Important Guidance From Senate Office of Public Records Regarding Speaking Appearances by Congress Members, Staff, and Officials

19 June 2008 Publication
Authors: Cleta Mitchell

Legal News Alert: Public Affairs

On May 29, 2008, the Senate Office of Public Records issued its Guidance regarding the LD-203 Report, which is the semi-annual report due to be filed on July 30, 2008 by all lobbyists and all entities that employ registered lobbyists. The Guidance explains the types of events related to Congress members, Capitol Hill staff members, and executive branch officials whose costs must be captured and reported on the LD-203. The Guidance provides the following example of an event for which disclosure is required:

Example 3: Registrant “R” sponsors an event. Senator “Y” is listed on the invitation as an attendee. Representative “T” is listed on the invitation as a speaker. “R” would disclose the date, amount, recipient(s)of funds, and “Y” and “T” as being recognized.

Foley has had several conversations this week with the Senate Office of Public Records to seek clarification of this example; specifically, whether any event hosted, organized, or supported by a “registrant” where a Congress member or Capitol Hill staff member is a speaker constitutes a reportable expense.

Foley has been advised that yes, such an event of any size, duration, or type involving a Congress member, Capitol Hill staff member, and/or a covered executive branch official is deemed the equivalent of “honoring” or “recognizing” that individual,1 and the costs and expenses of the event allocable to each covered official must be captured and reported on the registrant’s LD-203.

Each day, events occur in Washington, D.C. and around the country that are covered by this provision of the new law. The obligation for tracking and reporting expenses for such events may not be readily apparent, but they must be captured for reporting purposes on the LD-203.

Some examples of reportable expenses associated with speaking appearances by Congress members, Capitol Hill staff members, and executive branch officials:

  • An association’s annual legislative conference in Washington, D.C. features Congress members or Capitol Hill staff members as speakers or panelists. In addition to making certain that the participation by these “covered officials” complies with the ethics rules, registrants must also capture and report the expense of their participation on the LD-203.
  • The costs of a press conference organized and paid for by an association, corporation, or lobbying firm that features Congress members speaking is a reportable expense on the LD-203.
  • The costs of a breakfast on Capitol Hill where Congress members come by to greetconstituents and are recognized to speak for a few minutes are reportable on the association’s LD-203.
  • The costs of a ticket purchased by a lobbyist to attend an event (other than a campaign fundraiser) where a Congress member, Capitol Hill staff member, or executive branch official is a speaker or presenter is reportable on the lobbyist’s LD-203. If the lobbyist is reimbursed for the ticket, the cost is NOT reported by the lobbyist, but is reported by the reimbursing entity (if the entity files its own LD- 203).
  • A grassroots citizens group registered to lobby hosts candidates for a federal office at a debate. One or more of the candidates are sitting members of Congress. Because this is not a reportable expense to the Federal Election Commission, the costs of the meeting or debate are reported by the organization on its LD-203.
  • An association or other registrant hosts a briefing event on Capitol Hill focused on a particular issue. Congress members or Capitol Hill staff members attend as speakers. The costs of the event must be captured and reported on the registrant’s LD-203.
  • A national association has its national convention in Las Vegas, Nevada and a number of U.S. senators and executive branch agency officials participate in panels and in speaking slots. The costs of the convention attributable to the participation of these legislative and executive branch officials are reportable.

Calculating the Reportable Costs of Events Featuring Congress Members, Staff, and Officials as Speakers
The type of event at which covered legislative and executive branch officials are speakers will determine the costs that must be captured and reported on the LD-203. A good-faith effort must be made to capture and report all costs attendant to such an event — allocated to each covered official’s participation.

Type of Event: Discrete, single events

Examples:

  • Breakfast
  • Lunch
  • Dinner
  • Press Conference
  • Banquet

Calculating Reportable Costs:

  • Direct costs of event
  • Allocation of staff time for event
  • Marketing costs for event
  • Any travel or approved payments for Congress member, staff, or official participation

Type of Event: Multi-part and multi-day events

Examples:

  • Two-day legislative conference in Washington, D.C.; member attends for 30-minute presentation
  • Citizens group hosts three-day convention; three members attend and speak; one senator speaks for one hour, another official speaks for 30 minutes; a congressman speaks at the dinner, which lasts three hours

Calculating Reportable Costs:

  • Calculate the total time of conference or meeting
  • Calculate the participation time of each Congress member, staff member, or official
  • Determine the percentage of time spent by each member or official to the total time of the conference, meeting, or event
  • Apply the percentage to the total costs of the event, conference, or meeting to determine the reportable costs for the LD-203 associated with each member separately
  • Add any additional costs associated with a particular official’s participation to the reportable costs on the LD-203 for that official

In addition to the more obvious types of events covered by the LD-203, it is important that every filer should now begin to consider its activities during this calendar year in which Congress members  or staff have been involved in speaking roles and that all costs, expenses, and payments associated with such events are calculated in preparation for inclusion on the LD-203.


1 As of this writing the House Clerk has not yet issued the LD-203 Form. The Senate Guidance to LD-203 reporting includes “honored or recognized” in the same paragraph. The statute separates the types of officials covered into two categories: “honored,” which includes both legislative and executive branch officials, and “recognized,” which includes only legislative branch officials. A safe approach until otherwise clarified is to treat legislative and executive branch officials speaking at events in the same manner.


Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our government and public affairs clients and colleagues. If you have any questions about this alert or would like to discuss this topic further, please contact your Foley attorney or the following individual:

Cleta Mitchell
Washington, D.C.
202.295.4081
cmitchell@foley.com

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