The Gift

2/1/2015

STATE LEGISLATURES MAGAZINE | February 2015

In an effort to show they mean business when it comes to ethics, legislatures continue to shore up laws that ban gifts from lobbyists.

By Peggy Kerns and Natalie O'Donnell Wood

Representative Brent Yonts (D) operated just fine for years under Kentucky’s ethics law, reputedly one of the most restrictive among the states. The law was passed in 1993 in the wake of an 18-month FBI sting investigation, Boptrot, that resulted in 15 legislators and several lobbyists being convicted of crimes ranging from extortion and racketeering to accepting bribes and lying.

A major component of the law was that it drew a bright line between legislators and lobbyists by prohibiting legislators from receiving anything of value from lobbyists or their employers. The law allowed lobbyists to pay up to $100 in food and beverages for each lawmaker, but lobbyists were required to report the spending and the name of the legislator.

Representative Yonts came to believe that even more could be done, however. “The public thinks there is so much corruption in politics. Perceived or not, this is what people believe,” he says.

With this in mind, Yonts, who chairs the House State Government Committee, became the primary House sponsor of a bill developed by the state’s Legislative Ethics Commission. It passed last year, giving Kentucky the strongest and most comprehensive ethics law in the nation, according to Yonts.

The new law prohibits lobbyists and their employers from giving anything of value, including food and beverages, to individual legislators and their families. This makes Kentucky one of 10 states with bans on gifts from lobbyists, often called “no-cup-of-coffee” laws. 

“This legislation is very important in today’s culture,” Yonts says. “Our focus is to make the legislative body function without the belief or suspicion that we are bought and paid for—because we are NOT,” he says. And with a chuckle, he adds, “In practice, no one bought anyone a cup of coffee anyway.”

States have reformed and re-reformed gift laws numerous times in the nearly 16 years that NCSL’s Center for Ethics in Government has tracked the issue, making it a perennial hot topic. And it remains hot because legislators like Yonts say, “We try to make our behavior as pristine as we can—even if the public does not agree.”

The late Alan Rosenthal, professor of public policy at Rutgers University, was less concerned about lawmakers’ and lobbyists’ misuse of gifts than he was by the public’s perception of gift giving. He used standards of appearance, fairness and responsibility to distinguish between appropriate and inappropriate legislative behavior.

“According to the appearance standard, there can be no question as to the propriety of lobbyists’ gifts to legislators. It is improper … because it gives people an impression of being so,” he wrote in his book, “Drawing the Line.”

When Is a Gift Not a Gift?

Gift laws don’t come all tied up in neat red bows, easily categorized. Connecticut law defines a gift as “anything of value that is directly or personally received, unless equal consideration is given in return.” Iowa’s definition is similar.

Even with these specific definitions, both states have a list of exemptions. Iowa allows gifts of plaques, items worth $3 or less, free items available to the public, and reimbursement for expenses to speak at a meeting.

Because of exceptions, gifts may be better defined by what they are not. Although there is no 50-state consensus about gift exemptions, there are common themes. Some states exclude campaign contributions, gifts from friends or relatives, loans made in the course of ordinary business, awards and educational items. Other states are similar to Iowa in that they exempt small items or trinkets, using a variety of terms to describe them. Maryland, Minnesota, New Hampshire and West Virginia use “insignificant”; New York, Washington, West Virginia and Wyoming use “nominal”; and Alabama and Missouri use the Latin term “de minimis.”

Gifts of food and beverages are popular exceptions to gift rules as nearly every state allows legislators to consume them in certain situations. It’s not about the food, Yonts says, “I go to receptions, graze a few minutes and go back to work,” he says. “My main purpose is to mingle with people—citizens—who have topics before the legislature. I want to hear their points of view.”

State legislatures often will revisit gift definitions and exemptions when the law’s practical application is challenged. Alabama redefined “public employee” after 2011 changes to its gift laws prohibited public school teachers from receiving students’ gifts. And New York lawmakers defined “widely attended event” in 2011 to better clarify what the term covered.

2014—The Year of the Gift Law

In the last five years, nearly every state legislature has considered either creating or amending its gift law, with almost half the states enacting changes. But 2014 stands out as a banner year for gift laws, with high-profile news stories prompting changes in at least five states—Arkansas, California, Kentucky, Virginia and Washington.

In last November’s general election, Arkansas voters passed the Elected Officials Ethics, Transparency and Financial Reform Amendment that prohibits legislators and constitutional officers from soliciting or accepting gifts from lobbyists, those representing a lobbyist, or those who employ or contract with a lobbyist. It strikes the allowance for gifts under $100 and further narrows the exceptions to the term “gift.”

California struggled with scandal in 2014, after two senators were indicted on corruption charges for accepting gifts and dinners from lobbyists meant to curry their favor. In response, the Legislature passed two measures that would have prohibited certain lobbyist gift-giving. But the bills were vetoed by Governor Jerry Brown, who said in his veto message, “Politicians should be subject to various constraints. At some point, balance and common sense are required.”

In Pennsylvania during the 2013-2014 biennium, after several legislators and other public officials were accused of failing to disclose cash gifts, the legislature considered reforming its gift laws. The Senate amended its rules to define “cash gift” and create exceptions. The rules explicitly prohibit a senator or Senate employee from accepting or soliciting cash gifts from a lobbyist or a person seeking official action from that official or employee.

In September 2014, Virginia Governor Bob McDonnell was convicted of accepting gifts, loans and other benefits from a lobbyist in exchange for lending him the “prestige of office,” which amounted to access and preferential treatment for his business. The scandal prompted the legislature to redefine gifts, include new categories of “tangible” and “intangible gifts,” require the disclosure of gifts given to family members, prohibit certain gifts and set a $250 threshold for others.

Washington’s Legislative Ethics Board created a definition for “infrequent occasion” after several news stories highlighted the lack of consistency in the use of the term when applying the state’s gift law. Based on the ruling, as of Jan. 1, lawmakers are allowed to accept up to 12 meals in a calendar year from lobbyists. There are also other exemptions related to gifts of food and beverages that continue to apply.

Going Against the Grain

Although most states have moved toward more restrictive gift laws, the pendulum can swing both ways. Florida and Minnesota, both self-proclaimed “no cup of coffee” states, attempted to change their laws in 2013.

“Essentially, [our law] sat for about 10 years without substantive changes,” says Tom Bottern, counsel to the Minnesota Senate. But in 2013 the Legislature passed a bill to allow for food and beverages at meetings and receptions, if all legislators are invited to attend and at least five days advance notice is given. The exemption joins a handful of very specific allowances, including certain items with a resale value of $5 or less and food and drink at receptions, meals or meetings where a legislator is speaking. “Legislators often accept a free cup, but rarely can they accept the coffee,” says Bottern.

Proponents hope the new exception leads to an increase in collegiality by allowing legislators to spend more time together in a social setting. But there is a downside. “When you invite 201 people, plus staff, there are practical limitations,” says Bottern. “Only those who can afford to host a big event will hold one.”

In Florida, Senator Tom Lee (R) tried to create de minimis exemptions to Florida’s law in 2013. He was in familiar territory. In 2006, when he was Senate president, he spearheaded—along with House Speaker Allan Bense (R)—Florida’s zero-tolerance ban. It was not a smooth journey. It was difficult to find a solution that would strike a balance between preventing unethical behavior and being “reasonable,” he says. After debating several options, ”we agreed to settle on banning all gifts from lobbyists to legislators. We couldn’t come up with a way to create a dollar amount that wouldn’t be terribly abused,” he says.

Lee was term-limited out of the Legislature in 2006, but was re-elected in 2012. He saw that gift restrictions had tempered the influence of money on the process, but still saw room for improvement. Although his 2013 bill to allow some de minimis exemptions to the gift ban did not pass, he believes Florida’s existing law resulted in a positive culture shift.

“What I find today is that the lobbyists are happier and the members are living healthier lives, because what everyone has learned is that legislators don’t really like hanging out with lobbyists unless they’re paying the bill,” he says.

Unintended Consequences

Michael Beasley, a Colorado lobbyist, charts Colorado’s gift law by remembering the “before and after.”

In 2006, voters approved a far-reaching amendment to the state Constitution that, among other things, prohibits lobbyists from giving any gifts, regardless of the amount, to state and most local elected officials as well as employees in the executive and legislative branches. Beasley maintains the amendment is a model of what not to do. It weakens the legislature, he says, by not allowing members to get to know each other and their constituents, and to learn about the many sides of issues, in a social setting.

Beasley scoffs at the idea that a reception or a meal sponsored by a special interest would have affected votes. “There are only 24 hours in a day for legislators to grab time with each other and with citizens,” he says. “These social situations provide a setting that lends itself to conversation and problem-solving.”

What’s in Store for 2015?

Debate about gift laws is likely to continue. In fact, “it’s an endless task,” says Lee.

“Democracy can’t function if the public can’t trust its government. We’ve had scandal after scandal in our country, and increasing cynicism. We need honesty, transparency and accountability,” he says. “The most important job we do is to enhance the public trust, for the good of the order."

Definitions and Details

Want to know more? Find all the nuances in state disclosure laws and gift limits, including definitions, limits and prohibitions, by exploring the Ethics Center’s 50-state database on gift laws.

Peggy Kerns directs NCSL’s Ethics Center. Natalie O’Donnell Wood is a program principal in NCSL’s Ethics Center.

Additional Resources