The SWAMP Act

7/31/2019 The SWAMP Act

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Somethings Wrong with American Politics Act (2013)

PART 1

GENERAL PROVISIONS AND DEFINITIONS

101. Short Title.

This Act may be cited as The SWAMP Act of 2013.

102. Subject Matter.

(a) This Act applies to interactions regarding candidates for and members of the Legislativeand Executive branches of the Federal government, established under Articles I and II of theConstitution of the United States, before, during and after their terms in office as well as theirstaff.

(b) If there is a conflict between this Act and provisions of previously enacted law or rules,this Act will govern.

103. Definitions.

(a) In this Act:

(1) Appointed official means any individual who holds a non-elected office (A) ineither the Legislative or Executive branches of the Federal government or in anyadministrative agency that has been granted powers of the Legislative or Executivebranches of the Federal government and (B) whose office is ultimately responsible forfinal decisions regarding rulemaking and/or adjudications on any relevant matter.

(2) Candidate means any individual who seeks nomination for election, or election, toFederal office, whether or not such individual is elected, and, for purposes of thisparagraph, an individual shall be deemed to seek nomination for election, or election, toFederal office, if

(A) such individual has received contributions aggregating in excess of $5,000 orhas made expenditures aggregating in excess of $5,000; or

(B) such individual has given his consent to another person to receivecontributions or make expenditures on behalf of such individual and if suchperson has received such contributions aggregating in excess of $5,000 or has

made such expenditures aggregating in excess of $5,000.

(3) Candidate telecommunications has the same definition as is given to electioneeringcommunications in 2 U.S.C. 434(f)(3) and 11 CFR 100.29 with the revision that 11 CFR100.29(a)(2) is deleted and replaced with the clause is publicly distributed by an

individual or an individuals Treasurerat any point after that individual has become acandidate.


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(4) Communicate means to intentionally and purposefully transmit information throughany medium whatsoever, including but not limited to face-to-face contact, writing, audioor video recordings, or other electronic media such as email.

(5) Constructive knowledge means the actual knowledge of a fact imputed to anindividual if that individual should or would have known that fact by the exercise ofreasonable care or diligence under the circumstances.

(6) Contribution means any gift, subscription, loan, advance, or deposit of money oranything of value, made for any political purpose. There shall be a conclusivepresumption that any such giving of value from a person who has been a lobbyist in thelast two years, starting from the date of the giving of value, was made for a politicalpurpose.

(7) Elected official means any individual who holds office as a Congressman in theUnited States House of Representatives or as a Senator in the United States Senate,pursuant to Article I of the Constitution of the United States, or as President or Vice

President of the United States, pursuant to Article II of the Constitution of the UnitedStates, or any individual who holds any of the above offices, for any length of time, as aresult of the death, impeachment, incapacity, retirement or other disqualification orremoval of the original elected official.

(8) Election means

(A) a general, special, primary, or runoff election;

(B) a convention or caucus of a political party which has authority to nominate acandidate; and

(C) a primary election held for the selection of delegates to a national nominatingconvention of a political party.

(9) Good faith means honesty in fact and the observance of reasonable standards of fairdealing.

(10) Lobbyist means any petitioner (A) who receives anything of value from a thirdparty to petition the Federal government for redress of grievances pursuant to the FirstAmendment of the Constitution of the United States or (B) who is currently employed atthe time of the petitioning as an officer, director, or board member of any legal orcommercial entity that employs more than one hundred (100) individuals, including anywholly-owned subsidiaries.

(11) Matter means

(A) the formulation, modification, or adoption of any specific Federal legislation(including legislative proposals);

(B) the formulation, modification, or adoption of a Federal rule, regulation,Executive order, or any other program, policy, or position of the United StatesGovernment;


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(C) the administration or execution of a Federal program or policy (including thenegotiation, award, or administration of a Federal contract, grant, loan, permit, orlicense); or

(D) the nomination or confirmation of a person for a position subject toconfirmation by the Senate.

(12) Petitioner means any person who communicates with elected or appointed officialsin order to petition the government for a redress of grievances pursuant to the FirstAmendment of the Constitution of the United States, regardless of whether the personreceives anything of value from a third party to so petition.

(13) Person means an individual, corporation, business trust, estate, trust, partnership,limited liability company, labor organization, association, joint venture, government,governmental subdivision, agency, or instrumentality, public corporation or any otherlegal or commercial entity.

(14) Regulated industry as applied to appointed officials means any person who

A) has been a named party to any adjudication or similar judicial decision by aspecific appointed official;

B) has joined in or has filed or participated in the creation of any brief filed duringthe adjudication or similar judicial decision in which a specific appointed officialhas participated;

C) owns, either as a parent company or as a successor in interest, any such personreferenced in subsections A or B; or

D) has employed lobbyists to communicate with a specific appointed official at

any point during his time in office.

(15) Regulated industry as applied to Congressional elected officials means any personwho

A) has submitted a bill, amendment or any other such matter that originates, isdiscussed or receives a vote in the specific elected officials legislativecommittee;

B) has joined in or has participated in the creation of any brief or memorandum tobe considered during the consideration of any matter mentioned in subsection A,regardless of whether such brief or memorandum was requested by the legislative

committee;C) owns, either as a parent company or as a successor in interest, any such personreferenced in subsections A or B; or

D) has employed lobbyists to communicate with a specific elected officialregarding any matter mentioned in subsection A or B.


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(16) Staff means any individual who works in any capacity (a) in either the Legislativeor Executive branches of the Federal government or in any administrative agency that hasbeen granted powers of the Legislative or Executive branches of the Federal governmentand (b) who is neither an elected official nor an appointed official.

(17) Value means currency, goods, services, real estate, forgiveness of an antecedentdebt, loans, security interests, stock options, investment securities, tax credits, offers ofemployment, any legal consideration sufficient to support a simple contract and anypromise to deliver any of the above or other items at a future time whether or not suchpromise is legally enforceable or constitutes sufficient legal consideration to support asimple contract.

Official Comment

1. Appointed officials. The term appointed officials aims to capture the top decision-makers inany given administrative agency or executive department. The decisions and rules propagated on amyriad of issues often have their source in the internal adjudications or rulemaking in these agencies.

Therefore, any document that aims at controlling systemic corruption would be completely emptywithout applying its rules to these governmental entities. For example, appointed officials includesthe Commissioner of Internal Revenue, the Secretary of State, Commissioners of the Securities andExchange Commission and the Director of the Federal Bureau of Investigation. Since appointedofficials has been defined only to capture the most senior decision-makers of a given federal agency,the vast majority of employees in these agencies will be considered simply staff, which is definedin 103(16) as well as Official Comment 16 below.

2. Candidate. The only complexities that arise from the term candidate as used in this Actrevolve around when exactly one becomes a candidate. The definition here takes its language andconcomitant policy determination on this issue from the Federal Election Campaign Act of 1971,specifically, 2 U.S.C. 431. The term election included in this section also draws its definition

from this source.

3. Candidate telecommunications. The definition used in this Act for candidatetelecommunications is almost entirely identical to the definition of electioneering communicationscurrently defined and utilized under federal law. That definition is lengthy and complex, but insimplified form, it states that an electioneering communication is any broadcast, cable or satellitecommunication that 1) refers to a clearly identified candidate for federal office, 2) is publiclydistributed shortly before an election for federal office (30 or 60 days depending) and 3) in the case ofcandidates for Congress, is targeted to the relevant electorate. The drafter accepts the logic andreasoning of the vast majority of this definition, including the exemptions for the press, debates andcommunications disseminated through alternate means. However, the second requirement listedabove that the communication occur shortly before an election has been revised to refer to any

otherwise applicable communication that occurs at any point once an individual has become acandidate as defined in this Act.

4. Communicate. This term has been defined in this section in order to give thorough clarity tothe criminal provisions of 303, which pertains to the ex parte communication of elected or appointedofficials with lobbyists.

5. Constructive knowledge. This is an important, practical concept that is utilized in 501s dutyto report commissions of corrupt practices under this Act. As discussed in the Official Comments to


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that section, the concept is meant to capture those who may intentionally avoid obtaining actualknowledge of events in an attempt to evade the technical acquisition of actual knowledge while stillbeing cognizant of what has likely happened given the circumstances.

6. Contributions. Intuitively, contributions are things of value given to candidates while they areattempting to become elected officials. This term is used only in Part Two of this Act, which is the

pre-office portion. On the issue of people who have recently been lobbyists as discussed in 203, anygiving of value from them will be presumed to have been for a political purpose and thus would bepresumed to be a contribution.

7. Elected officials. This is a straightforward definition that generally means what it says, i.e., anymember of the Federal government who holds his office due to a public election. This term, as wellas appointed officials, are used to back into the definition of staff as essentially meaning anymember of the Federal government who is neither an elected nor an appointed official.

8. Election. The definition of this term has been taken from the Federal Election Campaign Actof 1971, specifically, 2 U.S.C. 431, as noted in Official Comment 2.

9. Good faith. This term is only applicable to the anti-retaliation provision of 503 and is meantto stave off the slim potential for abusive reporting of potential wrongdoing by staff under this Act forpolitical means or other reasons.

10. Lobbyist. This is one of the more important definitions in the Act. The first manner in whichone can become a lobbyist is relatively straightforward and likely matches the colloquial definition oflobbyist in society, i.e., a lobbyist is a paid or similarly compensated petitioner under the FirstAmendment. The second manner in which one can become a lobbyist requires more discussion. Thatdefinition brings in individuals who are in positions of control over large organizations, whether theybe unions, corporations or any other non-individual person. The drafter reasons that these individualsare in positions of such responsibility relative to the non-individual person over whom they exercisecontrol that they are conclusively presumed to be petitioning on behalf of that person and receiving

some portion of his salary to achieve that purpose. Thus, they are not simply petitioners; they arepresumptive lobbyists due to the inability to meaningfully gauge when that individual is speaking onhis own behalf or on behalf of the person who pays his salary.

11. Matter. This definition has been taken from the term lobbying contacts as defined in 2U.S.C. 1602(8)(A), and the drafter accepts its reasoning. However, the many exceptions that areincluded under that definition have been discarded as irrelevant or moot due to the differences instructure and purpose between this Act and that Title.

12. Petitioner. This term has been included here exclusively for its use in several OfficialComments in which important distinctions are drawn between the treatment of lobbyists andpetitioners. Its definition is drawn almost entirely from the text of the First Amendment of theConstitution of the United States. As is noted in later comments, all lobbyists are petitioners, but veryfew petitioners are actually lobbyists.

13. Person. This term is routinely defined in this manner and is perhaps more aptly referred to aslegal persons. It includes individuals, so-called natural persons, as well, but some portions of this Actrequire the inclusion of legal persons to have necessary, practical effect.

14. Regulated industry as applied to appointed officials. This concept only arises in Part Four ofthis Act. It is a construct for any persons whom an appointed official may have had incentives to


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favor during the course of his time in office by virtue of their having important adjudicative decisionsheard before his regulatory agency in which they were clearly vested. The drafter strongly consideredincluding a concept that would have required a more substantive inquiry into who has interests in a

particular appointed officials adjudicative decisions, but this definition was ultimately chosen for itsease of application, enforcement and record-keeping.

15. Regulated industry as applied to Congressional elected officials. This concept is roughlyanalogous to the definition of regulated industry as applied to appointed officials. However, asdiscussed in the Official Comments to 402, the drafter has elected to limit the application of thisconcept to that officials participation on a legislative committee. Since elected officials includesoffices such as the President and the Vice President who do not specialize in the same manner asCongressional elected officials, they have been excluded from the operation of this definition.

16. Staff. As discussed in Official Comment 7 above, staff are mainly defined by what they arenot, i.e., those who work in either the Legislative or Executive branches of the Federal governmentand who are neither elected nor appointed officials. So, staff constitutes the vast majority of thesetwo branches of the Federal government, and the drafter is aware that their duties, salary, experienceand knowledge likely differs greatly. As such, staff is subjected to the strictures of this Act only

where the drafter has deemed their participation to be essential.

17. Value. This term casts a very wide net. It appears in many place in this Act, perhaps mostnotably in 301. It includes everything from money to promises to give someone a job at anunknown point in the future. This definition has been constructed in this fashion with an eye to themany ways that a disreputable individual may attempt to persuade an elected or appointed official.

104. Construction Against Implied Repeal.

No part of this Act shall be deemed to be impliedly repealed by subsequent legislation if suchconstruction can reasonably be avoided.

Official Comment

1. This Act has carefully considered permanent regulative intent and should not lightly be regardedas impliedly repealed by subsequent legislation. If a subsequent law is to repeal this Act, it should doso explicitly and with the public having full notice of the actions and intent of the legislators whosupport such repeal.

105. Severability.

If any provision or clause of this Act or its application to any person or circumstance is heldinvalid, the invalidity does not affect other provisions or applications of this Act which can begiven effect without the invalid provision or application, and to this end the provisions of this

Act are severable.

Official Comment

1. This section is a technical safeguard against the contingency that any provision of this Act may beheld to be unconstitutional or otherwise invalid. In such an event, the remaining provisions that canstill be given effect are to remain valid law.


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106. Use of Singular and Plural; Gender.

In this Act, unless the statutory context otherwise requires:

(1) words in the singular number include the plural, and those in the plural include thesingular, and

(2) words of any gender also refer to any other gender.

Official Comment

1. This section makes it clear that the use of singular or plural in the text of this Act is generallyonly a matter of drafting style; singular words may be applied in the plural, and plural words may beapplied in the singular. Only when it is clear from the statutory context that the use of the singular orplural does not include the other is this rule inapplicable.

107. Statute of Limitations.

(a) A civil action for improper political competition lapses and is thereafter time-barred ifone year passes from the date of an individuals receipt of a right-to-sue letter, pursuant to 504,without the commencement of the action.

(b) A criminal prosecution, fine or any other penalty or remedy provided under theprovisions of this Act shall not be subject to any time bar.

Official Comment

1. Due to the extreme importance of the integrity of the federal system, the drafter does not feel thata statute of limitations, designed to give people solace that once they are far away enough in timefrom an event that a prosecution, fine or penalty based on their participation in that event will become

barred, is warranted. The drafter instead has left the determination of whether to bring whateverpenalties or remedies under this Act to the discretion of the prosecuting entity for it to determine on acase by case basis whether the evidence and eyewitness testimony is sufficiently reliable to proceed.Only in the instance of the civil action of improper political competition does a time bar arise due tothe fact that such action has the issuance of a right-to-sue letter as a necessary predicate, which is notitself subject to a time bar, and thereby provides definite notice that legal remedies are currentlyavailable to the party so notified.


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PART 2

CANDIDATES FOR OFFICE

201. Uniformity of Candidate Telecommunications and Contributions to a Candidate.

(a) If any person distributes candidate telecommunications, other than a person whom acandidate or his Treasurer has directly paid to do so, then he commits a corrupt practice in thefirst degree. If such person is not an individual, then the chief executive or executives of theperson who has distributed the candidate telecommunication commits a corrupt practice in thefirst degree.

(b) If any non-individual person, other than a candidates campaign in which all contributionsare routed to the candidates Treasurer without exception, accepts contributions, which havebeen contributed with the intention of expressing support or lack of support for a candidate, thenthe chief executive or executives of the person who has accepted such contributions commits acorrupt practice in the first degree.

(c) Contributions from any and all persons to a candidate or his Treasurer shall be subject tothe same maximum limit as is imposed on individuals.

Official Comment

1. Subsection (a) aims to eliminate the confounding participation of groups and persons otherthan campaigns who deliver campaign messages via telecommunications during an election. Thedrafter sees a compelling interest in the public being able to correlate a candidatetelecommunication with a specific candidates campaign for the purposes of accountability andclarity of messaging. Other persons may very well have an interest in speaking in an election inthis fashion and in this medium, but this interest is decisively overshadowedby the publicsinterest in knowing which candidate is speaking and for what purpose. Besides, such other

persons who wish to support a candidates campaign in this medium may still offer financial orin-kind contributions to the campaignbut not at the weighty expense of the publics interest inbeing able to ascertain exactly what messages are being delivered by which candidate. Moreover,this section does not affect any messaging that takes place in print, by telephone, the internet oremail. The drafter has omitted criminalizing messages delivered in these other media due to thehigh likelihood that unsuspecting citizens who are not well-versed in election law would beunfairly captured by the operation of such a law, which would then likely have a chilling effect onfree speech. Also, these alternate media afford the recipient of the message a better chance ofanalyzing the source of the message as well as their possible motives by virtue of the recipient ofthe message being able to control the amount of time that he may inspect the message. Nosimilar control exists for the recipient when messages are delivered via broadcast, cable orsatellite communication.

2. Subsection (b) attempts to eliminate the existence of so-called PACs and Super PACs aswell as any other legal entity set up exclusively to financially support a campaign, either directlyor indirectly. Of course, some entities may have purposes other than simply managing indirectcontributions to a given campaign, and such entities are not eliminated. They are simply bannedfrom performing that task. The drafter sees the present state of the campaign finance system as abizarre and inexplicable latticework of groups interacting amongst themselves, often at theexpense of transparency from the perspective of the public. Further, the drafter sees minimal gainfrom this byzantine construction in terms of the freedom of speech that it may encourage. Indeed,


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the current structure offers an end run around the statutory maximum caps for contributions to acampaign for those savvy enough to find them. Subsection (b) also does not apply to individuals;it is intended to only capture non-individual persons who have been set up to indirectly support orattack a given campaign. Again, the purpose of this subsection specifically and 201 generally isto provide a uniform framework from the perspective of the public in order to precisely correlatewho is spending money and what candidate telecommunications are being delivered with a

precise campaign without ambiguity. At the same time, these sections can hardly be said tomeaningfully inhibit the free speech of contributors; it only controls the manner in which theyspeak for the benefit of the electorates clarity in terms of crucial decision-making.

3. Subsection (c) imposes uniformity on the maximum contributions that a person maycontribute to a campaign. The drafter sees no compelling interest of the public being served bythe present variance in the statutory maximum caps on campaign contributions and is somewhatat a loss to explain it. This subsection levels these maxima in the interest of basic fairnesstowards individuals.

4. This section in its entirety takes three, linear steps: subsection (a) streamlines the messagingof campaigns when they are aired over television, satellite or radio broadcasting so as to ensure

the publics certainty in whom is speaking and for what motives, subsection (b) streamlines anynon-individual financial support for a campaign to the campaign itself and subsection (c) imposesa uniform maximum across all eligible contributors to a campaign. The present state of thecampaign finance system is the result of countless negotiations, half-measures and fractured laws,which unfortunately results in both confusion for the public as well as unequal treatment forvarious parties under the law without a compelling reason for such discrimination. 201 is aneffort to simultaneously erase this confusion as well as level the playing field for all personsinvolved.

202. Mandatory Disclosure of Contributions to Candidates.

(a) All contributions received by a candidate or his Treasurer must be disclosed by the

Treasurer to the Federal Elections Commission. This disclosure must include 1) the name ofthe person who has made a contribution and 2) the amount of their total contribution.

(b) The Federal Elections Commission shall maintain a website detailing thecontributions made to any candidate or his Treasurer. Only persons who have contributed atotal amount equal to or in excess of 50% of the statutory maximum contribution need beincluded on the website.

Official Comment

1. This section highlights a secondary purpose of 201s uniformity provision, namely the goalof giving the public proper transparency on the issue of who is contributing to campaigns.Presently, so-called Super PACs are not required to disclose who is contributing to theirorganization. This result is an affront to the publics compelling interest in transparency in theirelection process, and the drafter has attempted to remedy this problem through 201 and 202.The drafter reasons that the complete and utter transparency of the election process is not to becompromised lest the public lose faith in the integrity of elections and vicariously the democracyitself.


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2. This section attempts to balance two competing goals: the compelling interest of the public tohave the maximum amount of knowledge about contributions to campaigns and the interest ofcontributors to campaigns to be free from any public vendettas due to their support or lack thereoffor a given campaign. The drafter does not underestimate the desirability to the public of aperson being able to support a campaign whose platform may contain unpopular speech orprinciples without facing potential intimidation for doing so. However, the drafters calculus in

determining which of these values is to prevail sees the probability of such retaliation with itsconcomitant chilling effect on the support of unpopular speech to be dwarfed by the probabilityof large amounts of unregulated money finding its way into the system and its resulting systemic,corruptive influence on the federal governments key officials. Both of these values are crucial toAmerican society, but the drafter has prioritized one over the other in this section as a result ofthe determination that, without doing so, the result of regular and cataclysmic system failurereaches an unacceptable level of probability.

203. Contributions from Lobbyists Banned.

If an individual makes a contribution to a candidate, a candidates Treasurer or anyperson who has been directed either by that individual or by operation of law to transfer said

contribution to either the candidate or the candidates Treasurerand if said individual hasalso been a lobbyist at any point in the previous two years starting from the date of thecontribution, he commits a corrupt practice in the first degree.

Official Comment

1. This section again resolves the deadlockof two competing American values: a lobbyistsFirst Amendment right to free speech and the publics interest in maintaining a government freeof undue influence and quid pro quos. In this instance, the drafter does not feel that this is a closedecision, and this section is the logical, pre-election analog to 301. Lobbyists are always free todiscontinue their employment or activity as lobbyists and thereby become free of the constraintsof this section. However, while they maintain their classification as lobbyists, they hold positionsof great influence and intimate contact with public officials and are therefore rightfully expectedto hold a proportionately higher level of ethical and moral responsibility. In conjunction with thesections of Part Three, this section operates as a redundant level of protection from misconductbetween lobbyists and elected or appointed officials, most notably through the establishment ofquid pro quos. A lobbyist is entirely free to plead his case or to logically persuade an elected orappointed official to officially adopt his position on a given matter, but such persuasion shall notinclude the implication of financial assistance in that officials re -election. The First Amendmentcontains values that were not cheaply bought by the founders of the country, and the drafter hassacrificed the smallest possible sliver of them only to salvage the coexisting value of structuralintegrity in government.

2. The drafter has elected to place the potential criminal liability on the lobbyist in this section

as the likely best cost avoiders. A campaign has many responsibilities, both in terms of its legalcompliance as well as its overall strategic effectiveness, which is not to say that they would beincapable of determining the status of their contributors in this regard but rather that therequirement of reaching such a conclusion is better placed elsewhere. Also, if the onus were tobe placed on a campaign for this purpose, it would encourage a malicious strategy of lobbyistswho may not be sympathetic to a given campaign to entrap the campaign in accepting theircontributions so as to attempt to ensnare the campaign in adverse legal ramifications. Lobbyistsare in the best position to know their classification under the framework created under this Act,


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and so, in addition to the reasons above, they are therefore best-suited to have criminal liabilityimposed on them for impermissibly contributing to a campaign.


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PART 3

CONDUCT DURING TERMS IN OFFICE

301. Lobbyists Giving Value to Elected or Appointed Officials.

(a) Any lobbyist who, directly or indirectly, gives or offers anything of value to an elected orappointed official commits a corrupt practice in the first degree.

(b) Any elected or appointed official who, directly or indirectly, accepts anything of valuefrom a lobbyist commits a corrupt practice in the first degree.

Official Comment

1. Value is defined in 103. As elected and appointed officials are likely to encounter and have tovote on matters about which they may lack knowledge or experience, lobbyists are intended to act asoutside specialists to advise and persuade elected and appointed officials on the many matters andtopics that may appear before a legislature or committee. Based on this purpose, the drafter makesthe policy decision that the powers of persuasion for lobbyists should not legally extend beyond thecogency of their arguments. This section does not make any de minimis exception whatsoever.Handing an elected or appointed official a cashiers check to directly influence his vote is

criminalized to the same extent as merely paying for an officials dinner. Note that value, asdefined in 103, includes promises of value to be delivered at some future time possibly when thatofficial is no longer in office.

2. In order to comply with this section, lobbyists and elected and appointed officials alike wouldlikely do well to simply avoid meeting under casual circumstances. For example, a lobbyist who hashad a few drinks at dinner may be naturally inclined to buy an elected or appointed official a drink inthe course of a conversation. As this section allows for no de minimis exception whatsoever, such aseemingly benign social custom would technically result in the commission of a corrupt practice inthe first degree. The drafter has elected to take this zero tolerance stance as the result of the massivepotential for abuse of any exceptions provided as well as the complete absence of any need for them.It may be convenient from a scheduling perspective for elected and appointed officials to meetlobbyists out for dinner, but it is far from indispensible. This section in no way bans the meeting ofelected and appointed officials with lobbyists in social settings; it is merely the advice of the drafter toavoid blending personal situations with official business situations.

302. Lobbyist Registration; Disclosures.

(a) In General - All lobbyists must register with both the Clerk of the House and theSecretary of the Senate, regardless of who they intend to lobby. This registration must include atthe minimum: (1) the lobbyists name, (2) his business address (3) any and all persons on behalf

of whom he is lobbying and (4) the lobbyists signature. Any other registration requirementsimposed on lobbyists from previous law are preserved and extended to include any additional,previously excluded persons that may be introduced by the definition of lobbyists as defined inthis Act.

(b) On Specific MattersEvery elected and appointed official shall maintain a list ofmatters regarding their respective legislative, executive or administrative bodies. Any lobbyistwho wishes to lobby an elected or appointed official on a matter must register with that officials


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office by both (1) identifying or requesting the creation of a matter on which the lobbyist wishesto lobby the elected or appointed official, (2) declaring whether he is in favor of or against thematter and (3) placing his signature after his declaration.

(c) Pairing - On each matter that he intends to lobby with each elected or appointed officialand based on the information provided in subsection (b), every lobbyist who has declared tolobby in favor of a matter shall each be randomly paired with a different lobbyist who hasdeclared to lobby against it. If unpaired lobbyists remain, they shall each be added to a different,previously formed pair as necessary. If two lobbyists have been paired on a matter with oneelected or appointed official, they shall not be paired together on the same matter with any otherelected or appointed official unless such pairing is mathematically unavoidable.

(d) Changed Position on a MatterIf a lobbyist changes his position on a mattersubsequent to being paired in accordance with subsection (c), he shall notify both the elected orappointed official in question and any and all other lobbyists with whom he has been paired withregard to that matter and that elected or appointed official no later than the commencement of hisnext meeting or correspondence with said group. All lobbyists who had been paired on that

matter with that elected or appointed official must then immediately be paired again inaccordance with subsection (c).

(e) Effect of Lobbyist SignatureWhen a lobbyist signs documents in compliance withsubsections (a) and (b), his signature (1) affirms that all of the information given in compliancewith subsections (a) and (b) is true and complete and (2) demonstrates his acceptance of the dutyto update said information no later than the commencement of his next meeting orcorrespondence with an elected or appointed official if and when said information becomesuntrue or incomplete.

(f) Misconduct/Breach of Duty - If a lobbyist

(1) provides inaccurate information under subsection (a) or (b),

(2) fails to timely disclose his changed position on a matter in accordance withsubsection (d), or

(3) fails to timely update information provided in subsection (a) or (b) in accordancewith subsection (e),

then the lobbyist commits a corrupt practice in the first degree.

Official Comment

1. This section establishes the structural framework for the accomplishment of Part Threes

conceptual objective. Conceptually, the drafter aims to create a mechanism of enforcement for 301by establishing a system of rivals on the assumption that no one has a higher incentive to police alobbyists activity than that lobbyists opponent on a matter. To create this structure, subsection (a)begins by requiring the registration of lobbyists. That registration includes any and all persons onbehalf of whom that lobbyist represents, which is pertinent to 603, a provision that imposes a fine onthose principals if and when their agent lobbyists are convicted of misconduct under this Act. Asdiscussed in the Official Comments to 603, that fine is intended to provide additional incentives andpressure to channel the behavior of lobbyists towards its optimal, socially-efficient purpose.


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2. Subsection (b) requires lobbyists to identify their positions on matters for pairing purposes. Oncepaired with a lobbyist who takes the opposite position on a matter, 303 criminalizes the contact of alobbyist with an elected or appointed official when it does not take place in the presence of the otherassigned lobbyist. In this manner, subsection (b) continues to build the needed structure in order togive 303 practical meaning, namely, by requiring the lobbyist to state under penalty of law which

side of the matter he intends to argue. Both subsection (a) and (b) require the lobbyist to provide hissignature after he completes the documentation required in those subsections, and the effect of hissignature is given in subsections (d) and (e).

3. Subsection (c) details the process of pairing lobbyists in order to establish a system of rivalsbetween them. The drafter reasons that lobbyists, as defined in this Act, are not ordinary petitionersunder the First Amendment in that they are likely to be both significantly more sophisticated incomplex matters of industry and governance as well as in positions of great influence either of theirown accord or by proxy. These advantages give lobbyists a precarious position of strength whenmeeting with an elected or appointed official who may lack either or both. These qualities and theirlikely concomitant resulting influence if allowed to proceed unilaterally are what the drafter seeks totemper by compelling lobbyists to exercise their First Amendment rights in rivalrous pairs or groups.

4. Subsection (d) provides for the effect of a changed position on a matter by a lobbyist. Forwhatever reason, a lobbyist or his principal may feel that they wish to change their position on amatter at any time, and they may. However, this change in position must be reported to the entirepaired group as well as the elected or appointed official in a timely fashion. Obviously, a changedposition on a matter means that instead of having two (or more as the case may be) diametricallyopposed lobbyists on a matter, it is possible that both lobbyists will have aligned interests and willtherefore have significantly less interest in policing the other, which could result in a corruptingenvironment. In light of this, a lobbyist who changes his position on a matter is compelled to disclosethis change, which will result in the dissolution of the pairing and the re-pairing of all concernedlobbyists with other, rivalrous groups.

5. Subsection (e) provides the effect of a lobbyist signature when given in accordance withsubsections (a) and (b). A lobbyists signature is his declaration that the basic information that he hasprovided in both subsections (a) and (b) is both accurate and complete. Of course, it is possible thathis circumstances may change, e.g., on behalf of whom he is lobbying or his position on a matter. Inthat event, the lobbyists signature further demonstrates his commitment to correct, update or

complement any of the information provided so as to make it complete or accurate based on hischanged circumstances.

6. Subsection (f) details three situations in which a lobbyist will commit a corrupt practice in thefirst degree under this section. First, the disclosure requirements of subsections (a) and (b) areentirely basic and require the simplest of assertions and disclosures, but the information provided isessential to the proper enforcement of this section. For this reason, a failure to correctly provide such

information is criminalized regardless of the lobbyists intent, i.e., since the information requested isof such an elementary nature, the drafter concludes that a failure to provide it accurately necessarilyimplies the intent to deceive. Second, a failure to timely disclose a change in position on a matterthreatens the very core of the system of rivals as detailed in this section, and when such failureoccurs, the drafter conclusively presumes that it is the intention of the lobbyist to bypass the systemfor a malicious purpose. Third, as stated above, the disclosure requirements of subsections (a) and (b)are of great import to the structure of this section, and even if the information when initially providedwas accurate, it must be timely updated in order to preserve the assurances of integrity sought after inthis part.


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7. A matter is often very complex and intricate, and the drafter does not anticipate that lobbyists willever be wholly in favor of or wholly against a matter. It is likely to be the case that some parts will beobjectionable to both lobbyists in a pairing and that some sections of a matter will be both favorableto both. However, the drafter anticipates that the lobbyists will still be sufficiently at odds such thatthey will still be inclined to act as rivals rather than collude. The drafter had strongly considered

including an anti-pork provision in this Act for the purposes of attempting to better crystallize a givenmatter around its core issues, but that approach was abandoned for a multitude of reasons, not theleast of which being a lack of data on what the complete ramifications of such a ban would ultimatelymean.

8. Lobbyists are permitted to interact with the government under the ambit of the First Amendment,which prohibits Congress from cutting itself off from the public when the public wishes to petitionthe government for redress of grievances. Again, the drafter recognizes the supreme importance ofthis value in our Constitution and has generated the above structure of interaction for lobbyists withelected and appointed officials as a means of protecting both their rights under the First Amendmentand the, at times, competing value of structural integrity in the system itself. The drafter does not inany way forbid lobbyists from petitioning the government for redress of grievances but rather

recognizes the uniqueness of their position and influence and as a result requires them to monitoreach other when they do so. Petitioners who are not lobbyists as defined in this Act are whollyunaffected by this section specifically and Part Three generally. In brief, all lobbyists are petitionersunder the First Amendment and as defined in this Act, but not all petitioners are lobbyists. Thedrafter concludes that petitioners who are not lobbyists pose a substantially smaller threat to theintegrity of the system due to their comparatively less power and influence and therefore do notrequire the rivalrous system detailed here.

303. Ex Parte Contact with Elected or Appointed Officials.

(a) Any lobbyist who communicates, directly or indirectly, with any elected or appointedofficial while not in the presence of all of the other lobbyists assigned to him on that specific

matter with that specific elected or appointed official, pursuant to 302(c), commits a corruptpractice in the first degree.

(b) Any elected or appointed official who communicates, directly or indirectly, with anylobbyist while not in the presence of all of the other lobbyists assigned to him on that specificmatter in that specific pairing, pursuant to 302(c), commits a corrupt practice in the first degree.

Official Comment

1. Subsections (a) and (b) are the substantive goals of the formalistic structure laid out in 302.These subsections again conclusively presume that any unilateral communication between an electedor appointed official and a lobbyist is meant to bypass the system created under this Act, likely for acorruptive purpose. By compelling a lobbyist to be paired with a different lobbyist whose interest isdiametrically opposed to that of the former and by mandating that they only communicate with theirassigned elected or appointed official in each others presence, they both presumably have greatincentives to police the behavior of the other. The drafter also imposes on lobbyists a duty to reportpossible violations of this Act in 501.

2. The drafter intends for the phrase in the presence as used in this section t o be interpretedsubstantively given the conceptual purpose of this section as outlined in Official Comment 1. The


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drafter believes that the main test of whether a communication has taken place in the presence ofanother lobbyist should hinge on whether the lobbyist was conscious of and attentive to thecommunication. For example, if Lobbyist A and Lobbyist B are paired to speak on a matter withOfficial and Lobbyist A falls asleep drunk at the bar in which they are meeting, Lobbyist Bscontinued conversation with Official from that point on shall not be considered to have taken place inthe presence of Lobbyist A. As a less clear-cut example, if Lobbyist A steps just outside of the

threshold of Officials office to take a phone call where he is both presumably out of earshot andotherwise distracted, any continued conversation between Lobbyist B and Official does not take placein the presence of Lobbyist A. On the other hand, if Lobbyist A and B wish to have a conferencetelephone call with Official, any communication with Official during that call shall be considered tohave taken place in the presence of the other lobbyist and thus in compliance with 303(a). Similarly,email or other written correspondence between Lobbyist A and B and Official will comply with303(a) so long as all parties are sent copies of all correspondence sent to Official. As shown in thelast two examples, simultaneous physical presence is not necessary to fulfill the substantive purposeof this provisions concept of in thepresence. The substantive question on the issue of presenceduring a communication is whether the other lobbyist has been placed in a situation where he has boththe awareness and the opportunity to monitor the communications of his lobbyist counterpart.

3. This section makes no exception of any kind. The drafter has made this decision under theassumption that any minor exception could wind up swallowing the entire rule. If a lobbyist wishesto contact an elected or appointed official even for rote tasks such as scheduling appointments, hemust take steps to make sure that other lobbyists assigned to him on that matter are in the presence ofthat communication. The drafter concludes that if there are to be exceptions for some de minimis,natural human behavior that may technically fall within the scope of subsection (b) that prosecutorialdiscretion is the better tool with which to make that assessment. Such an assessment should at theminimum take into account the length of the communication, the exact circumstances of thecommunication, as well as any other witnesses to it that may provide some substance of what wassaid.

4. A possible strategy that may arise under this system is for one lobbyist to simply refuse to meet

with an assigned elected or appointed official in order to prevent his counterpart from being able tomeet with that official for whatever tactical purpose. This Act does not prohibit this behavior as thedrafter expects it to ultimately fail. For one, sending emails or other correspondence to an elected orappointed official does not require a lobbyists counterpart on a matter to consent; all that is requiredis that he or they be sent an identical copy of such correspondence. Many lobbyists meet with manyelected and appointed officials, and even if a large number of them stalemate each other into notbeing able to meet with a given official, it is impossible from a game theoretical perspective for bothsides to completely neutralize each other such that no debate on a given matter is heard by theofficial. Besides, the two sides of a given matter will never be uniformly staunch, and that additionalvariance ensures that some officials will certainly hear a debate on the matter that they can then sharewith their colleagues as they see fit. Moreover, the drafter does not see a practical way in which tocompel lobbyists to schedule meetings in good faith as there is no meaningful standard with which to

gauge such behavior. Exercising good faith behavior in this regard is left to be monitored andhandled by the community of lobbyists and elected and appointed officials among themselves.Finally, ordinary petitioners who are not lobbyists are given no guarantees of being able to meetpersonally with elected or appointed officials, and the drafter for all of the above reasons sees noreason why lobbyists ought to be afforded unique privileges in this regard simply by virtue of beingpaid to be petitioners.


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304. Creation and Maintenance of Database of Lobbyists in Breach of this Act

(a) The Department of Justice shall create and maintain a website database containingpertinent information of any and all lobbyists who have been convicted of a corrupt practice in

the first degree or who have settled a prosecution against them for a corrupt practice in the firstdegree. At the minimum, the website database shall include the lobbyists full name, his lastknown business address, the relevant provision of this Act under which he has either beenconvicted or has settled out of court and the date of the settled or convicted infraction.

(b) Any settlement between a federal prosecuting entity and an accused lobbyist that containsan exemption from the accused lobbyists inclusion in the database as outlined in subsection (a)is void and shall in no way abridge the rights afforded to other persons against the lobbyist asoutlined in 504 and 505.

Official Comment

1. The drafter recognizes that lobbyists, as with all petitioners, have a crucial First Amendment rightto petition the government for a redress of grievances. The First Amendments guarantee of the rightto so petition the government is a crucial value in American society, but it is not the only value thatwe have. There is also the value, under the present circumstances a competing value, that says that ina democratic system of government, the electorate should be afforded transparency in the actions ofthose who are in regular, intimate contact with elected and appointed officials. The drafter hasconcluded that the minor disclosure compelled here, already presumably available from other publicrecords, is an appropriate set of information to amass in one place for the benefit of the public andother state and local governments who may be lobbied by the same people.

2. Subsection (b) declares that any settlement between a prosecuting entity, presumably theDepartment of Justice, and an accused lobbyist shall not include an exemption from the database

created in subsection (a). The drafter recognizes the general desirability of settlements from theperspective of expedited disposition of cases as well as a conservation of government resources.However, the drafter has determined that the possibility of obtaining such an exemption viasettlement would provide an impermissibly lavish incentive to settle at the expense of the publicscompelling interest in knowing who may be regularly flouting important protections of thegovernments integrity. It is likely that any accused lobbyist will have many other incentives tosettle, and the fact that such an exemption is off the table is simply a fixed variable to assess in anygiven calculus as to whether he finds a settlement offer acceptable.

305. Tax Rate for Realized Gains on Securities for Elected and Appointed Officials.

During his term in office, an elected or appointed official who realizes a gain on any stock,

bond, derivative or other financial instrument that has been or is capable of being traded througha securities market shall pay a tax rate, not to exceed 60%, on that gain equivalent to triple thatof the ordinary, applicable tax rate for the given, realized gain.

Official Comment

1. This section is a miscellaneous provision, designed to temper the great potential for self-dealingand insider trading that arises among lawmakers and regulators. Elected and appointed officials all


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have access to unique, often extremely momentous information by the nature of their positions ofwhich the general public is often unaware, and this is not an occasional happening. It is entirelyconceivable that an elected official may have access to a new piece of salient, actionable informationevery day. Due to both the high quality and quantity of information that exists in these groups, thedrafter believes that policing such a situation is both unrealistic and ineffective and therefore does notacknowledge the recent passage of the STOCK Act as a meaningful solution in and of itself.

However, the drafter hesitates to impose an absolute ban on elected and appointed officials fromowning securities for the reason that there are potentially unforeseen consequences of such anapproach. One such concern is that such a ban may have the unintentional effect of dissuading a largeportion of supremely qualified and ethical potential public officials from considering the job at all dueto superior financial opportunities elsewhere. Without more information, the drafter is unable toconclude that this concern is sufficiently insignificant as to warrant a flat ban. Regardless, the act ofself-dealing on information gained by virtue of being placed in a position of public trust is thoroughlyintolerable, and the drafter has decided to split the difference in this section by significantlydecreasing the incentive to do so via an increased marginal tax burden for such transactions.


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PART 4

CONDUCT AFTER CONCLUSION OF TERM IN OFFICE

401. Bar from Employment in Regulated Industry; Appointed Officials.

(a) If an appointed official accepts employment with any person in his regulated industry asapplied to appointed officials for four (4) years after the expiration of the officials term, then hecommits a corrupt practice in the first degree.

(b) The four (4) year term will commence on the day after the official end of the term of theappointed official. If the appointed official is reappointed to his same office at any later point, anew four (4) year bar under subsection (a) will commence from the expiration of the later term.

Official Comment

1. This section deals with the problem of the so-called revolving door in and out of government.The drafter recognizes that the allure of a private industry position may become increasingly

influential on an appointed officials judgment as he approaches the end of his term and exists onsome level throughout his term. However, the hopping in and out of regulatory agencies into theprivate sector which is being regulated by such agencies creates a high incentive for an appointedofficial to engage in self-dealing at the expense of the public. Therefore, this section creates whatwould be analogous to a non-compete clause that private companies often place in contracts withemployees. By barring an appointed official from his regulated industry for four years after theexpiration of his term, the drafter concludes that this will provide more guarantees that the appointedofficial is not sacrificing the integrity of his position for his personal gain.

2. Regulated industry as applied to appointed officials is defined in 103. The definitionemployed in this Act for regulated industry is intended to both cast a wide net as well as providestraightforward rules. Generally speaking, the drafter has defined regulated industry as applied toappointed officials in such a manner as to cordon off appointed officials from any prospect ofsemblance of self-dealing when it comes to his decision-making in his office. The main focus ofthree of the subsections of the definition is any person who has been a party to or who has in any wayparticipated in an adjudication before that appointed official. The reasons for this should be self-evident. The fourth subsection intends to close a possible backdoor by capturing the principals of anylobbyist agent who has been utilized to lobby the appointed official without the person itselfbecoming technically captured by the operation of the first three subsections. The argument that theconcept of regulated industry as herein defined may chill the participation of persons in theadjudication or lobbying process due to their inability to later employ a given appointed official is itsown refutation. The desire to employ such a person at a later time at worst implies the desire toinfluence his office improperly and at best implies a failure of imagination in how to attract othertalent. Appointed officials command vast resources and make rulings and decisions that have broadimpact on society. The fear of not being able to employ a given appointed official for four years afterhe leaves office simply by virtue of having to engage him in his current office is of no significancewhen compared to the assurances that the public ought to receive that that official is discharging hisduties with the highest standard of ethical care.

3. The drafter is aware that many companies and business organizations diversify their interestsacross many areas of business. The concept of regulated industry as applied to appointed officials asdefined in this Act is intended to place substance over form, i.e., to ignore the structure of the positionin relation to other, seemingly distinct organizations in favor of focusing on the substantive alignment


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of interests across a company and all of its branches and subsidiaries. Had the drafter elected to notstructure his analysis along these lines, a lavish loophole would have been created in that a massivecompany that has a major interest in, say the pharmaceutical industry, but that has also purchased andowns other completely unrelated subsidiaries, could bypass the substantive purpose of this entire partby simply offering the appointed official a nominal job in one of its industrially unrelated subsidiarieswhile still being able to gain the benefit of favorable rulings from the appointed official for the bulk

of its business. The drafter finds this behavior impermissible and has therefore opted for a moresubstantive inquiry into the total interest of any organization that offers an appointed official aposition.

402. Bar from Employment in Regulated Industry; Congressional Elected Officials.

(a) If an elected official in the Legislative branch of the Federal government acceptsemployment in his regulated industry as applied to Congressional elected officials for four (4)years after the expiration of the officials participation on a legislative committee, then hecommits a corrupt practice in the first degree.

(b) The four (4) year term will commence on the day after the official end of the electedofficials membership on a legislative committee. If the elected official becomes a member ofthat committee at any later point, a new four (4) year bar under subsection (a) will commencefrom the expiration of the later term.

Official Comment

1. The official comments for 401 are generally applicable by analogy for this section. However,on the issue of elected officials, the drafter has concluded that such officials hold positions where theyare compelled to make decisions on a myriad of issues affecting such a variety of industries that itwould be improper and unrealistic to bar them from every industry in which they cast a vote on agiven law. To do so would effectively disqualify them from working at all in the private sector after

they leave office. Nevertheless, the drafter recognizes that elected officials do indeed havespecialties, as demonstrated by their membership to certain legislative committees. For example, anelected official who serves on the Armed Services Committee will likely deal with many matters ofgreat import to defense contractors and other such entities. It is this committee membership on whichthis section focuses. In the above example, the elected official who leaves the Armed ServicesCommittee, either by leaving office entirely or simply becoming a member of a different legislativecommittee, will be considered barred from the regulated industry as applied to Congressional electedofficials according to the four subsections of the definition. This time bar, as in 401, is intended toexclude the allure of outside influences who may attempt to persuade the decisions of such electedofficials improperly.

2. The drafter is aware that this section potentially bars Congressional elected officials from a vastarray of private positions after they cease to serve in office. However, the drafter concludes thatbeing an elected official is a position of great honor, privilege and most importantly, public trust. Theinterest of the public in having an elected official that assesses legislation based on his and hisconstituents best interests is so compelling that it warrants the strong protective measure det ailed inthis section. As noted in the Official Comments to the definition of regulated industry as applied toCongressional elected officials, the offices of the President and Vice President are intentionallyexcluded. Those offices do not have any analogous specialties as exist in the Congress, and they aretherefore not suitable individuals to receive this treatment, lest they be completely barred fromaccepting employment once they leave office.


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403. Bar from Employment as Lobbyists.

Any elected official, appointed official or staff who, for the remainder of his life, becomes alobbyist commits a corrupt practice in the first degree.

Official Comment

1. A lifetime ban from a certain line of work is nothing that the drafter has taken lightly. It is anextreme measure but necessary for the sake of redundancy in the system created in this Act to guardagainst corrupt practices. Part Three of this Act establishes an incentive-based adversarial system tocompel lobbyists to monitor each others conduct. It might be asserted that that part alone should besufficient protection to the integrity of the system when it comes to lobbyists such that this sectionwould not be necessary. However, the drafter believes that the danger of entrenched powerbrokerslingering in and around the government poses a sufficient threat as to warrant redundant levels ofprotection. Elected and appointed officials hold great privilege and make powerful associations basedon their positions; their experience as lawmakers or regulators as well as the likely camaraderie thatthey would maintain with still serving elected or appointed officials make their continued presence inthe capacity of a lobbyist an unacceptable risk that would continue for an indeterminate period of

time.

2. The First Amendment of the Constitution of the United States forbids Congress from making anylaw abridging the right of the people to petition the government for a redress of grievances. Thedrafter understands the monumental importance of this value in American society and has thereforedrafted this section as to preserve a former elected or appointed officials First Amendment right topetition the government on any issue as he sees fit. This section only precludes him from doing so forprofit or in any manner that would place him in the definition of lobbyist as defined in this Act. Thedrafter concludes that, under such circumstances, any petitioning undertaken by a former official willminimize any residual, undue power he may still wield as a result of his having once held office whilestill permitting the unfettered exercise of his First Amendment rights.


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PART 5

ENFORCEMENT

501. Duty to Report.

(a) For Elected Officials, Appointed Officials and LobbyistsAll elected officials,appointed officials and lobbyists are under a duty to report to the Department of Justice thecommission of any element of a corrupt practice, regarding which the elected official, appointedofficial or lobbyist has actual or constructive knowledge.

(b) For StaffStaff is under a duty to report to the Department of Justice the commission ofany element of a corrupt practice, regarding which the staff has actual knowledge.

Official Comment

1. This section relies on the concept of pitting those who commit corrupt practices against eachother as a means of enforcement of this Acts provisions. The drafter sees no need to create another

agency or regulatory body to monitor the discussions of elected officials or appointed officials; such abody would likely be both wasteful and largely ineffective for many reasons, e.g., the likelihood ofcorruption of the regulatory body itself, the waste of resources in chasing down offenders. Inrecognition of this practical problem, this section imposes a duty to report the commission of corrupt

practices as this Acts main enforcement mechanism to complement ordinary law enforcementinvestigation. The consequences of a failure to satisfy this duty is dealt with in 502 below.

2. Constructive knowledge is defined in 103. Elected and appointed officials are to be held to ahigher standard of knowledge given their special access and frequency with which they interact witheach other and therefore a more stringent duty to report, which is to say that their willful ignorance toevents that they should know constitute or signal an element of a corrupt practice does not satisfy theduty imposed by this section. In other words, turning a well-timed blind eye at a critical junctureduring a conversation where a corrupt practice has taken place will not save an elected or appointedofficial from a breach of his duty to report. On the other hand, staff is held only to a duty to report onmatters about which they have actual knowledge. Staff, as defined in this document, are generallyless-trained, short-term employees who the drafter feels will be exposed to unnecessary levels of riskby imposing the same level of duty to report due to the likelihood of their failure to appreciate thegravity of certain, seemingly benign events, given their likely inexperience in the area. However, thedrafter does not agree that staff should be completely absolved from maintaining any duty to reportunder this Act. Staff is relied upon by elected and appointed officials to a massive extent, and theyare in a unique position to be able to regularly inspect the behavior of such officials. Due to suchexposure, their duty to report on any activity about which they have actual knowledge is bothindispensable and required under this section.

502. Failure to Report.

(a) For Elected Officials, Appointed Officials and LobbyistsThe failure of any electedofficial, appointed official or lobbyist to report the commission of any element of a corruptpractice, regarding which the elected official, appointed official or lobbyist has actual orconstructive knowledge, is a corrupt practice in the first degree.


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(b) For StaffThe failure of any staff to report the commission of any element of a corruptpractice, regarding which the staff has actual knowledge, is a corrupt practice in the seconddegree.

Official Comment

1. This section is included to give practical effect to 501. A duty to report is a meaningless one ifthere is to be no penalty for a breach of that duty. By defining a failure to discharge ones duty toreport as imposed under 501 as a corrupt practice, the drafter assumes that a failure to discharge a501 duty to report implies ones complicity in the original offense itself and therefore ought to carrythe same exposure to legal punishment as set forth in the next part. This is a simplifying assumption,but one that also strives to become a prescriptive norm. Surely, not everyone who has failed to reportan element of a corrupt practice to this point in time has been complicit in the action itself. However,up to this point in time, those same people have not been properly incentivized to report such activity.The drafter believes that defining a failure to discharge ones 501 duty to report as a corrupt practicegives those upon whom duties have been imposed to raise their behavior and awareness to anappropriate level where those who are truly not complicit in such activity will be able to avoid beingcaptured in any of the above statutes.

2. This section provides the disincentive for people already in unique positions to shirk theresponsibility of monitoring the behavior of elected and appointed officials. However, positiveincentives to report such activity have been included in 603 and 604. By incentivizing both formsof reporting behavior, the drafter has made the policy decision that false alarms are preferable tounreported crimes in this area.

503. Anti-Retaliation for Good Faith 501 Reporting

If an elected or appointed official retaliates in any way against any staff because that staff hastestified, assisted or participated in any manner in an investigation, proceeding or hearingregarding the commission of a corrupt practice in the first or second degree when suchtestimony, assistance or participation is a result of that staffs good faith fulfillment of his 501

duty to report, then that elected or appointed official commits a corrupt practice in the firstdegree.

Official Comment

1. This section is a necessary, practical adjunct to 501(b). In that section, the drafter imposes aduty to report the commission of any element of a corrupt practice under this Act. However, thedrafter recognizes that staff will be wary of reporting in accordance with that section so long as theysuspect that they or their jobs themselves are vulnerable to retaliation for such reporting. This sectionintends to remove that concern on the part of the staff by heavily penalizing such action. Considering

that such an action against a reporting staff would be very visible and easily inspected, the drafterbelieves that to make such action a corrupt practice in the first degree will go far towards eliminatingsuch behavior and thus to ease the concerns of staff. The compliance of staff with 501(b) is a crucialelement of the enforcement of the provisions of this Act, and the drafter does not take the resultingobligation placed on them lightly.

2. The scope of retaliation prohibited under this section is wide and includes everything fromoutright termination of employment to more subtle penalties, e.g., a decrease in pay. Of course, thissection does not prohibit these actions when they are based on otherwise good cause, and the timing


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of the negative actions towards staff will be significant, circumstantial evidence to determine whetherthe elected or appointed official who takes them are in defiance of this provisions protectivemeasures.

3. The drafter has elected not to include staff who may be retaliated against in the civil actionframework set up by 504 and 505 due to the concern that elected or appointed officials may be

unduly distracted from their official business with such actions if they were permitted. Also, as statedin Official Comment 1, an elected or appointed official who retaliates against staff takes a veryserious roll of the dice in doing so, considering that if there is any semblance of impropriety in hiscourse of action, the staff who has been set at a disadvantage will likely report this action to the DOJ,pursuant to his 501 duty to do so as well as his own rational self-interests. 602 would also operateto reward that reporting staff monetarily for a successful conviction based on such report, and thedrafter believes that in this manner, staff has reasonable protections against retaliation as well as areasonably analogous manner in which to achieve civil reward.

4. Good faith is defined in 103. This phrase has been included in this section to preclude thepossibility of any deluge of complaints by staff. The elements of corrupt practices outlined in thisAct are simple and based on clear, bright line rules that are not subject to a great deal of

interpretation. Also, staff is only held to a reporting requirement on information about which theyhave actual knowledge. Therefore, considering the clarity of the rules to be policed and the limitedknowledge requirement imposed on staff for purposes of his duty to report, good faith reportingshould be relatively clear. The drafter has included this additional element solely to avoid protectingexcessive amounts of reporting that may be undertaken with motives outside of the staffs 501(b)duty to report.

504. Right-to-Sue Letters.

(a) After 90 days of the reporting of an accused lobbyists alleged breach of 301, 302 or303 of this Act, regardless of who has made such report, if the Department of Justice (DOJ) has

not commenced a criminal prosecution on the basis of such report, then a lobbyist or lobbyistsshall be entitled to a right-to-sue letter from the DOJ against the accused lobbyist for improperpolitical competition if the accused lobbyists alleged breach of the aforementioned sections ofthis Act:

1) took place while paired with the lobbyist or lobbyists on a specific matter with a specificelected or appointed official, and

2) relates to the accused lobbyists conduct with that given pairing on that specific matterwith that specific elected or appointed official.

(b) Any and all lobbyists who would be entitled to a right-to-sue letter as described in

subsection (a) after the expiration of the applicable 90-day time period mentioned therein shallbe immediately informed by the DOJ both that it has received a report accusing a lobbyist intheir pairing of an alleged breach of 301, 302 or 303 of this Act as well as the precise date thatsuch report was received.

Official Comment

1. This section acts as a private enforcement mechanism against lobbyists who act in breach of thisAct. The structure imposed in Part Three depends on practical enforcement for its theoretical


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workings to have effect. On this point, the drafter reasons that redundancy in the area of practicalenforcement is valuable. For any number of reasons, the Department of Justice may be unwilling orunable to bring a criminal prosecution against a potentially offending lobbyist. In that event, thecreation of a civil action occurs in order to give the party with the most incentive to bring such a suitan opportunity to both enforce the spirit of this Act as well as personally gain from a positivejudgment. In the alternative, if the DOJ does proceed with a criminal prosecution in a timely fashion,

then no such civil action arises.

2. The reasoning of subsection (a) is simpler in lay terms: a lobbyist in breach of any of the relevantsections of this Act is presumed to have been in breach in order to gain a political advantage over theother lobbyists with whom he has been paired on a given matter with a given elected or appointedofficial. The actions that have been criminalized in 301, 302 and 303 are extremely simple bydesign such that one would know instantaneously if one was in breach of them. It is the desire andgoal of the drafter in this section as well as many others in this Act to regulate the behavior oflobbyists by incentivizing their policing of one another. To that end, this Act has intentionally pittedthem against one another in order to wring out the socially optimal result from their lobbyingbehavior, and this subsection is a crucial element to that overall strategy.

3. Subsection (b) is a safeguard against the possibility that a lobbyist who may be entitled to a right-to-sue letter is actually unaware that potential wrongdoing to his detriment has taken place.Subsection (a) does not require that a lobbyist who may be entitled to a right-to-sue letter actuallymade the report of the suspected wrongdoing himself. In that case, it is possible that that lobbyistwould not know either that a member of his pairing is under investigation for potential wrongdoing orfor how long. In either event, his knowledge of such report and resulting investigation is importantfor his being able to monitor and enforce the rights granted him under this Act should they arise dueto inaction by the DOJ.

505. Civil Action for Improper Political Competition.

(a) For a lobbyist, a cause of action for improper political competition arises against any

lobbyist with whom he has been paired when he receives a right-to-sue letter from theDepartment of Justice, pursuant to 504.

(b) A petitioning lobbyists cause of action for improper political competition against anylobbyist with whom he has been paired shall be adjudicated as successful and the respondentlobbyist shall be found liable if the petitioning lobbyist proves by the preponderance of theevidence that the other lobbyists alleged breach of 301, 302 or 303 actually occurred.

Official Comment

1. Subsection (a) of this section is formality. The drafter has created the civil cause of action ofimproper political competition as a mechanism of controlling lobbyist behavior by indirectlyincentivizing their protection of the integrity of the system via the pursuit of their own rationalinterests. As it is a new action without any applicable jurisprudence to articulate precisely what ismeant by it, subsection (a) makes clear that the prerequisites for the issuance of a right-to-sue letterunder 504 and the prerequisites for the accrual of this cause of action are identical with the minor,practical difference that the lobbyist must receive notification of the accrual of his cause of action,i.e., his right-to-sue letter.


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2. Subsection (b) is very straightforward and completes the conceptual framework that begins in504. Again, the provisions of 301, 302 and 303 are plain and easily avoided with any effort. Ifone does come in violation of those provisions, the drafter is comfortable in presuming that they havedone so with less than honorable intent. Indeed, as with all of the criminal provisions in this Act, theactions that have been criminalized are criminalized simply because they have occurred, i.e., onesintent is of no relevance. Such strict liability crimes must be exceedingly clear and crucial to some

value in society in order to be warranted. In this case, the drafter has taken great care to articulate theactivities that are forbidden with supreme clarity and can think of few values more important tosociety than the integrity of the government that controls society. Note also that in this section,petitioning lobbyist refers to a lobbyists status as a person bringing a civil suit in court and does

not refer in any way to the term petitioner as defined in 103 of this Act.


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PART 6

PENALTIES

601. Minimum Mandatory Sentencing for Commission of Corrupt Practices.

(a) The commission of a corrupt practice in the first degree is a Class C felony that shall carrya penalty for each convicted offense of a term of incarceration of not less than ten (10) yearswithout the possibility of parole, probation or early release as well as a maximum fine of$250,000.

(b) The commission of a corrupt practice in the second degree is a Class E felony that shallcarry a penalty for each convicted offense of a term of incarceration of not less than one (1) yearwithout the possibility of parole, probation or early release as well as a maximum fine of$250,000.

Official Comment

1. The drafter sees tremendous incentives for government officials to compromise the trust placed inthem to faithfully carry out their duties in public office. Simultaneously, when one holds an electedor appointed office in the government, there are many forces and interested parties who areincentivized to attempt to coerce or otherwise unduly persuade an elected or appointed official to treattheir position favorably, regardless of the interests of that officials constituency or title. Given thegreat power and privilege that our elected and appointed officials wield and the great incentives theyface in compromising their position for their own personal benefit, the drafter aims to complicate thisthus far routinely-solved cost-benefit analysis on the part of the elected official or appointed officialby introducing a strong disincentive to make those who would engage in a corrupt practice to thinktwice. Those who would aim to manipulate the government via corrupt practices as stated in this Actwill always have powerful incentives to continue this behavior at the expense of the people.Therefore, the drafter reasons that the disincentive to alter that behavior must be equally powerful.

2. The only provision of this Act that results in a corrupt practice in the second degree is 502(b),which is a breach of staffs 501 duty to report. The drafter has not undertaken the decision tocriminalize an omission to report on the part of staff lightly. Indeed, it is a necessary evil from theperspective of giving meaning to their duty to report. However, the drafter has concluded that such abreach on the part of staff must fall into a lesser degree offense due to the likelihood that staff havesignificantly less to gain from corrupt practices and also due to the fact that the drafter is compellingtheir vigilance for the benefit of this Act. The drafter also anticipates that prosecutorial discretionbased on the circumstances of each unique set of facts will be an essential aid to determine the levelof culpability on the part of staff for a given omission and ultimately whether or not to press chargesagainst him.

3. The drafter has deliberately omitted the criminalization of what likely would have been referredto as an attempted corrupt practice. The omission is the result of the nature of what is beingcriminalized. This Act attempts to fracture the consolidation of power between public and privateforces and those who may be complicit in such a structure. In so doing, the drafter has criminalizedcertain activities that involve speech and communication when taking place with a person who thepublic has placed in a position of great trust and responsibility. To criminalize the attempt of suchcrimes would likely be to criminalize certain thoughts themselves, which the drafter finds to be animpermissibly intrusive, unreliable and ultimately wasteful exercise. The statutes in this Act thatcriminalize and classify behavior as corrupt practices are designed to be satisfied at a very early point


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in the potential wrongdoing, i.e., there need not be a reciprocal completion of a quid pro quo to satisfytheir criminal elements. Therefore, due to the unacceptable level of risk of criminalizing thoughtsthemselves without concomitant action in addition to the present criminalization of activity early inan expected chain of events, the drafter concludes that the inchoate offense of attempt shall not beapplied.

602. Disgorgement of Salary; Awarded Funds.

(a) DisgorgementAn elected or appointed official who is convicted of the commission of acorrupt practice in the first degree shall be disgorged of the annual salary earned for the year inwhich the first corrupt practice has been found to have occurred as well as any salary the electedor appointed official collected after that year for so long as he held that same office.

(b) AwardAn individual who has reported an elected or appointed officials commission ofany element of a corrupt practice in the first degree, regardless of his being under a 501 duty toreport, and whose reporting has led to a conviction on the basis of given information shallreceive compensation in the form of the total monies disgorged from the elected or appointed

official pursuant to 602(a).

(c) Multiple ReportsIn the event that more than one individual has satisfied the elementsof 602(b) as set forth above, then the first individual to have reported will be entitled to theentire award under 602(b), unless a subsequent individual to report gave substantial, additionalinformation in which case the award will be divided evenly among as many such individualswho had so contributed.

Official Comment

1. This section operates to supplement 601s penalty provisions as well as to provide the secondportion of the incentive structure placed around potential whistleblowers. 602(a) would operate in

an example as follows: if an elected official who has served seven years has been convicted of beingin breach of 303 in year three of his time in office, under this section, that official is to be disgorgedof the entire salary he had earned in years three, four, five, six and seven. The drafter concludes thatthis forfeiture of salary is appropriate for two reasons. First and more theoretically, the positions ofelected and appointed officials are positions of great public trust and responsibility. To have beenconvicted of a corrupt practice in the first degree demonstrates a breach of that covenant with thepublic, a breach that does not repair itself, no matter how long an elected official or an appointedofficial serves faultlessly thereafter. Second and more concretely, this approach adds necessaryincentive for elected and appointed officials to avoid the behavior proscribed in this Act by exposingthem to increasing financial penalties.

2. 602(b) is a supplemental incentive to the duty to report as laid out in Part Five. The drafter

places great value on having whistleblowers prepared to uncover breaches of this Act and hastherefore included substantial financial incentives for doing so in the form of the years of salarydisgorged from the convicted official.

603. Third Party Liability for Lobbyist Misconduct; Agency.

If a lobbyist is convicted of the commission of a corrupt practice in the first degree or isfound liable in a civil action for improper political competition, any and all persons on behalf of


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whom the lobbyist had been lobbying at the time of the commis

Documents

The SWAMP Act