Just Because You Can Doesn’t Mean You Should.

Just because you can doesn’t mean you should.  Just ask the several Members of Congress who are facing a potential Ethics Committee investigation based upon campaign fundraisers they held around the time of a House Financial Services Committee vote on the Dodd-Frank financial services reform bill in December 2009.

Federal campaign finance law does not address the timing of campaign contributions to Members of Congress.  The federal criminal code, however, would prohibit the making or acceptance of a campaign contribution in exchange for official action, and congressional ethics rules require Members to avoid even the appearance of impropriety.  And it is those provisions, not the Federal Election Campaign Act and FEC regulations, that are at issue here.

Indeed, according to the Office of Congressional Ethics, which has referred the matter to the Ethics Committee, fundraising around committee votes creates the appearance of special treatment or access, and makes it look as if contributions to the event were linked to an official act.  This position no doubt came as news to the targeted Members — who likely scheduled their fundraisers based upon long-standing congressional fundraising practices and the absence of any prohibition in the Federal Election Campaign Act or FEC regulations against them.

But the federal government has a long history of prosecuting public officials and others who engaged in lawful acts with allegedly illicit motives.  The IRS, for instance, has aggressively pursued taxpayers who combine lawful instruments, vehicles and transactions to avoid paying taxes.  More recently, the DOJ has utilized the so-called “Honest Services” statute to prosecute, among others, an Alaska State Senator for not disclosing employment negotiations Alaska law did not require him to disclose.

Now, the investigation of congressional fundraising is especially troublesome.  Federal law limits the amount of money any donor can give to $2,400 per candidate per election.  Congress put that limit in place to combat corruption and the appearance of corruption, and the $2,400 cap represents Congress’ judgment that contributions equal to or less than that amount are too small to corrupt or appear to corrupt the recipient.  Moreover, while the federal campaign finance regulatory scheme fills hundreds of pages in the Federal Register, Congress has not seen fit to include in that scheme a limit on the timing of fundraisers or contributions.

The Ethics Office’s referrals ignore and undermine Congress’ judgment on this matter.  Nevertheless, they illustrate that when it comes to the intersection of law and politics, it is important to consider not only what is legal and illegal, but also what is likely to draw the attention of federal investigators, the media and reform advocates — some of whom are not as interested in what the law says as they are in what they think it should say, and in using your case to make new law.

The best political law attorneys recognize this dynamic and help their clients structure their activities accordingly — saving their clients legal costs, opportunity costs and reputation costs in the process.