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Jonathan Swift observed, “Laws are like cobwebs which may catch small flies, but let wasps and hornets break through.” More “wasps and hornets” than ever stand to benefit if a decision involving the federal gratuity statute is not reversed. If the U.S. Court of Appeals for the D.C. Circuit doesn’t change its direction, the result could have far-reaching implications, further impeding prosecutors’ ability to convict public officials who accept gifts and favors from private parties. Public officials would be able to accept gifts, money, and services from interested parties with little fear of prosecution. Such an outcome will worsen the “pay-to-play” atmosphere on Capitol Hill and across the country. The D.C. Circuit case is United States v. Valdes. Nelson Valdes, a former D.C. Metropolitan Police Department detective, was convicted in the U.S. District Court for the District of Columbia of receiving illegal cash gratuities in exchange for disclosing vehicle-registration and arrest-warrant information from a law enforcement database to an acquaintance who was an FBI informant. On appeal, a split three-judge panel on the D.C. Circuit said that Valdes’ actions were not a sufficiently “formal” part of his job and thus were not an “official act” within the meaning of the gratuities statute. The Valdes court stated that an “official act” must be a ” �decision or action’ that directly affects any formal governmental decision made in fulfillment of government’s public responsibilities.” The case is scheduled for a rehearing en banc on Sept. 28. DANGEROUS GIFTS Why does Valdes‘ interpretation of the federal gratuities statute matter so much? For starters, this law is an important corollary to the federal bribery statute because it prevents officials from accepting gifts and favors given “for or because of” official acts in circumstances where the explicit quid pro quo required for a bribery conviction is not involved. If the full D.C. Circuit narrows the reading of the “official action” component of the anti-gratuities statute, a greater number of public officials will be able to accept money, gifts, and favors from interested private parties without fear of punishment. The ruling would open a window for the legal rewarding of public officials for performing actions that are available to them because of their position but lack the “degree of formality” to meet the requirements of the bribery statute. More broadly, gratuities given to government officials present two dangers. First, gratuities can bias a government official in favor of the giver and distort his or her ability to execute the duties of office impartially. Though some officials may believe they can remain neutral, some sense of obligation is inevitably created — and unfortunately, some officials do not always have such pure intentions in the first place. Second, regardless of a gratuity’s effect on the recipient’s discharge of official duties, it can create an appearance of impropriety that undermines public confidence in government. The federal anti-gratuities statute should provide a defense against these perils to our system of democratic government. TENNIS TICKETS Unfortunately, the law in this area was problematic even before Valdes. Federal prosecutors charged with enforcing the gratuities statute are still reeling from the Supreme Court’s 1999 decision in United States v. Sun-Diamond. In the early 1990s, Sun-Diamond Growers Association gave then-Secretary of Agriculture Mike Espy approximately $6,000 in gratuities, including tickets to the U.S. Open tennis tournament, luggage, and meals. Sun-Diamond had an interest in pending Department of Agriculture regulations over which Espy had influence. In Sun-Diamond, the Supreme Court rejected a broad interpretation of the federal gratuity statute known as the “official position” standard, which would make a gift illegal if given because of the recipient’s official position. The Court worried that gifts given during ceremonial visits would be subject to “absurd” prosecutions and so required a link between the gift and an “official act.” The combination of the Sun-Diamond ruling with an unfavorable decision in Valdes would create an unrealistically high bar for prosecution. Not only would prosecutors be required to present evidence establishing a nexus between the gift and an official act, they would additionally have to grapple with the nebulous question of which acts are considered “official.” Public officials in all areas of government, from Congress to police departments, could enrich themselves by receiving lucrative thank-yous for performing informal functions. ANOTHER LOOPHOLE The problem becomes even clearer when one considers how past convictions would fare under the reasoning of the initial Valdes panel. If not reversed, the Valdes decision will call into question whether past gratuities convictions could meet the heightened formality standard. For example, in 1988, then-Rep. Mario Biaggi (D-N.Y.) was convicted of violating the gratuities statute by accepting vacations and spa treatments from Brooklyn Democratic Party leader Mead Esposito in exchange for using his influence to urge city and federal officials to make favorable accommodations for a ship company that was a major client of Esposito’s insurance agency. Biaggi’s actions consisted primarily of making telephone calls, writing letters on congressional stationery, and attending meetings to help Esposito’s financial interests. He was convicted of a criminal violation of the gratuity statute. The conviction came before the Sun-Diamond and Valdes cases, and it is not clear that his conviction would be possible in a post- Valdes world because his actions arguably are not official acts such as casting votes or introducing legislation. If the Valdes ruling comes out the same way on rehearing as the original appeal, yet another ethical loophole will exist in an area of critical public importance. The integrity of all public officials is vital to public confidence in our democracy and critical to safeguarding the effectiveness of government. Particularly in light of the complete failure, due to partisan gridlock, of the House Ethics Committee to penalize members for violating House rules, the gratuity statute is the last bulwark precluding a member from legally accepting cash rewards for performing legislative favors that fall short of “formal” actions such as roll-call votes. Regardless of the outcome in Valdes, Congress should make rewriting the federal bribery and gratuity statutes a high priority next year. A broader “official position” interpretation should be codified to ensure that our public officials on all levels fulfill their responsibilities in an honest and impartial manner and refrain from using their positions for financial gain. At the very least, Congress should clarify the existing language of the statute to specify that all office-related acts of public officials are covered under the gratuity provision, rather than only those acts that meet the ambiguous “formality” test of Valdes, which is insufficient to protect the public from official corruption. In the bad old days of President Ulysses Grant’s administration, the term “lobbyist” was coined to describe the men with envelopes full of cash who waited for members of Congress in the lobby of the Willard Hotel. Let’s not resurrect that shameful era. Strong enforcement of public integrity statutes is essential. For the sake of bolstering flagging public confidence in our government, the D.C. Circuit and, if necessary, Congress should overturn the result in Valdes.
Meredith McGehee is the policy director of the D.C.-based Campaign Legal Center. She also runs McGehee Strategies, a public interest consulting business.

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