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 rulemaking 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 socalled “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 postemployment 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...)

CRS-11

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 socalled “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.

CRS-12

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.

CRS-13

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.

CRS-14

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.

CRS-15

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.

CRS-16

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 threefifths 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

CRS-17

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.