When the word “gift” was mentioned, what did your 7-year old self anticipate?
I recall thinking about gadgets, beautifully constructed boxes, thick and well-patterned wrapping paper, and curled ribbons. Each box would be exquisitely wrapped, and you would be afraid to touch it, even open it.
And inside that beautifully wrapped box would be something equally as expensive and that your parents probably would not get for you.
Or, if you had my parents, the gifts would be clothes and other practical things.
The Normal World: Business Courtesies vs Gifts
Did you ever think that any of the following could be gifts as well?
A bottle of water
A ride to the airport in your car
A Starbucks cappuccino
In a normal world, these items would not be “gifts” but business courtesies.
But the law twists everything around – these items would be gifts if they were offered to a government official or employee.
Interacting with Government Officials and Employees: There are no business courtesies, only gifts
Everyone interacts with the government at some point in his or her life – whether to get a permit, license, loan, contract, or anything else. Like any other relationship, a relationship with a government official or employee needs to be started, sustained, and solidified. Common sense would dictate that such a relationship would usually start with a cup of coffee.
But the law would view that cup of coffee and any subsequent interaction with food as potentially affecting the integrity of government decision makers. The original purpose of these laws was to ensure that government decisions would not be influenced by anything other than the merits of the issue. So, as a general rule, all gifts to government officials and employees are banned, unless they fit under an exception.
Often these exceptions seem endless and require a fact-based inquiry, and significant structure shaping so that an item of value may be permissibly provided to the government official or employee. In most instances, there are at least twenty to twenty-five exceptions to the general rule that government officials and employees must not accept anything from any private party. Common exceptions are:
Items under a certain dollar amount;
Items received from a friend – but the government decides whether you are really friends;
Items received from family members;
Items generally provided at funerals of those closely related to the government official and employee;
Items that provide educational value to the government officials and employees; or
Items provided to an entire class of government officials and employees (for example, the entire state Senate or state House);
Interacting with Government Officials or Employees: How do you value sexual relationships between registered lobbyists and government officials?
Until recently, most gifts provided to government officials or employees were either physical items or commonly provided services, such as a car ride or loaning one’s hammer or saw. This made it possible to assign these gifts a value based on market research, and enable counsel to determine if the proposed gift fit under one of the exceptions. For example, with respect to sporting event tickets, if no price was printed on the physical ticket, then you start researching the eBay price of those tickets to determine the fair market value. But this market research valuation standard also led to some absurd results – when kindergarten students sent a picture in a frame to a senior federal government official, the picture had to be separated from the frame. The frame value did not fit under any of the gift exceptions. But the picture had little value by itself – kindergarten students had drawn it.
But how do you value senior government officials’ sexual relationships with registered lobbyists? The state of Missouri tried to pass legislation mandating that sexual relationships between registered lobbyists and Missouri’s senior government officials be disclosed on lobbying reports as a gift expenditure. However, this failed legislation did not mandate disclosure of the sexual relationship’s value, although Missouri law required that every disclosed gift on a lobbying report had to state a value.
Meanwhile, the North Carolina State Ethics Commission, in response to an inquiry from its Secretary of State, specifically stated that consensual sexual relationships between registered lobbyists and government officials did not have to be disclosed as expenditures on lobbying reports, because those sexual relationships did not have any monetary value, and therefore, did not constitute a “thing of value.” On the other hand, the same ethics commission advised that paid prostitution services by a third-party directed to a government official had to be disclosed as expenditures, because in this case, there was monetary value to the services.
Except that prostitution is illegal in North Carolina – so if a lobbyist discloses paid prostituion services as an expenditure, wouldn’t he or she also be admitting to committing a crime?
Back to the Beginning: What are the gift laws trying to achieve?
To paraphrase Oscar Wilde, we often know the price of everything, and the value of nothing. We have been unable to eradicate corruption and undue influence via legislation and prosecution alone – in fact, some would argue that these laws have made matters worse. As we parse through what is and is not a gift – and whether sexual relationships have monetary value or not – are we missing the more fundamental question?
Is the gift the problem?
Or, are we the problem?