On September 15, the head of the Office of Government Ethics (OGE) said in an interview with Politico anonymous contributions to legal defense funds of federal employees are prohibited. David Apol, the acting director of the OGE, told Politico the policy had not changed, even though the note on a guidance document had been changed earlier this year.

In 1993, the OGE issued an opinion letter holding a fund established for the benefit of a government employee to pay the employee’s legal expenses, while administered by a person having no connection with the employee’s official duties, could accept anonymous contributions. The OGE guidance letter is not legally binding.

Walter Shaub, then director of the OGE, instructed his staff in May of this year to add a one-sentence note to the top of the document signaling the OGE’s long standing internal practice had diverged from the formal guidance, according to Politico. The note read in all caps and a red font, “NOTE: SOME STATEMENTS IN THIS OPINION ARE NOT CONSISTENT WITH CURRENT OGE INTERPRETATION AND PRACTICE.”

Subsequently, after Shaub left the OGE, the document’s note was changed to read, again in all caps and a red font, “NOTE: THE PRIMARY FINDING ABOUT THE LIMITED APPLICABILITY OF 18 U.S.C. §209 TO PAYMENTS MADE FOR AN EMPLOYEE’S LEGAL EXPENSES HAS NOT CHANGED. HOWEVER, BECAUSE EACH ANALYSIS IS VERY FACT-SPECIFIC, AGENCY ETHICS OFFICIALS SHOULD CONSULT WITH THEIR OGE DESK OFFICER BEFORE ADVISING EMPLOYEES ON THIS TOPIC.”

Critics of the note change had said this opens the door up to lobbyists and other prohibited sources funding legal defenses for employees currently working in the White House.

The Honest Leadership and Open Government Act (HLOGA) of 2007 was enacted 10 years ago. It is a law of the US federal government, which in part, amended parts of the Lobbying Disclosure Act (LDA) of 1995.

What did it do? For one, it strengthened the public disclosure requirements regarding lobbying activity and placed restrictions on gifts. The bill was signed into law by President George W. Bush on September 15, 2007.

In addition, it closed the revolving door for many people in the federal government from lobbying for a certain period of time; it increased the number of reports due a year—from twice a year to four times a year; it prohibited Members of Congress from attending parties held in their honor at national party conventions—if they were sponsored by lobbyists; requires candidates, other than those running for a seat in the House, pay the fair market value of airfare (charter rates) when using non-commercial jets to travel; requires candidates for the House to not use non-commercial aircraft; requires lobbyists to certify they have not given gifts or travel that would violate Senate or House rules; requires the disclosure of businesses or organizations contributing more than $5,000 and actively participating in lobbying activities by certain coalitions and associations; instituted a lot of prohibitions between spouses who are registered lobbyists unless they were registered at least one year prior to the most recent election of the spouse to office; and requires entertainment and sports tickets be valued at market rates.

There is definitely more to HLOGA which affected lobbyists, Members of Congress, Cabinet Secretaries, senior Senate staff, and senior House staff. It is the #1 reason State and Federal Communications strengthened its federal presence in DC by bringing on Rebecca South, formerly from Blank Rome, and Gamble Hayden, formerly from PhRMA and Boehringer Ingelheim. Our FedALERTS program is the key to capturing the information needed for 100% compliance on the federal level.

Will there be changes in the future? Probably…In the meantime, we are celebrating HLOGA today at State and Federal Communications.

A change of a note regarding an Office of Government Ethics (OGE) guidance document from 1993 may open the door to allowing anonymous contributions, including from prohibited sources such as lobbyists, to government employees’ legal defense funds. In 1993, the OGE issued an opinion letter holding a fund established for the benefit of a government employee to pay the employee’s legal expenses, while administered by a person having no connection with the employee’s official duties, could accept anonymous contributions. The OGE guidance letter is not legally binding.

Walter Shaub, then director of the OGE, instructed his staff in May of this year to add a one-sentence note to the top of the document signaling the OGE’s long standing internal practice had diverged from the formal guidance, according to Politico. The note read in all caps and a red font, “NOTE: SOME STATEMENTS IN THIS OPINION ARE NOT CONSISTENT WITH CURRENT OGE INTERPRETATION AND PRACTICE.”

Subsequently, after Shaub left the OGE, the document’s note was changed to read, again in all caps and a red font, “NOTE: THE PRIMARY FINDING ABOUT THE LIMITED APPLICABILITY OF 18 U.S.C. §209 TO PAYMENTS MADE FOR AN EMPLOYEE’S LEGAL EXPENSES HAS NOT CHANGED. HOWEVER, BECAUSE EACH ANALYSIS IS VERY FACT-SPECIFIC, AGENCY ETHICS OFFICIALS SHOULD CONSULT WITH THEIR OGE DESK OFFICER BEFORE ADVISING EMPLOYEES ON THIS TOPIC.”

Critics of the note change say this opens the door up to lobbyists and other prohibited sources funding legal defenses for employees currently working in the White House. Richard Lucas, once counsel for a Clinton legal defense fund, told Politico, “Not knowing the source is a recipe for disaster.”

On September 12, President Donald J. Trump nominated Trey Trainor to serve as a commissioner on the Federal Election Commission (FEC). Trainor is a lawyer licensed in Texas who specializes in election law, campaign finance, and ethics. Trainor previously served in the president’s administration as a Special Assistant to the Secretary of Defense, James Mattis, in the Department of Defense, Office of General Counsel.

Last week it was announced Commissioner Matthew Spencer Petersen would be stepping down after being nominated by the president to serve as a District Judge on the U.S. District Court for the District of Columbia.

With the appointment of Trainor, and with Petersen’s absence, there will be three registered members of the Republican Party, one registered member of the Democratic Party, and one Independent, Chairman Steven T. Walther. One seat still remains vacant. The FEC requires at least four commissioners to agree for any official action.

To become a commissioner, Trainor must now be confirmed by the U.S. Senate.

Several provisions added last week to the House Financial Services appropriations bill would alter some federal campaign laws.

The legislation would prevent some charitable 501(c)(3) organizations such as churches from losing their tax-exempt status for making contributions to candidates. The bill would also allow corporations greater latitude in soliciting employees to contribute to political action committees.

The riders to the bill also include provisions prohibiting the IRS from enacting rules governing political activity and prohibiting the SEC from implementing rules requiring corporations to report to its shareholders a corporation’s political campaign activities.

A further change to campaign finance law in the appropriation bill would bar the use of funds to recommend or require any entity submitting an offer for a federal contract to disclose specified political contributions as a condition of submitting the offer.

The appropriations and other finance bills are expected to be debated this and next week in the House.

On September 7, President Donald J. Trump nominated Matthew Spencer Petersen, a commissioner with the Federal Election Commission (FEC), to serve as a District Judge on the U.S. District Court for the District of Columbia. Petersen, a Republican, is one of the five remaining FEC commissioners.

Without Peterson, the FEC will have only four of the six required commissioners serving, all with expired terms. With Petersen’s absence from the FEC there will remain two registered members of the Republican Party, one registered member of the Democratic Party, and one Independent, Chairman Steven T. Walther.

The FEC requires at least four commissioners to agree for any official action. A replacement for Petersen will be selected by the president and then confirmed by the U.S. Senate. No more than three members of the FEC may be registered with the same political party.

On September 5, the Libertarian National Committee (LNC) filed a lawsuit arguing federal contribution limits of bequests are unconstitutional.

In Libertarian National Committee v. Federal Election Commission, filed in the U.S. District Court for the District of Columbia, the LNC argues federal political contribution limits applied to bequests, in the absence of any evidence of corruption, violate the First Amendment of the U.S. Constitution. The LNC also claims Congress cannot regulate “the content of a political party’s expression under the guise of combating corruption.”

In 2014, the LNC was bequeathed $235,575 by a party contributor when he died. The Federal Election Commission’s position is the money must be dispersed in the amount of $33,900 a year. The LNC is asking its proposed facts and questions be certified to the en banc D.C. Circuit.

On August 3, a federal campaign finance constitutional amendment with public financing authority was referred to the House Committee on the Judiciary’s Subcommittee on the Constitution and Civil Justice.

House Joint Resolution 113, introduced in the U.S. House of Representatives on July 20, 2017, proposes an amendment to the Constitution of the United States granting explicit authority to Congress and to the states to regulate contributions and expenditures in political campaigns and to enact public financing systems for such campaigns.

Rep. Adam Schiff introduced the legislation with the intent to increase regulation of campaign contributions and spending.

“The regulatory process is at a standstill as we watch billions of dark money pour into elections,” Schiff said in a press release.

On July 31, a bill was introduced in the U.S. Senate to strengthen the federal lobbying laws concerning the representation of foreign interests.

Senate Bill 1679, the Foreign Agent Lobbying Transparency Enforcement Act, introduced by Sens. Tammy Duckworth, Dick Durbin, and Richard Blumenthal, amends the Foreign Agents Registration Act of 1938 (FARA) to increase enforcement of certain violations and strengthen certain transparency requirements. Specifically, the bill would authorize the U.S. Department of Justice (DOJ) to levy civil fines to punish offenders who fail to properly label FARA filings, file late, do not file at all, or fail to register. The legislation also clarifies what required statements must be filed with the DOJ and mandates registrants file certain informational materials currently excluded from reporting.

The bill has been referred to the Senate Committee on Foreign Relations.

On July 28, Rep. David E. Price introduced a 252-page bill which would reform campaign finance laws, amend the current federal lobbying laws, and address integrity and transparency problems in the Executive Branch.

House Resolution 3537, We the People Act of 2017, is a comprehensive attempt to address issues such as federal lobbying, campaign finance, redistricting imbalances, and voter eligibility in order to focus on “major structural problems facing our democracy,” according to Price’s press release.

The law would change lobbying registration requirements and no longer exempt an individual who spends less than 20 percent of his or her time serving as a lobbyist for a particular client if he or she meets the other thresholds for registration. In addition, the legislation would require U.S. presidents to divest assets with potential conflicts of interest, require states to allow eligible individuals to register to vote on the same day of a federal election, and replace the Federal Election Commission with a new enforcement agency.

In the bill, other pending legislation currently in Congress dealing with ethics and transparency are referenced and incorporated. The bill also provides suggested solutions to be used in state and local legislative reform efforts.

On July 27, a bill was introduced into the U.S. House of Representatives to prevent the firing of a director of the U.S. Office of Government Ethics (OGE) without cause.

House Resolution 3462, The Office of Government Ethics Independence Act, would amend federal law by clarifying that the director of the OGE may only be removed for the neglect of duty or instances of wrongdoing. It would also require the president to provide Congress with 30 days advanced notice of his or her intent to fire the director and to inform Congress as to the reasons for the action taken.

On July 19, Walter Shaub Jr. resigned as director from the OGE. Shaub, in his position as the director, had repeatedly questioned various possible conflicts of interests of President Trump and of members of the president’s White House staff. The current acting director of the OGE is David Apol, who was selected by President Trump to replace Shaub until a permanent director is announced and subsequently confirmed by the U.S. Senate.

On July 17, the National Institute for Lobbying and Ethics (NILE) called on the U.S. Congress and the U.S. Government Accountability Office to review current lobbying laws with the aim of strengthening any deficiencies in the rules. NILE is a professional organization for governmental affairs professionals working at the federal, state, and local level.

“Continued news reports about the deregistering of lobbyists and ‘shadow lobbying’ to skirt past Obama and Trump Administration rules has greatly concerned the government relations profession,” NILE President Paul A. Miller stated in the organization’s press release. Miller continued, “Changes do need to be made to the current [Lobbying Disclosure Act] if we are to keep pace with how ‘lobbying’ is conducted today.”

Earlier this year, NILE issued wide-ranging recommendations for lobbying law reform on the federal level.

Today, Director Walter Shaub Jr. submitted his resignation from the U.S. Office of Government Ethics (OGE). Shaub, in his position at the OGE, has repeatedly questioned various possible conflicts of interests of President Trump and of members of the president’s White House staff.

Shaub will leave his position on July 19 and begin working at the Campaign Legal Center, a nonpartisan organization of election-law experts based in Washington, D.C. “At the Campaign Legal Center, I’ll have more freedom to push for reform. I’ll also be broadening my focus to include ethics issues at all levels of government,” Shaub told NPR.

In June, Rep. Louise McIntosh Slaughter introduced a bill to regulate political intelligence activities.

House Bill 2819, the Political Intelligence Transparency Act of 2017, defines the term ‘political intelligence activities’ to mean political intelligence contacts and efforts in support of such contacts, including preparation and planning activities, research, and other background work that is intended, at the time it is performed, for use in contacts, and coordination with such contacts and efforts of others. The bill amends the Lobbying Disclosure Act of 1995 to require the disclosure of political intelligence activities, amends title 18, United States Code, to provide for restrictions on former officers, employees, and elected officials of the executive and legislative branches regarding political intelligence contacts, and makes other related changes.

The House Committee on the Judiciary currently has the bill under consideration.