senate procedures to increase legislative
transparency. Proposed changes in ethics and lobbying provisions are examined in
five general areas: (1) proposed amendments and additions to internal Senate Rules
governing such things as the acceptance of gifts by Senators and staff, including gifts
of free travel; official contacts with Senators’ family members who are lobbyists;
influencing private hiring decisions; and mandatory ethics training; (2) amendments
to Senate Rule provisions and changes in the federal criminal law concerning
“revolving door” restrictions and regulations on former Members and employees of
Congress concerning various post-employment “lobbying” activities and privileges,
including the requirement to disclose negotiations for future private employment; (3)
amendments to the statutory provisions requiring the disclosure of lobbying activities
and other activities of registered lobbyists under the Lobbying Disclosure Act of
1995, as amended; (4) the establishment in the legislative branch of a study
commission on ethics and lobbying; and (5) the statutory provisions concerning the
forfeiture of federal pension annuities for former Members of Congress for the
conviction of certain crimes. Finally, the procedural changes that have been
proposed in S. 1, including procedural matters concerning so-called “earmark
reforms,” matters in conference reports, and cost scoring provisions are also
analyzed.
Contributors to the report include Jack Maskell, legislative attorney, American
Law Division, (coordinator, primarily responsible for covering the provisions
concerning congressional ethics, receipt of gifts by Members and staff, “revolving
door” and other post-employment conflicts of interest, and pension reform); R. Eric
Petersen, analyst in American National Government, Government and Finance
Division (lobbying reform); Sandy Streeter, analyst in American National
Government, Government and Finance Division (congressional earmark reform); Bill
Heniff Jr., analyst in American National Government, Government and Finance
Division (CBO scoring); and Todd B. Tatelman, legislative attorney, American Law
Division (Senate procedures, conference reports, and COLA adjustments).
This report will be updated as warranted.
Contents
Senate Rules Relating to Gifts, Travel, and Other Ethics Matters . . . . . . . . . . . . . 2
Gift Valuation: Tickets to Sporting or Entertainment Events . . . . . . . . . . . . 2
Gifts from Lobbyists and Clients: No De Minimis Exception . . . . . . . . . . . . 2
Event To Honor Member at National Party Convention . . . . . . . . . . . . . . . . 2
Free Attendance at Bona Fide Constituent Events . . . . . . . . . . . . . . . . . . . . . 2
Restrictions on Gifts of Travel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
“Officially Connected” Travel Expenses . . . . . . . . . . . . . . . . . . . . . . . . 3
Travel on Private Aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Congressional Travel Website . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Official Contact by Senate Office with Lobbyist Family Member . . . . . . . . 5
Influencing Private Hiring Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Ethics Violations for Certain Earmarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Mandatory Ethics Training for Senators and Staff . . . . . . . . . . . . . . . . . . . . 6
Annual Ethics Committee Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Financial Disclosure Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Federal Conflict of Interest Law or Senate Rules Concerning Post-Employment,
“Revolving Door” Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Negotiating Prospective Private Employment . . . . . . . . . . . . . . . . . . . . . . . . 6
Floor and Other Privileges of Former Members . . . . . . . . . . . . . . . . . . . . . . 7
“Revolving Door,” Post-Employment Lobbying: Senate Rule . . . . . . . . . . . 7
“Revolving Door,” Post-Employment Lobbying: Criminal Law . . . . . . . . . . 7
“Revolving Door,” Post-Employment Lobbying for Indian Tribes . . . . . . . . 8
Lobbying Disclosure and Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Study Commission on Congressional Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Congressional Pension Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Senate Procedures and Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Out-of-Scope Matters in Conference Reports . . . . . . . . . . . . . . . . . . . . . . . 12
Earmarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Availability of Conference Reports on the Internet . . . . . . . . . . . . . . . . . . . 15
Sense of the Senate on Conference Committee Protocols . . . . . . . . . . . . . . 16
Amounts of COLA Adjustments Not Paid to Certain Members
of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Requirement of Notice of Intent To Proceed . . . . . . . . . . . . . . . . . . . . . . . . 16
CBO Scoring Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Public Availability of Senate Committee and Subcommittee Meetings . . . 17
Amendments and Motions To Recommit . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Ethics, Lobbying, and Related Procedural
Reforms Proposed in S. 1, 110th Congress
This report discusses and analyzes the changes proposed by S. 1, 110th Congress,
in the Senate Rules relating to ethics and to Members’ or staffs’ contact with
registered lobbyists, agents of foreign principals and those employing lobbyists or
foreign agents; and analyzes proposed changes and amendments to federal statutes
governing lobbying disclosure, as well as statutory conflict of interest and standards
of conduct provisions. Because the proposed changes are incorporated in a bill, both
the changes to the Senate Rules (affecting, generally, ethics and Senate procedures),
as well as amendments to statutes (regarding lobbying, conflicts of interest, and
pensions), would become effective only upon enactment of the proposals into law
after agreement with the House of Representatives and signing by the President.1
Proposed changes in ethics and lobbying provisions are examined in five general
areas: (1) internal Senate Rules governing such things as the acceptance of gifts by
Senators and staff, including gifts of free travel; official contacts with Senators’
family members who are lobbyists; and mandatory ethics training; (2) Senate Rule
provisions and changes in the federal criminal law concerning “revolving door”
restrictions and regulations on former Members and employees of Congress
concerning various post-employment “lobbying” activities and privileges; (3) the
statutory provisions requiring the disclosure of lobbying activities and other activities
of registered lobbyists under the Lobbying Disclosure Act of 1995, as amended; (4)
the provision concerning the establishment of a study commission on ethics and
lobbying; and (5) the statutory provisions concerning the forfeiture of federal pension
annuities for former Members of Congress for the conviction of certain crimes.
Finally, the procedural changes that have been proposed in S. 1, including procedural
matters concerning so-called “earmark reforms,” matters in conference reports, and
cost scoring provisions are analyzed in this report.
1 Riddick’s Senate Procedure, S. Doc. 101-28, 101st Congress, 2d Sess., “Rules,” at pp.
1218-1219 (1992). A House or Senate Rule adopted by statute as a function of the rule-
making authority of the House or Senate (Article I, Section 5), may be later changed by the
House or Senate, respectively, by simple resolution.
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Senate Rules Relating to Gifts, Travel, and Other
Ethics Matters
Gift Valuation: Tickets to Sporting or Entertainment Events
Section 107 would amend the Senate Rules on gifts (Rule XXXV) to provide
that the market value of a ticket to a sporting or entertainment event will be the face
value of the ticket; and if there is no face value, then the value of the most similar
ticket sold to the public (taking into consideration all features of the ticket, including
parking, food and refreshments, and any special access to venue areas). If there are
no comparable tickets sold to the public, then the value of the pass or ticket will be
the cost of a ticket with the highest face value for the event.
Gifts from Lobbyists and Clients: No De Minimis Exception
Section 108 would amend the Senate Rule on gifts (Rule XXXV) to provide that
the $50 de minimis exception to the gifts rule (wherein a gift valued at under $50
may be accepted by Senators and staff) does not apply to gifts from a registered
lobbyist, an agent of a foreign principal, or a private entity that retains or employs a
registered lobbyist or foreign agent. The 23 exceptions listed to the gift prohibition
in paragraph (c) of the Senate Rule (Rule XXXV) will still apply to allow acceptance
in those designated circumstances.
Event To Honor Member at National Party Convention
Section 108A would amend Senate Rules (Rule XXXV) to prohibit a Senator
from participating in an event to honor that Senator at a national party convention if
the event is paid for by someone who is required to register as a lobbyist, or is
identified as a lobbyist or a client in any registration report under the Lobbying
Disclosure Act of 1995.
Free Attendance at Bona Fide Constituent Events
Section 403 of S. 1 would provide a specific exception to the general prohibition
on the acceptance of gifts to allow the acceptance of an offer of free attendance in the
Member’s home State for a convention, conference, symposium, forum, panel
discussion, dinner event, site visit, viewing, reception, or similar event, including the
acceptance of a meal (of up to $50 in value), and such items as conference materials,
if the event is sponsored by a constituent group, if the event is to be attended
primarily by at least five “bona fide constituents,” if the Member or staffer
“participates” in the event as a speaker, panel member, presenter, or by performing
ceremonial functions, and if the attendance is appropriate to the performance of
official duties. The expense which may be accepted may not include expenses for
transportation other than local transportation, nor for overnight lodging (see meaning
of “free attendance” for “widely attended events,” Senate Rule XXXV, clause
1(d)(4)). If appropriate and consistent with the event, the Member or staffer may be
accompanied by another individual.
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Restrictions on Gifts of Travel
“Officially Connected” Travel Expenses.
Acceptance of Expenses. Section 109(a) would extend the current
prohibition on accepting travel expenses, or reimbursements of expenses, for so-
called “officially connected” travel from registered lobbyists or agents of foreign
principals (current Senate Rule XXXV, paragraph 2(a)(1)), to restrict the acceptance
of expenses for such travel also from a private entity that retains or employs one or
more lobbyists or foreign agents, that is, the clients of such lobbyists and agents.
This restriction will not apply to receiving expenses or reimbursement of expenses
for such travel from an “individual” (who is not a lobbyist or an agent of a foreign
principal) if acceptance is in conformance with regulations of the Senate Select
Committee on Ethics and (1) expenses are provided for attendance and participation
in a one-day event or (2) expenses are for an event, meeting or fact-finding trip
sponsored by a 501(c)(3) (charitable) organization when the organization has been
pre-approved by the Senate Select Committee on Ethics. On a case-by-case basis,
the Ethics Committee may permit a two-night stay when practically required to
participate in a one-day event.
Disclosure. The disclosures that are required when a Member or staffer
accepts travel expenses from a private source for “officially connected” travel are
required to be made within 30 days after the travel is completed, and would have to
also provide a description of the meetings and events attended.
Lobbyist Participation. In addition to prohibiting acceptance of expenses
from lobbyists, foreign agents, or their private clients, the Rule also would prohibit
the acceptance of such travel expenses from anyone if the trip was “planned,
organized, or arranged by or at the request of a registered lobbyist or agent of a
foreign principal,” or for trips on which a lobbyist accompanies the Member or
staffer on any segment of the trip.
Certification to and Approval by Ethics Committee. Before accepting
expenses for any trip, a Member or staffer must provide to the Ethics Committee a
written certification from the sponsor of the trip that the trip will not be financed in
any part by a registered lobbyist or a foreign agent; that the source of such expenses
either does not retain a lobbyist or foreign agent (and is not itself a registered lobbyist
or foreign agent), or meets one of the exceptions provided by the Select Committee
on Ethics; that the source of the funding will not accept from another source funds
earmarked for the purposes of financing such a trip; and that the trip will not be
planned, organized, requested, or arranged by a registered lobbyist or foreign agent
and that the traveler will not be accompanied by such registered lobbyist or foreign
agent. Any Member or staffer before accepting travel expenses must obtain the prior
approval of the Senate Select Committee on Ethics.
Public Availability. All the documents required to be filed and certified, and
all of the disclosures made would be available for public inspection by the Secretary
of the Senate as soon as possible after receipt.
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Ethics Committee Guidelines on “Reasonable” Expenses. Under
current Senate Rules Members and staff, when they are allowed to accept
reimbursement or payment of expenses for travel, are allowed to accept only such
“necessary” expenses which are “reasonable” expenses for travel, “transportation,
lodging, conference fees and materials, and food and refreshments....” (Current
Senate Rule XXXV, clause 2(d)). No specific guidance is given concerning
allowable costs that might be considered within the “reasonable” standard. Under
S. 1, the Select Committee on Ethics is instructed to develop guidelines concerning
the connection between a trip and official duties, reasonableness of an amount spent
by a sponsor, the relationship between an event and an “officially connected”
purpose, and the relationship between the source of funding and an event. In
developing these guidelines the Committee is instructed to take into consideration the
“maximum per diem rates for official Government travel published annually by the
General Services Administration, the Department of State, and the Department of
Defense.”
Travel on Private Aircraft.
“Officially Connected” Travel Expenses. Section 109(a) of S. 1 would
provide that it is not a “reasonable expense,” and thus is prohibited for a Member or
staffer who is accepting reasonable travel expenses for “officially connected” travel,
to travel on an aircraft not licensed by the FAA for commercial air travel.
Reporting of Travel on Private Aircraft. Members or staff who travel on
private, as opposed to commercial, carriers or aircraft for hire must file a detailed
report within 60 days after the date of the flight to include information on the date of
the flight, the destination, the owner or lessee of the aircraft, the purpose of the travel,
the persons on the flight, and the charter rate paid for the flight.
Reimbursement for Travel on Private Aircraft. The Senate gift rule
(Senate Rule XXXV) would be amended in Section 109(b) of S. 1 to require the
reimbursement at fair market value for travel on most private, noncommercial
aircraft, with the fair market value being the pro rata share of the value of the normal
and usual charter fare or rental charge for similar travel on a similar aircraft. The
Senate Rule on unofficial office accounts (Senate Rule XXXVIII) is also amended
to require the same rate of reimbursement for official use of private, noncommercial
aircraft.
Candidate Travel. The Federal Election Campaign Act would be amended
by S. 1, Section 109(b)(3), by providing that a campaign “contribution” will not
include the value of a federal candidate’s travel on a private, noncommercial aircraft
only if the candidate, the candidate’s authorized committee, or another political
committee reimburses within seven days the owner or lessee of the aircraft the
“normal and usual charter fare or rental charge” for a comparable plane and flight,
and files a detailed report and disclosure concerning such travel. Previously, under
Federal Election Commission regulations candidates needed to reimburse the charter
or rental rate only for flights on private, noncommercial aircraft to cities that were not
served by regularly scheduled airlines, but could reimburse at the first class rate to
destinations so served (11 C.F.R. § 114.9(e)).
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Review of Senate Travel Allowances. The appropriate committees in the
Senate are directed under S. 1, Section 109(b)(4), to study and recommend needed
changes and adjustments to statutes, appropriations measures, and to the Senator’s
Official Personnel and Office Expense Account, in light of the new provisions and
restrictions on air travel.
Effective Date. The new restrictions on the acceptance of expenses for
“officially connected” travel by Senators and Senate staff, and the restrictions on air
travel on private aircraft, would take effect 60 days after the enactment of the law
containing these provisions. (S. 1, Section 109(c)).
Congressional Travel Website
Section 406 of S. 1 would require the Secretary of the Senate and the Clerk of
the House to establish a publicly available, searchable website to contain all of the
information on “officially connected” congressional travel expenses subject to the
disclosure requirements under the gifts rules of the House and Senate.
Official Contact by Senate Office with Lobbyist
Family Member
Section 113 of S. 1 would amend Senate Rules regarding conflicts of interest
(Rule XXXVII) to require a Member to prohibit his or her staff from having official
contact with any members of that Senator’s immediate family who are registered
lobbyists or who are employed by a lobbyist to influence legislation (Section 113(a),
except that such prohibition will not apply to a spouse of a Senator who was already
serving as a registered lobbyist at least one year prior to the election of the Member,
or one year prior to their marriage. (Section 113(c)). All Senators and employees of
a Senate office, including personal, committee or leadership offices, would also
appear to be prohibited from having official contact with a spouse of any Senator if
that spouse is a registered lobbyist or is retained by a registered lobbyist. (S. 1,
Section 113(b)).
Influencing Private Hiring Decisions
Section 114 of S. 1 would amend Senate Rules (Senate Rule XLIII) to prohibit
a Senator from taking or withholding, or threatening or promising to take or
withhold, any official act, or to influence or to offer to influence an official act of
another, with the intent to influence on the basis of partisan political affiliation an
employment decision or employment practice of any private entity.
Ethics Violations for Certain Earmarks
Section 404 would add a provision to the Senate Rule on conflicts of interest
(Senate Rule XXXVII) to make it an ethics violation for a Member to use his or her
official position to “request, or otherwise aid in the progress or passage of a
congressional earmark” that benefits the financial or pecuniary interests of the
Member, the Member’s spouse, the Member’s immediate family, any employee of
the Member, or spouse or family member of such employee. An earmark would
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include not only a defined spending item, but also a targeted tax deduction,
exclusion, or preference for 10 or fewer beneficiaries. (See “Earmarks” section in
this report).
Mandatory Ethics Training for Senators and Staff
New Senators and new staff would be required by this legislation to complete
an ethics training program from the Senate Select Committee on Ethics within 60
days after commencing service. Existing Members and staff serving on the date of
the enactment of this Act must complete the program not later than 120 days after the
enactment of this Act. (Section 232).
Annual Ethics Committee Reports
The legislation would require both the House Committee on Standards of
Official Conduct and the Senate Select Committee on Ethics to issue an annual report
not later than January 31 of each year concerning the number of alleged violations
of congressional rules received from third parties, Members, or staff or from inquiries
raised by committee staff; the number of violations dismissed for lack of subject
matter jurisdiction or for failure to provide sufficient facts as to any material
violation; the number of complaints for which the staff conducted a preliminary
investigation; the number of complaints presented by staff to the committee with
recommendations that the complaint be dismissed; the number of complaints
presented by staff to the committee with recommendations that the investigation
proceed; the number of ongoing inquiries; the number of complaints dismissed for
lack of substantial merit; the number of private letters of admonition issued; and the
number of matters resulting in disciplinary sanctions.
Financial Disclosure Penalties
Section 401 would provide additional penalties for knowing and willful failure
to file, or knowing and willful falsification of, financial disclosure reports required
to be publicly filed annually by Members of Congress and certain other federal
government officers and employees under the provisions of the Ethics in Government
Act of 1978. The civil fine would be increased from $10,000 to $50,000, and an
additional criminal penalty (in addition to the current coverage of 18 U.S.C. § 1001
[$250,000 fine and up to five years’ imprisonment]) of a misdemeanor, that is,
imprisonment of up to one year, is expressly provided.
Federal Conflict of Interest Law or Senate Rules
Concerning Post-Employment, “Revolving Door”
Activities
Negotiating Prospective Private Employment
Section 112 of S. 1 would amend Senate Rules to prohibit Senators from
negotiating or having an arrangement concerning prospective private employment
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until the Senator’s successor has been elected, unless the Senator, within three days
after “negotiations” begin, files a publicly disclosed signed statement with the
Secretary of the Senate revealing the names of the private parties or private entities
involved, and the date such negotiations or arrangements commenced. If the job is
to involve “lobbying activities,” the Senator may not negotiate or have an
arrangement for such employment until after his or her successor is elected.
Senior staff (those compensated at a rate of 75% of a Senator) would be required
to notify the Select Committee on Ethics within three days about the commencement
of negotiations or arrangements for prospective private employment. Such an
employee is then required to recuse himself or herself concerning any official matter
that would create a conflict or an appearance of a conflict of interest because of such
negotiations or arrangements, and to notify the Ethics Committee.
Floor and Other Privileges of Former Members
Section 106 of S. 1 would change Senate Rules (Rule XXIII) to restrict the floor
privileges, and the privileges to use the Senate or House gymnasium or exercise
facilities or the Member-only parking spaces, of former Senators, Senate officers, and
Speakers of the House, if such persons are registered lobbyists, agents of a foreign
principal, or are in the employ of or represent any outside party for the purposes of
influencing the passage, defeat or amendment of any legislative proposal.
“Revolving Door,” Post-Employment Lobbying: Senate Rule
Section 111 of S. 1 would amend Senate Rule XXXVII concerning post-
employment lobbying by former Senate staffers by providing an additional restriction
for “senior” staff, those employed at least 60 days and who earn a salary at a rate of
75% of a Member’s salary, who become registered lobbyists or are employed by
registered lobbyists to influence legislation, barring such former employees from
lobbying Member, officer or employee of the Senate for one year.
“Revolving Door,” Post-Employment Lobbying: Criminal Law
Section 241 of S. 1 would amend federal criminal law on post-employment
conflicts of interest, commonly called the “revolving door” laws, to expand from one
year to two years the so-called “cooling off” period on Members of Congress,
whereby they would not be able to “lobby” Congress for two years after leaving
office2; to expand the one-year cooling off period to two years for “very senior”
executive branch officials (cabinet officers and certain others)3; and to expand the
one-year cooling off restriction for “senior” congressional staff (paid at the rate of
75% of a Member’s salary) to prohibit lobbying the entire House of Congress in
2 Currently 18 U.S.C. § 207(e)(1), to be amended by S. 1, Sec. 241(b)(1).
3 Currently 18 U.S.C. § 207(d)(1)(C), to be amended by S. 1, Sec. 241(a).
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which they had worked (i.e., the entire House or the entire Senate), rather than merely
the office or committee in which they had worked, as currently provided.4
The new provisions in S. 1 would also significantly expand the activities of
former Members, and of former elected congressional officers, for which criminal
penalties may be applied in the two-year “cooling off” period, by adding a new
restriction to include any behind-the-scenes activities, advice, or consultations that
the former Member or officer may have that are “in support of ... lobbying contacts”
made on behalf of a client, “including preparation and planning activities, research
and other background work that is intended, at the time it is performed, for use in
contacts, and the coordination of the lobbying activities of others.”5
The effective date of this provision under S. 1 would be 60 days after the
enactment of the law.6 Because the law applies to one who “is a Member of
Congress,” or “is an employee of a House of Congress ...,” the new restrictions would
not apply to one who has already left employment or office before the effective date
of the new law. Members or staff who are no longer Members or staff at the time of
the effective date of the new law (those who have resigned or retired before the
effective date of the new law) would be covered by the provisions of the statute as
it applied when they were Members or staff, that is, the current restrictions and
cooling off periods.
“Revolving Door,” Post-Employment Lobbying for
Indian Tribes
Section 110(a) of S. 1 would amend current provisions of the “revolving door”
law, 18 U.S.C. § 207, to treat federal employees now employed by Indian Tribes to
perform federal services which have been contracted out to tribes under the
provisions of the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450i), in a similar manner as officers and employees of the federal government or the
District of Columbia, or elected officials of state or local governments; that is, such
persons are generally exempt from the restrictions on communications to and
appearances before federal agencies on behalf of such tribes. The bill further
provides at Section 110(b) that any former federal government official covered by the
post-employment, revolving door restrictions in 18 U.S.C. § 207 will be exempt from
the restrictions only when they are carrying out official duties for Indian Tribes as
elected or appointed officials of the tribe.
4 Currently 18 U.S.C. § 207(e)(2)-(5), (6), to be amended by S. 1, Sec. 241(b)(2).
5 S. 1, Section 241(b)(3) and (c)(4), adding two-year post-employment prohibition on
“lobbing activities” (proposed 18 U.S.C. § 207(e)(3)), and defining the term “lobbying
activities” to mean those “lobbying activities” for which disclosure is required under the
Lobbying Disclosure Act of 1995, see definition of “lobbying activities” at 2U.S.C. §
1602(7)).
6 S. 1, Section 241(d).
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Lobbying Disclosure and Accountability
The Lobbying and Disclosure Act of 1995 (LDA), as amended,7 requires any
lobbyist, whether an individual or firm, whose lobbying expenses exceed certain
thresholds to register with the Secretary of the Senate and the Clerk of the House of
Representatives within 45 days after the lobbyist first makes a direct lobbying contact
with covered officials in the legislative and executive branches of the federal
government on behalf of a client.8 The law requires lobbyists to file with the Clerk
and the Secretary semiannual reports of their activities. These reports identify the
name of the registrant, lobbyists the registrant employs, client, and the broad issue
areas in which lobbying was carried out.9
Title II of S. 1, entitled the Lobbying Transparency and Accountability Act of
2007, would amend several provisions of LDA. Those amendments include
! quarterly, instead of semiannual, filing of lobbying disclosure
reports;
! corresponding reduction of the income threshold that requires a
lobbying firm or lobbyist to register under LDA to $2,500, to reflect
quarterly filing;
! reduction of the increments in which lobbying expenditures may be
estimated in larger increments, from $20,000 to $10,000;
! reduction of the contribution threshold for reporting of any firm or
entity other than the client who contributes to the lobbying activities
to $5,000;
7 P.L. 104-65, Lobbying Disclosure Act of 1995 (109 Stat. 691, 2 U.S.C. 1601), as amended
by P.L. 105-166, Lobbying Disclosure Technical Amendments Act of 1998 (112 Stat. 38,
2 U.S.C. 1601 note).
8 Legislative branch officials covered under LDA include Members of Congress; elected
officers of either chamber; any employee of a Member, committee, leader or working group
organized to provide assistance to Members; and any other legislative branch employee
serving in a position that is compensated at a rate of 120% of the basic pay for GS 15 of the
General Schedule.
Executive branch covered officials include the President; the Vice President; any
officer or employee in the Executive Office of the President; any officer or employee
serving in a position compensated through the Executive Schedule; any member of the
uniformed military services whose pay grade is at or above O-7 under 37 U.S.C. 201 (In the
United States Army, Air Force, and Marine Corps, this is a brigadier general. In the United
States Navy and Coast Guard the equivalent rank is rear admiral.); and any officer or
employee serving in a position of a confidential, policy-determining, policy-making, or
policy-advocating character that the Office of Personnel Management has excepted from the
competitive service under 5 U.S.C. 7511(b)(2)(b).
9 Further discussion of LDA provisions is available in CRS Report RL33798, Lobbying
Disclosure: Themes and Issues, 110th Congress, by R. Eric Petersen.
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! requirements that registrants disclose contributions to federal
candidates, party committees, and leadership PACs10 for whom they
sponsored fund-raisers, made contributions to, and collected
contributions or otherwise arranged for contributions to be made
(i.e., “bundling”),11 as well as contributions to congressional gifts or
presidential libraries;
! requirements that clients who are states or municipal entities be
identified;
! establishment and maintenance by the Clerk of the House and
Secretary of the Senate of lobbying disclosure information in a
searchable, sortable electronic database that links LDA information
to the Federal Election Commission database, made available to the
public free of charge through the Internet, with those reports to be
available within 48 hours of filing LDA forms;
! disclosure by registered lobbyists in their registration statements of
all past executive branch and congressional employment;
! increase the civil penalty for failure to comply with lobbying
disclosure requirements up to $200,000. The measure would also
establish criminal penalties for knowing and willful violations, and
corrupt violations, of LDA provisions, of not more than 10 years
imprisonment;
! identification of entities that participate in a substantial way in the
planning, supervision, or control of lobbying activities conducted by
or on behalf of certain associations or coalitions, subject to
provisions limiting the disclosure of individual members and
contributors;
! requirements that the Secretary of the Senate make publicly
available the number of lobbying firms and lobbyists referred to the
United States Attorney for the District of Columbia for
noncompliance with LDA;
! requirements that the United States Attorney for the District of
Columbia report semiannually to the Senate Committees on
Homeland Security and Governmental Affairs, and the Judiciary,
and the House Committees on Government Reform,12 and the
10 Section 212 of S. 1 defines leadership PAC as “an unauthorized political committee which
is associated with an individual holding federal office, except that such term shall not apply
in the case of a political committee of a political party.”
11 For further analysis of issues related to campaign financing, see CRS Report RL33580,
Campaign Finance: An Overview, by Joseph E. Cantor.
12 At the beginning of the 110th Congress, the committee was renamed Committee on
(continued...)
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Judiciary the aggregate number of enforcement actions taken under
LDA, and any fines imposed;
! requirements that LDA registrations and reports be filed in electronic
form and any other form required by the Secretary and the Clerk; and
! prohibitions preventing registered lobbyists from providing gifts or
travel to members of Congress and congressional staff if the lobbyist
is aware that such gifts may not be accepted by the recipient under
congressional rules.
In addition to those provisions, Title II of S. 1 would require the Comptroller
General to audit LDA registrations and reports to determine the extent of compliance
or noncompliance with the act, and to report annually to Congress his assessment,
and any recommendation regarding the resources and authorities needed for effective
administration of LDA.
Study Commission on Congressional Ethics
Title II of S. 1, in subtitle E, provides for the establishment of a commission to
strengthen confidence in Congress. The measure would create a 10-member,
bipartisan commission with the chair and vice-chair appointed jointly by the minority
and majority leaders of the House and Senate. Two members would be appointed by
senior Members of the leadership of the two parties in each chamber, with one of the
two appointees each senior leader appoints to be a former Member of the chamber.
The commission would be authorized to hold hearings, gather evidence, and obtain
information, and charged to study and submit a report to Congress with its findings,
conclusions, and recommendations on current congressional ethics requirements and
enforcement.
Congressional Pension Forfeiture
Sections 301-304 of S. 1 would add to the current list of offenses for which a
federal official might lose his or her pension under the current provisions of the so-
called “Hiss Act” (5 U.S.C. §§ 8311-8322),13 certain specific crimes “committed by
a Member of Congress” (Section 302(b)). The additional crimes committed by a
Member of Congress that would result in forfeiture of federal annuities would be the
conviction of any offense in the purview of 18 U.S.C. § 201, relating to bribery and
illegal gratuities; violations of 18 U.S.C. § 371, conspiracy, when the conspiracy
involves the commission of an act within the purview of the bribery law; or perjury
12 (...continued)
Oversight and Government Reform.
13 For a general discussion of current pension forfeiture provisions, see CRS Report 96-530,
Loss of Federal Pensions for Members of Congress Convicted of Certain Offenses, by Jack
Maskell.
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or subornation of perjury when it relates to denying the commission of an offense
violative of the bribery statute, or of the conspiracy statute concerning a conspiracy
to violate the bribery law. Under the Senate bill the effective date of this restriction
would be delayed until January 1, 2009, and would apply, of course, only to
convictions for acts committed after the effective date of the new law.
Senate Procedures and Transparency
Out-of-Scope Matters in Conference Reports
Section 102 of S. 1 would permit a point of order to be raised against individual
items contained in conference reports if the section or provision “includes or consists
of any matter not committed to the conferees by either House.” Section 102 then
provides a definition of matters “not committed to the conferees by either House,”
which appears primarily directed at levels of funding for accounts, programs,
projects, or activities. The definition, however, uses the construction “shall include,”
which arguably can be interpreted to mean that the list following the phrase are
merely examples and, therefore, are not to be considered an exhaustive list of items
that may be subject to the point of order. Hence, it is arguable that items such as
specific tax or tariff waivers if “not committed to the conferees by either House”
would also be subject to the potential point of order.
Senate Rule XXVIII(2) already permits a point of order to be raised against
conference reports that contain matters “not committed to the conferees by either
House.” Section 102(a)(2) of S. 1 would merely require the Senate to apply the same
definition discussed above to interpretations of Rule XXVIII. The current Senate
rule appears to require that if a point of order is raised and sustained, then the entire
conference report is rejected and recommitted to the conference committee. Section
102 of S. 1 would appear to change Rule XXVIII to permit points of order to be
raised against individual items in conference reports, rather than against the report
in its entirety. Under the provision in S. 1, if a point of order is raised and sustained
than the matter shall be stricken from the report. The Senate would then have the
option of debating — after all other points of order have been raised and voted upon,
and without further amendments being in order — whether to recede from its
agreement with the House or concur with a further amendment. The further
amendment would reflect any provisions that have been stricken pursuant to the point
of order, and any amount appropriated adjusted as necessary. In addition, section 102
can only be waived by a three-fifths vote of the Members of the Senate. Finally, a
three-fifths vote is required to sustain an appeal to the Chair on a point of order raised
under this section.
Earmarks
Section 103 of S. 1, entitled “Congressional Earmark Reform,” would establish
a new Senate Standing Rule, “Rule XLIV, Earmarks,” which would generally require
greater transparency of earmarks.
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Section 103 would prohibit Senate consideration of a bill, joint resolution, or
conference report; unless the names of congressional sponsors of certain earmarks14
associated with the measure are available to the public on the Internet 48 hours prior
to Senate consideration of the legislation. More specifically, it would prohibit
consideration of the legislation, unless (1) a list of earmarks included in the above
legislation or accompanying report language15 and the name of any Senator who
submitted a request for an item on the list is available on the Internet, or (2) a
statement that there are no earmarks in the applicable documents is available.16 In
the case of conference reports, the list must also include the name of any
Representative (or Delegate or Resident Commissioner) who requested an earmark
on the list. A complete list of earmarks would not be required. This section would
not apply to amendments, including committee substitute amendments proposed on
the floor or amendments between the Senate and House.
The new point of order would apply only to a motion to proceed to consider a
measure. Under existing Senate practices, the Senate may agree to consider
legislation either by (1) unanimous consent (that is, no Senator objects to a
unanimous consent request to consider it), or (2) by a motion to proceed to consider
the legislation, which requires a majority vote to adopt. If objection is expected to
a unanimous consent request, the Senate may agree to consider the legislation by
adopting a motion to proceed, subject to the new point of order and any other
applicable points of order.
There would be no motion to waive the application of the point of order as is the
case with points of order under the Congressional Budget Act;17 however, the Senate
could, on appeal, overrule the chair’s ruling on this new point order or adopt a
motion to suspend the rules. A majority vote is required to overrule the chair’s
ruling, such action would, however, affect the subsequent applicability of the new
point of order. A two-thirds vote is required to adopt a motion to suspend the rules,
and, in order to propose such a motion, the sponsor must notify the Senate in writing
at least one-day prior to consideration of the motion.
Section 103 would also require public disclosure of congressional sponsors of
certain classified earmarks. Congress provides spending for certain foreign and
national intelligence activities in classified portions of the annual defense regular
appropriations legislation and accompanying report language. Section 103 would
prohibit consideration of a bill, resolution, or conference report that includes an
earmark in the classified portion of the accompanying report, unless the legislation
14 Section 103 also defines the earmarks that would be affected, see below.
15 Report language refers to reports accompanying committee-reported measures and joint
explanatory statements attached to conference reports.
16 In the case of committee-reported measures, S. 1 provides that this statement must be
included in the accompanying committee report; for non-committee measures, the statement
must be included in the Congressional Record; and for conference reports, the statement
must be included in the accompanying joint explanatory statement.
17 For information on Congressional Budget Act waiver motions, see CRS Report 97-865,
Points of Order in the Congressional Budget Process, by James V. Saturno.
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includes, in unclassified language, a general program description, funding level, and
congressional sponsor of that earmark. It is important to note that the section would
also provide that such earmark information shall be available to the greatest extent
practicable, consistent with the need to protect national security (including
intelligence sources and methods).
Additional information on each earmark would also be required from
congressional earmark sponsors. This information on some or, possibly, all earmarks
would be made public. A Member who requests an earmark in legislation or report
language would be required to submit in writing to both the chair and ranking
member of the committee of jurisdiction the following:
! The Member’s name.
! In the case of a spending earmark, the name and address of the
intended recipient or, if there is no specifically intended recipient,
the intended location of the activity.
! In the case of a limited tax or tariff benefit,18 identification of the
individual or entities reasonably anticipated to benefit, to the extent
known to the Member.
! The purpose of the earmark.
! A certification that the Member or spouse has no financial interest
in such earmark.
Each committee would be required to maintain this information.
The written statement on any earmark included in a committee-reported bill or
conference report, shall be published, in searchable form, on the applicable
committee’s or subcommittee’s website not later than 48 hours after the information
is received. This requirement would not apply to non-committee-reported bills.
Section 103 would apply to earmarks, as defined by this section. Three types
of earmarks would be affected: spending earmarks (referred to as “congressional
earmark” in sec. 103), limited tax benefits, and limited tariff benefits. A spending
earmark would refer to a provision or report language providing, authorizing, or
recommending a specific funding level for specified activities with or to an entity
(such as a federal department or agency, a local government, or local museum) or
targeted to a specific state, locality, or congressional district. The definition would
include the earmarks described above that are not selected through a statutory or
administrative formula-driven or competitive award process. A specified activity is
a contract, loan, loan guarantee, grant, loan authority, or other expenditure. Under
the definition, the earmark must have been included primarily at the request of a
Representative, Delegate, Resident Commissioner, or Senator.
18 Section 103 applies to three types of earmarks as defined by this section: spending
earmarks, limited tax benefits, and limited tariff benefits.
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A limited tax benefit refers to two types of tax provisions. First, a limited tax
benefit would be (1) a revenue provision that provides a tax deduction, credit,
exclusion, or preference to a particular beneficiary or limited group of beneficiaries
under the tax code and (2) contains eligibility criteria that do not uniformly apply to
potential beneficiaries of the provisions. Second, a limited tax benefit would be a tax
provision that provides one beneficiary with transitional relief from a change to the
tax code.
A limited tariff benefit is defined as a provision to reduce or temporarily
suspend duties on certain imports (referred to as a duty suspension) in a manner that
would benefit 10 or fewer entities. Duty suspensions are, generally, provided for
chemicals or components used in manufacturing.
Section 103 would provide that a Member may not condition the inclusion of
an earmark in a provision or report language on any vote cast by another Member,
Delegate, or Resident Commissioner.
Section 404 of S. 1 would add a new Paragraph to Senate Standing Rule
XXXVII, Conflicts of Interest, to prohibit any Member from using his official
position to introduce, request, or otherwise aid the progress or passage of a
“congressional earmark” that would financially benefit, or otherwise further the
pecuniary interest, of (1) the Member, (2) the Member’s spouse or other immediate
family member, (3) an employee on the staff of such Member, or (4) the spouse or
other immediate family member of the staffer. This requirement would apply to staff
in the Member’s personal, committee, or leadership offices. The term “congressional
earmark” would include spending earmarks, limited tax benefits, and limited tariff
benefits.19 The definitions of “spending earmark” and “limited tariff earmark” are
identical to those provided under section 103 (see above). The definition of “limited
tax earmark,” however, is different. Under this section, “limited tax benefit” would
cover two types of tax provisions. First, a limited tax benefit would be a
revenue-losing provision that (1) provides a tax deduction, credit, exclusion or
preference to no more than 10 beneficiaries under the tax code and (2) contains
eligibility criteria that does not uniformly apply to potential beneficiaries of the
provision. Second, a tax provision that provides one beneficiary with transitional
relief from a change to the tax code would also be a limited tax benefit. Section 404
also defines other “immediate family member.”
Availability of Conference Reports on the Internet
Section 104 of S. 1 amends Senate Rule XXVIII by adding a requirement that
conference reports shall not be considered in order unless the report has been
provided to all Members and made available via the Internet at least 48 hours prior
to consideration. In addition, the section would also include a requirement that the
text of the report not be changed after the signature sheets have been signed by a
majority of the Senate conferees. Currently, under Rule XXVIII, conference reports
are always in order when available on each Senator’s desk except during reading of
the Journal, when questions of order or motions to adjourn are pending, or when
19 Under section 103, by contrast, “congressional earmark” refers only to spending earmarks.
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voting or ascertaining the presence of a quorum. Hence, Section 104 would add
further conditions on the procedures under which conference reports may be
considered in order for consideration. Section 104 can only be waived by a three-
fifths vote of the Members of the Senate and a three-fifths vote is required to sustain
an appeal to the Chair on a point of order raised under this section. Finally, section
104 instructs the Secretary of the Senate, in consultation with the Clerk of the House
of Representatives and the Government Printing Office, to develop a website within
60 days that is capable of meeting the above described requirements.
Sense of the Senate on Conference Committee Protocols
Section 105 of S. 1 contains a Sense of the Senate Resolution regarding
conference committee protocols. The resolution contains three suggested
requirements for all conference committees. Namely, that each conference
committee (1) hold regular, formal meetings that are open to the public; (2) provide
adequate notice to all Members of the time and place of meetings; and (3) afford all
Members an opportunity to fully participate in the committee’s debates.
Amounts of COLA Adjustments Not Paid to Certain Members
of Congress
Section 116 of S. 1 would prohibit any Member from receiving their annual
cost-of-living adjustment (COLA) if the Member voted in favor of an amendment (or
against the tabling of any amendment) providing that the COLA not be granted.
Section 116 also provides that in the event that there are Members who are not
entitled to receive a COLA, the money that would have been paid to the Member
shall be transmitted to the Department of the Treasury for deposit in the
appropriations account under the subheading “Medical Services” under the heading
“Veterans Health Administration.” In addition, section 116 provides that, for the
purposes of calculating a Member’s benefits, such as retirement or health insurance,
the salary figure used shall be what the Member would have received had they not
voted against the COLA amendment. In other words, the COLA, although not
actually received by the Member, would still be factored into any calculations
regarding that Member’s benefits. Section 116 has an effective date of February 1,
2008.
Requirement of Notice of Intent To Proceed
Section 117 appears to deal with the Senate’s use of so-called “anonymous
holds” by requiring that the majority and minority leadership recognize only those
notices to object to proceedings that meet the following criteria: (1) the notice is
submitted in writing to the appropriate Leader or designee and (2) if within three days
the Senator submits for inclusion in the appropriate section of the Congressional
Record a notice as described by the section. The section would direct the Secretary
of the Senate to establish on the appropriate calendars a separate section titled
“Notices of Intent to Object to Proceeding,” which is to include name of each Senator
filing a notice to object, the measure or matter covered by the calendar that the
Senator objects to, and the date the objection was filed. Senators may remove their
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objections by submitting a notice for inclusion in the Congressional Record as
provided by section 117(c).
CBO Scoring Requirement
Committee reports generally are required to contain estimates of the budgetary
impact (or cost estimates) of the reported legislation (Senate Rule XXVI, clause 11).
Conference reports, in contrast, are required to include only a joint explanatory
statement “sufficiently detailed and explicit to inform the Senate as to the effect”
which the conference report will have upon the matters committed to conference
(Senate Rule XXVIII, clause 4). In addition, Section 308(a)(2) of the Congressional
Budget Act requires the joint explanatory statement accompanying a conference
report contain a CBO cost estimate, “if available on a timely basis,” or made
available to Members “as soon as practicable prior to the consideration” of the
conference report.
Section 118 of S. 1 would prohibit in the Senate the consideration of a
conference report unless an official written cost estimate or table by the
Congressional Budget Office is available at the time of consideration. As with many
other budget-related points of order, this free-standing rule may be waived, and an
appeal on a ruling of the Chair under this rule may be sustained, by an affirmative
vote of three-fifths of the Senators, duly chosen and sworn (i.e., 60 Senators if there
are no vacancies).
Public Availability of Senate Committee and
Subcommittee Meetings
Senate Rule XXVI(5)(e) currently only requires that committees and
subcommittees create an “adequate” written or electronic transcript of their
proceedings. Section 402 of S. 1 would amend Senate Rule XXVI(5)(e) by adding
a requirement that, within 14 days of a committee or subcommittee meeting, the
proceedings be made publicly available through the Internet, video recording, audio
recording, or written transcript. The amendment applies to all meetings by
committees or subcommittees, except for those meetings that are closed pursuant to
Rule XXVI. (Section 402 has an effective date of October 1, 2007).
Amendments and Motions To Recommit
Section 405 would replace paragraph 1 of Senate Rule XV, which currently
requires that all motions and amendments be reduced to writing, only “if desired” by
the Presiding Officer or any Senator, and be read prior to being debated. Section 405
would replace this language with a requirement that any amendment or instruction
carrying a motion to recommit be reduced to writing, read, and have identical copies
be provided to the desks of the Majority and Minority Leaders, before being debated.
With respect to motions, section 405 retains the existing Senate Rule language that
they be reduced to writing — only “if desired by the Presiding Officer or any
Senator” — and read prior to being debated.