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June/July 2002
In our society we sometimes give gifts as
a way to say thank you. In the public sector, citizens often perceive
gift-giving as akin to Newton's Third Law of Motion - for every action,
there is an equal and opposite reaction. A gift to a public official that
might be a simple thank-you can look to someone else as a reward for
mutual favors. Is it possible for legislators and lobbyists to do their
jobs without validating this public perception? States have answered by
enacting gift restriction and reporting laws.
Three Common Types of Gift Restrictions.
States
agree that giving and receiving gifts is prohibited if they influence
official action. From that point on states differ in the details. Gift
restriction statutes generally can be grouped into three categories: zero
tolerance laws, bright line test laws, and states using disclosure and
discernment instead of restrictions.
Zero Tolerance Laws.
Massachusetts, Wisconsin, and
South Carolina are considered "no cup of coffee states." In these states,
a lobbyist cannot give a legislator anything, including a cup of coffee.
Wisconsin was the first state to adopt a zero tolerance rule. Enacted in
the 1950s, Wisconsin prohibits all gifts to legislators unless also
provided to the general public. All three states allow gifts from
non-lobbyists under certain circumstances.
About a quarter of states restrict gifts of any monetary value, but
with exceptions such as food and beverages, which take them out of the
strict no-cup-of-coffee category. Minnesota comes close to being a
no-cup-of-coffee state, the only exception being food and beverages at an
event where a legislator gives a speech and or answers questions.
Bright Line Test Laws.
The largest number of
states, almost half, specifies a monetary limit on gifts to legislators.
These states employ a "bright line test," and allow gifts up to a
statute-established level. Iowa, otherwise a zero tolerance state, creates
a bright line exemption of $3 a day limit for gifts and food and
beverages. In Texas, the line is drawn at $500. The remaining states lie
somewhere in between these limits.
Disclosure Laws.
Some states focus on disclosure
instead of restrictions. Mississippi and Alabama are examples of "report
everything" states. Lobbyists can give most anything of value, but it must
be reported. Such reporting can affect behavior. In Kentucky, a zero
tolerance state, a lobbyist may spend $100 per year for food and beverages
for legislators and the amount spent and name of the legislator is
reported. Because of legislators' reluctance to accept food and beverages,
in 2001, lobbyists reported spending only $25 for food and beverages for
legislators.
States Restricting Gifts Only If Act "Influences Official
Action."
A third of states do not place monetary restrictions
on gift giving. Instead, the action is prohibited if it influences a
legislator's official action. Proponents say that this allows legislators
the freedom to interpret what constitutes "an influence" rather than
assuming that all gifts influence legislative decisions. Opponents worry
that such subjectivity allows the laws to be erratically enforced, that if
it is not a bribe, then it could be perfectly legal to give a gift in any
amount.
The same subjectivity is viewed by some to be an asset. Hawaii applies
its local customs to its gift restriction law that prohibits gifts only if
they "influence official action." On the opening day of the Hawaii
legislative session, the public is invited to legislators' offices to
enjoy food representing the ethnic cultures of the state. Hawaiians do not
see this custom as intending to influence anybody.
Gift restriction laws do evolve and change in response to cultural
norms and public opinions. Rhode Island, formerly a co-cup-of-coffee
state, became a bright line state in 2000. Some say it was an attempt to
bring a bit of practicality to the zero gift policy. On the other hand,
Mississippi now requires lobbyists to report anything spent above $10, a
strengthening of a 1994 provision.
What best serves the public?
A recent issue of
Public Integrity features both sides of the argument: an advocate of zero
tolerance laws says they eliminate the ambiguity created by any level of
monetary restrictions. Opponents of those laws say a de minimus policy,
mechanisms for independent third party review, and disclosure are more
reasonable approaches. Both sides agree that the goal is creation of a
policy that prevents the appearance of impropriety.
Former Minnesota state senator Ember Reichgott Junge, who was chair of
the Senate Subcommittee on Ethical Conduct, thinks there is a public
policy interest in having strong ethics laws. But, she adds, "When we have
to analyze what constitutes a 'speech' at a public event before we can
eat, we might want to question whether the public interest is really being
served."
What is the best gift restriction law? Or, should we be asking what
accomplishes the goal of strengthening the public's trust in government?
Alan Rosenthal, professor of public policy at Rutgers University, believes
"The responsibility of legislators to the offices they hold and the
institutions in which they serve is the final standard to be taken into
account."
Maybe this is the bright line test the public is seeking.
Selected References
Fain, Herbert. The Case for a Zero Gift Policy.
Public Integrity, Winter 2002: 61-69.
Denhardt, Kathryn and Stuart Gilman. Extremism in the
Search for Virtue. Public Integrity, Winter 2002: 75-80.
Rosenthal, Alan. Drawing the Line. Lincoln:
University of Nebraska Press, 1996.
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